State v. Boucher

• Citation: 119 Conn. 436,177 A. 383
• Court: Supreme Court of Connecticut
• Decision Date: 05 February 1935
• Parties: STATE v. BOUCHER.

177 A. 383

119 Conn. 436

STATE v. BOUCHER.

Supreme Court of Errors of Connecticut.

February 5, 1935

Appeal from Court of Common Pleas, Fairfield County; Samuel C. Shaw Judge.

Charles M. Boucher was convicted on an information charging him with violation of the state Liquor Control Act, and he appeals.

No error.

David M. Rosen and Samuel Gruber, both of Stamford, for appellant.

Richard S. Swain, of Bridgeport, and Henry B. White, of Greenwich for the State.

Argued before MALTBIE, C.J., HAINES, BANKS, AVERY, and JENNINGS, JJ.

HAINES, Judge.

The defendant, operating under a restaurant permit granted him by the liquor control commission, was charged on three counts with the violation of the provisions of his permit, namely (a) The sale of beer after 9 p. m. of Sunday, November 19 1933, and before 3 a. m. the following day; (b) allowing the consumption of whiskey on his premises; and (c) keeping whiskey with intent to sell.

It was not denied that the defendant held only a restaurant permit from the liquor control commission, which permitted retail sales of beer, ale, and wine with an alcoholic content of not over 3.2 per cent. by volume, to be consumed on the premises but which forbade the sale of other alcoholic liquors or the public consumption of spirits, including whiskey, in any public room of the inn. General Statutes, Cum. Supp. 1933, §§ 685b (e), 690b, and 689b. Nor was it denied that any sales under the defendant's restaurant permit were unlawful if made between the hours of 9 p. m. of Sunday and 9 a. m. of the following day. Section 730b.

The first assignment relating to claimed errors in the finding is not pursued and need not be considered. Heslin v. Malone, 116 Conn. 471, 476, 165 A. 594.

After the plaintiff had rested its case, the defendant moved to dismiss the information and the court denied the motion; and after the defendant had rested and before the case was submitted to the jury, the defendant moved that the court direct a verdict of not guilty, and this motion the court also denied. These rulings are the second and third assignments of error, but under our practice they are not properly so assignable. Callahan v. Jursek, 100 Conn. 490, 492, 124 A. 81; Dimon v. Romeo, 99 Conn. 197, 203, 121 A. 352; Kiely v. Ragali, 93 Conn. 454, 458, 106 A. 502; H. Wales Lines Co. v. Hartford City Gas Light Co., 89 Conn. 117, 125, 126, 93 A. 129.

In the fourth assignment it is claimed the court failed to distinguish in the charge between the liquor referred to in the second and that referred to in the third count. The same language was used in the request for a finding: but it is all too general and its meaning too obscure to call for consideration. Practice Book 1934, pp. 107, 108, §§ 362, 363.

The remaining assignments are directed to various selected portions of the charge, some of which, however, are so obviously not erroneous that no discussion of them is necessary.

The court charged that it was not a crime to sell any liquid which did not contain more than one-half of 1 per cent. of alcohol and added: " So that here you have not only got to find, before you can bring in a verdict of guilty, that he did the acts claimed in the information but you have got to find that the beer which it is claimed he sold during the forbidden hours and the whiskey which he kept for sale contained more than one-half of one per cent. Of course you have a right to take all of the evidence into account in determining that fact. You haven't any analysis by a chemist here before you. That, of course, would be an absolute test. But I charge you that that is not the only method of determining whether or not these particular liquids, beer and whiskey, in this case, did contain more than one-half of one per cent. But you have got to find that fact just as you find every other fact here, beyond a reasonable doubt, in order to find the accused guilty." The defendant's statement of his objection to this portion of the charge is that since the Liquor Control Act of this state specifically exempts liquids or solids containing less than one-half of 1 per cent. of alcohol by volume, it thereby makes it incumbent upon the state in a case like the present to prove the alcoholic content by chemical analysis.

The charge that the law did not apply to liquors or not more than one-half of 1 per cent. of alcohol is clearly correct. General Statutes, Cum. Supp. 1933, chap. 151, § 670b (5), p. 288. The purpose of the act is the control of the sale of alcoholic liquors. This term, as used in the act, includes alcohol, spirits (which includes whiskey), and also wine and beer of an alcoholic content of more than one-half of 1 per cent. by volume. Section 670b (5) and (2). It does not necessarily follow, however, that because liquor with less than one-half of 1 per cent. of alcoholic content is thus treated by our General Assembly as nonintoxicating, the proof of an alcoholic content in excess of that percentage in a given case under our act can only be established by the opinion of an expert chemist who has analyzed the liquor in question.

It is true, as the defendant contends, that the act permits a chemical analysis. In a pending prosecution under the act, if a sample is presented in court, " it may order such sample to be conveyed to a state chemist for analysis." Section 747b, p. 313. This is permissive but not mandatory. The language of the provision itself indicates that it was not intended to lay down any exclusive method of proof. Whether the liquor in question was " alcoholic liquor" within the above definitions is a question of fact. Like any other fact, it may be established by any relevant evidence, direct or circumstantial, or by inferences reasonably drawn from other competent facts established. All admissible evidence upon the question, including that offered by an expert chemist, must be received and weighed by the jury, to whom alone is committed the final conclusion as to whether the liquor in question is within the terms defined by the Liquor Control Act. The scope of that portion of the act in force on the date named is such that former decisions of this court under the old law may, under some circumstances, still be relevant and of value.

Where the defendant in a liquor case asked ...