State v. Good.
| Citation | 56 W.Va. 215 |
| Parties | State v. Good. |
| Decision Date | 15 November 1904 |
| Court | Supreme Court of West Virginia |
Proof of an unlawful sale of a mixture, preparation or liquid "which will produce intoxication" will sustain a conviction upon an indictment charging the unlawful sale of "spirituous liquors, wine, porter, ale, beer and drinks of like nature" without a State license therefor. For the purposes of chapter 32 of the Code of 1899, such mixture, preparation or liquid is, in law, spirituous liquor, whether it be such, in fact, or not. (pp. 217, 218).
When such mixture is sold in labeled bottles, as put up by the manufacturer, and has a commercial name or designation, the evidence of persons who have purchased it from the defendant and drunk it, whether at the same time or on different days and occasions, as to whether it is intoxicating, is admissible both for the State and the defendant. (p. 218).
Error to Circuit Court, Hancock County. Elmer S. Good was convicted of an unlawful sale of intoxicating liquors, and brings error.
Reversed.
John E. Donehoo, for plaintiff in error. The Attorney General, for the State. poffenbarger, president:
Reversal of a judgment of conviction of the unlawful retailing of spirituous liquors is asked here, because the indictment charges the unlawful selling of spirituous liquors, wine, porter, ale, beer and drinks of a like nature, while the proof shows a sale of an intoxicating liquid called "rikk," it being urged that as the article sold was not in fact one of the prohibited liquors, mentioned in the indictment, the charge is unsustained by proof. In addition to the liquids named in the indictment, the law prohibits the sale of "all mixtures, prepartions or liquids which will produce intoxication, whether they be patented or not," and declares that they "shall be deemed spirituous liquors within the meaning" of the statute; but the contention is that the indictment, to sustain a conviction of a sale of such mixture, preparation or liquid, must contain a count specifically covering such mixture, prepartion or liquid.
No authority directly confirming this view has been produced. The argument is one of deduction only. State v. Oliver, 26 W. Va. 422, is referred to, and. an attempt made to show that, if the indictment had charged the selling of an intoxicating mixture, preparation or liquid, proof of sale of crab-cider would have made out an offense. But that clause is referred to in the opinions, and the case, made by the evidence, tested by it, just as if an offense under it had been specifically charged in the indictment. Judge Wood said, "Not being a distilled liquor, neither is it a mixture known as 'bitters' or otherwise, which will produce intoxication and therefore declared for the purposes of the act 'spirituous liquor.'" J edge Snyder, in his dissenting opinion, said, "The very section under which the indictment here was found uses the terms 'intoxicating drinks' and mixtures 'which will produce intoxication' and expressly prohibits their sale without a license." He opposed a reversal of the judgment, and it was reversed by the other judges, because, in their opinion, the statute did not, by any terms used, prohibit its sale. If that decision, or the views expressed by the Court, has any bearing upon the question, its effect is exactly the reverse of what is claimed in respect to it.
The legislative declaration that intoxicating mixtures "shall be deemed spirituous liquors" is equivalent to a declaration that they are spirituous liquors for the purposes of the act. An unli- censed sale of spirituous liquors is made an offense, and, as an intoxicating mixture, preparation or liquid is, by force of the statute, such a liquor, an unlicensed sale thereof constitues the offense. This is admitted, but it is said this statutory classification does not make a mixture which contains no alcohol, spirituous in fact. It cannot change the nature of the preparation, and it was not the purpose of the statute to prescribe a mode of pleading, but only to create and define an offense. All of this may be true, but the courts have uniformly held that, under such statutes, a conviction may be had upon an indictment alleging the acts constituting the offense, without reciting the means by which it was committed. One court has gone so far as to say that "An indictment for larceny by embezzlement must allege that the defendant "feloniously did steal, take and carry away the property, which is the subject of the indictment." Com. v. Pratt, 132 Mass. 246. Commencing with Dowdy v. Com., 9 Grat. 727, in 1852, the Virginia court of last resort has asserted and adhered to principles of criminal pleading which render it impossible to sustain the position taken for plaintiff in error, and they have been followed by this Court. For obtaining money or other property which may be the subject of larceny, by false pretense, the indictment may be in the common law form, or it may charge the specific acts which the statute declares shall be deemed larceny. Leftwich v. Com., 20 Grat. 716: Fay v. Com., 28 Grat, 912. "Upon an indictment for simple larceny, the state may convict by proving either that the subject of the larceny was received with knowledge that it was stolen, or that it was obtained by a false token or false pretense." State v. Ealida, ...
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