State v. Cleary

• Decision Date: 23 June 1922
• Docket Number: 25318
• Citation: 152 La. 265,92 So. 892
• Court: Louisiana Supreme Court
• Parties: STATE v. CLEARY

92 So. 892

152 La. 265

STATE v. CLEARY

No. 25318

Supreme Court of Louisiana

June 23, 1922

Appeal from Twelfth Judicial District Court, of Parish of Vernon John H. Boone, Judge.

R. C Cleary was convicted of selling intoxicating liquors for beverage purposes, and he appeals.

Affirmed.

C. E Hardin, of Leesville, for appellant.

A. V. Coco, Atty. Gen., and John B. Hill, Dist. Atty., of Many (T. S. Walmsley, of New Orleans, of counsel), for the State.

OPINION

BAKER, J.

Defendant was indicted for selling intoxicating liquors for beverage purposes, in violation of Act 39 of 1921 (Ex. Sess.) p. 42. The indictment, without specifying the kind of intoxicating liquor, charged merely, that the defendant "did unlawfully sell intoxicating liquors for beverage purposes, contrary to the form of the statute," etc.

Defendant filed a motion to quash the indictment, pleading that Act 39 of 1921 was unconstitutional, and particularly that section 8 of the statute was violative of section 18 of article 3 of the Constitution, in so far as the statute referred to "federal legislation" for a definition of intoxicating liquors. The motion to quash was overruled, and a bill of exceptions was reserved to the ruling. After conviction and before sentence the plea of unconstitutionality of the statute was repeated in a motion for a new trial, which motion was also overruled, and a bill of exceptions was again reserved to the ruling.

Section 18 of article 3 of the Constitution provides:

"The Legislature shall never adopt any system or code of laws by general reference to such system or code of laws; but in all cases shall recite at length the several provisions of the laws it may enact."

Section 8 of Act 39 of 1921 (Ex. Sess.) provides:

"That the word 'liquor' or the phrase 'intoxicating liquor' wherever used in this act shall be construed to include alcohol, whisky, brandy, rum, gin, beer, ale, porter, wine, and any spirituous, vinous, malt or fermented liquor or liquids by whatever name called, as defined by federal legislation, and all alcoholic liquids, either medicated, proprietary or patented, which are fit for use as a beverage or for intoxicating beverage purposes, all as defined by federal legislation."

In State v. Coco (No. 25226) 152 La. 241, 92 So. 883, and again in State v. Anding (No. 25274) 152 La. 259, 92 So. 889, we held that the statute was valid in so far as it forbade the manufacture, sale, etc., for beverage purposes, of any of the intoxicating liquors specified in section 8; that is, alcohol, whisky, brandy rum, gin, etc. In other words, we held that the expression, "as defined by federal legislation," did not qualify or refer to those intoxicating liquors that were specified or described by name, alcohol, whisky, etc. We refrained from deciding whether the statute could validly...