State v. Gilman

Decision Date09 November 1889
Citation10 S.E. 283,33 W.Va. 146
PartiesState v. Gilman.
CourtWest Virginia Supreme Court

Intoxicating Liquors—Unconstitutional Act.

That portion of section 1, c. 32, Code 1887, which provides that no person, without a state license therefor, shall "keep in his possession, for another, spirituous liquors, " etc., is unconstitutional and void.

(Syllabus by the Court.)

Error to circuit court, Barbour county. Dayton & Dayton, for plaintiff in error. Atty. Gen. Caldwell, for the State.

Snyder, P. At the March term, 1889, of the circuit court of Barbour county, the grand jury found an indictment in which it is charged that J. C. Gilman, in said county, did unlawfully, and without a license therefor, " sell, offer, and expose for sale, and solicit and receive orders for, and keep In his possession for another, spirituous liquors, wine, porter, ale, beer, and drink of a like nature, " etc. The defendant moved the court to quash the indictment; which motion being overruled, he pleaded not guilty, and thereupon the case was tried by a jury. There was a verdict of guilty, on which the court entered judgment, fining the defendant $20. A motion to set aside the verdict was made, and overruled by the court, and an exception taken by the defendant, in which all the facts are certified. These facts are as follows: John Thompson, witness for the state, testified that he did not buy whisky of defendant within one year next preceding the finding of this indictment, but that, on the 15th day of October, 1888, he got whisky of defendant, which defendant was keeping in his possession for another person, James E. Heatherly, who was at the time a candidate for sheriff of Barbour county; andthat said whisky was kept by defendant, in his possession, at his hotel, in the town of Philippi, in Barbour county, to be distributed free by defendant to such persons as said Heatherly should give order for or send there for it; and witness for the state had, at the time the liquor mentioned in the indictment was delivered to him by said defendant, within one year next preceding the finding of the indictment, an order from said Heatherly on said defendant for a quantity of said intoxicating liquor less than five gallons; and that upon said order, within said year, said defendant did deliver to said witness a quantity of said intoxicating liquor of less than five gallons. Defendant admits that he had no state license to sell, solicit, or receive orders for, or keep in his possession for another, spirituous liquors, wine, porter, ale, beer, and drink of a like nature." This indictment is framed under the provisions of section 1, c. 32, Code 1887, and is in the precise language of the statute. It is in legal form, and, as no extrinsic facts were shown to invalidate the finding of it, I think the motion to quash was properly overruled.

The said statute was amended by chapter 29, Acts of 1887, and then, for the first time, the words, "or solicit or receive orders for, or keep in his possession for another, " were made a part of the statute. From the facts proved, it is apparent the conviction in this case must be sustained, if it is done at all, under that provision which I have italicized, "keep in his possession for another." It will be observed that this provision has no reference to the intent or purpose for which the liquor is kept in possession, but it denounces as a crime the simple fact that the liquor is kept in possession for another, however innocent the act or commendable the purpose. Has the legislature of this state the constitutional power to make such an act a crime? The fourteenth amendment to the constitution of the United States declares: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;" and the same amendment makes all persons born or naturalized in the United States citizens thereof. It is conceded that the "privileges and immunities" here protected are such only as are in their nature fundamental; such as belong of right to the citizens of all free governments, and which have at all times been enjoyed by the citizens of the several states of the Union, from the time of their becoming free, independent, and sovereign. What these fundamental rights are, it is not easy to enumerate; the courts preferring not to describe and define them in a general classification, but to decide each case as it may arise. The following, however, have been held to be embraced among them: " Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject to such restraints as the government may justly prescribe for the general good of the whole." Washington, J., in Corfield v. Coryell, 4 Wash. C. C. 380; Conner v. Elliott, 18 How. 591; In re Parrott, 6 Sawy. 349, 1 Fed. Bep. 481; 6 Myer, Fed. Dec. § 1000; Landing Co. v. Slaughter House Co., Ill U. S. 746, 4 Sup. Ct. Bep. 652. These are inalienable and indefeasible rights, which no man, or set of men, by even the largest majority, can take from the citizen. They are absolute and inherent in the people, and all free governments must recognize and respect them. Therefore it is incumbent upon the courts to give to the constitutional provisions which guaranty them a liberal construction, and to hold inoperative and void all statutes which attempt to destroy or interfere with them. Cooley,...

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42 cases
  • State Ex Rel. William W. Downey v. Sims, (No. 9491)
    • United States
    • West Virginia Supreme Court
    • 18 Mayo 1943
    ...constitutions. We have here expressly recognized it. Taylor v. Taylor, 66 W. Va. 238, 66 S. E. 690, 19 Ann. Cas. 414; State v. Oilman, 33 W. Va. 146, 10 S. E. 283, 6 L. R. A. 847. In State v. Gilman, supra, it was applied in determining the constitutionality of a statute. "The Constitution ......
  • In re Application of Crane
    • United States
    • Idaho Supreme Court
    • 11 Septiembre 1915
    ...139 N.C. 599, 52 S.E. 63; State v. Williams, 146 N.C. 618, 61 S.E. 61, 14 Ann. Cas. 562, 17 L. R. A., N. S., 299; State v. Gilman, 33 W.Va. 146, 10 S.E. 283, 6 L. A. 847; Cooley on Constitutional Lim. 549; Black on Intoxicating Liquors, p. 50, sec. 38.) There is a limit to the police power ......
  • Marasso v. Van Pelt
    • United States
    • Florida Supreme Court
    • 19 Abril 1919
    ...when not held under circumstances which constitute a nuisance or a penal offense, are entitled to protection as other property.' In State v. Gilman, supra, the court held that a statute provided that no person without a state license therefor should 'keep in his possession, for another, spi......
  • State v. Moore
    • United States
    • Idaho Supreme Court
    • 30 Diciembre 1922
    ... ... liquor in the home for personal use and with no intent to ... sell the liquor is invalid. ( Rhode Island v. Palmer, ... 253 U.S. 350, 40 S.Ct. 486, 64 L.Ed. 946; Bishop, Stat ... Crimes, sec. 1054; People v. Comptroller, 152 N.Y ... 399, 36 N.E. 852; State v. Gilman, 33 W.Va. 146, 10 ... S.E. 283, 6 L. R. A. 847; Commonwealth v. Campbell, ... 133 Ky. 50, 117 S.W. 383, 24 L. R. A., N. S., 172; State ... ex rel. Francis v. Moran, 76 Fla. 304, 2 A. L. R. 1068, ... 79 So. 753; Joyce on Intoxicating Liquors, sec. 79; ... Gherna v. State, 16 Ariz. 344, ... ...
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