State v. Gill

• Decision Date: 12 June 1903
• Docket Number: 13,412 - (22)
• Parties: STATE v. H. A. GILL
• Court: Minnesota Supreme Court

95 N.W. 449

89 Minn. 502

STATE v. H. A. GILL

Nos. 13,412 - (22)

Supreme Court of Minnesota

June 12, 1903

Appeal by defendant from an order of the municipal court of Minneapolis, Holt, J., denying a motion for a new trial. Affirmed.

SYLLABUS

Sale of Intoxicating Liquor.

The defendant was convicted in the municipal court of Minneapolis of the offense of selling one quart of malt liquor without a license, contrary to the city ordinance. Upon his appeal from an order denying his motion for a new trial, it is held:

1. It was not necessary to allege in the complaint that the malt liquor was intoxicating, or to plead the ordinance, or to conclude the complaint "contrary to the statute."

2. The city council of Minneapolis have the power to prohibit and punish the sale of malt liquor without a license.

3. The court did not err in excluding evidence tending to show that the defendant believed the liquor sold by him was not intoxicating.

4. The conviction is sustained by the evidence.

Erwin & Mead, for appellant.

Frank Healy and A. C. Finney, for the State.

OPINION

START, C.J.

The defendant was convicted in the municipal court of the city of Minneapolis of the offense of selling malt liquors without a license, and appealed from an order denying his motion for a new trial.

1. The defendant's first contention is that the complaint fails to charge a public offense. The ordinance under which the defendant was convicted prohibited the selling or dealing in spirituous, vinous, fermented, or malt liquors within the limits of the city of Minneapolis by any person without having first obtained a license therefor in the manner provided by the ordinance. The complaint upon which the defendant was convicted charges the sale to a party (naming him) of one quart of malt liquor without having first obtained a license so to do from the city council of the city of Minneapolis, contrary to the provisions of an ordinance passed by its council, and against the peace and dignity of the state of Minnesota. The first specific objection made to this complaint is that it does not allege that the liquor sold was intoxicating. The ordinance defines the offense, and sets forth all its essential elements -- that is, the sale of malt liquors without a license -- and the complaint charges the offense in the words of the ordinance. It is therefore sufficient. City of Mankato v. Arnold, 36 Minn. 62, 30 N.W. 305. But the defendant claims that there are some malt liquors which are not intoxicating; hence the complaint should have alleged the sale of an intoxicating malt liquor. This is just what the complaint did do without any tautology, for the term "malt liquors" is used in the charter of the city in the ordinance in question, and in the complaint in accordance with the common and approved usage of the term, and not in any technical sense. G.S. 1894, § 255. The common and approved usage of the term "malt liquor" is "an alcoholic liquor, as beer, ale or porter, prepared by fermenting an infusion of malt." Webster's International Dictionary.

It is further claimed that the complaint does not charge a public offense, because by the charter of the city council has no power by ordinance or otherwise to prohibit the sale of malt liquor whether licensed or not. The charter provides that:

"The city council shall have full power and authority to make ordain, publish * * * all such ordinances * * * for the suppression of vice and intemperance, as it shall deem expedient, * * * and for these purposes the said city council shall have authority, by such ordinances:

First -- To license and regulate * * * all persons vending, dealing in or disposing of, spirituous, vinous, fermented or malt liquors. * * *

Second -- To restrain * * * Any person from vending or dealing in spirituous, fermented or vinous liquors, unless duly licensed by the city council." Sp. Laws 1881, p. 434, § 5 (c. 76, subc. 4).

It is insisted that because the second subdivision quoted gives the council the express power to restrain any person from selling or dealing in spirituous, fermented, or vinous liquors unless duly licensed, without specifically naming malt liquors, the council has no power to forbid the sale of such liquors without a license. The power to license and regulate all persons vending or dealing in malt liquors, as given by the first subdivision, necessarily carries with it the power to prohibit the sale thereof by any person unless licensed so to do; otherwise the...