State v. Gray
| Decision Date | 14 September 1917 |
| Docket Number | 13878. |
| Citation | 167 P. 951,98 Wash. 279 |
| Court | Washington Supreme Court |
| Parties | STATE v. GRAY. |
Department 1. Appeal from Superior Court, Skagit County; Augustus Brawley, Judge.
Charles Gray was convicted of having had in possession intoxicants in excess of the quantity allowed by law, and he appeals. Affirmed.
John F. Dore and Robert Welch, both of Seattle and Beagle & Driftmier, of Mt. Vernon, for appellant.
A. R Hilen and R. V. Welts, both of Mt. Vernon, for the State.
Defendant a registered druggist and pharmacist, whose place of business was in Seattle, King county, was charged under Rem. Code, § 6262-22, with having in his possession at Anacortes, Skagit county, intoxicating liquor in excess of the quantity allowed by law. The charging part of the information was as follows:
'That at Anacortes, in said Skagit county, Washington, on or about the 14th day of May, 1916, said defendant then and there being did willfully and unlawfully have in his possession more than one-half gallon or two quarts of intoxicating liquor other than beer, to wit, whisky, the exact amount of said whisky being to plaintiff unknown; that said defendant, Charles Gray, at said time was a registered pharmacist and druggist, with his place of business at Seattle, King county, Wash said city of Seattle, King county Wash., being 100 miles distant from said Anacortes, Skagit county, Wash., by the ordinary route of travel and transportation, and said intoxicating liquor was not at said time kept and possessed by said defendant for the purpose of being used in connection with the drug business of the said defendant at Seattle, King county, Wash., and said in oxicating liquor was not at said time and place kept and possessed by said defendant for the purpose of sale for medicinal purposes upon the prescription of licensed physicians nor for sacramental purposes upon the orders of clergymen, nor to sick persons in cases of extreme illness where delay might be dangerous, nor did the same consist of alcohol to be used for mechanical or chemical purposes, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Washington.'
Defendant demurred to the information on the ground that it was insufficient to charge a crime or misdemeanor, and contained facts which were a complete defense to the crime sought to be charged. The demurrer was overruled. He was tried, and by a jury found guilty. Motions for a directed verdict, for new trial, and in arrest of judgment were overruled. Defendant was adjudged guilty, and sentenced to pay a fine of $200 and serve 30 days in the county jail. He appeals.
Appellant contends: (1) That the information charged no crime; (2) that the instructions were erroneous; and (3) that the state did not prove the corpus delicti. We shall consider these in the order stated.
1. It is insisted that the information charged no crime because of the allegation that appellant was a registered druggist and pharmacist, and it is urged that druggists and pharmacists have the right to possess intoxicating liquor in unlimited quantities. Baldly stated, the argument is that, a registered druggist or pharmacist cannot be guilty of the unlawful possession of intoxicating liquor, though it be admitted his possession is not for the purpose of disposition in any of the ways permitted to druggists and pharmacists, and that even in such a case he can only be charged for unlawful sale or disposition of for failure to keep a record of sales under the provision of Rem. Code, § 6262-7. It is further argued that the information was insufficient, in that it did not charge any intent to sell or dispose of the liquor in any manner whatsoever. These positions are untenable. A druggist or pharmacist as such can only lawfully possess intoxicating liquor in quantities in excess of those permitted to others, for the lawful purpose of disposition permitted to druggists and pharmacists in connection with their business as such. State v. Martin, 92 Wash. 366, 159 P. 88. Appellant admits that this information negatives a possession for any and all the lawful purposes for which a druggist or pharmacist may dispose of intoxicating liquors. He says:
'It is true that the information sets forth that he did not intend to dispose of the intoxicating liquor in any of the ways permitted druggists to dispose of it by law.'
This admission presents a complete refutation of appellant's criticism of the information. Rem. Code, § 6262-7, designates all the purposes for which druggists and pharmacists may sell or dispose of intoxicating liquors, and prescribes the manner in which such sales may be made and the record to be kept. A reading of this section makes it clear that the immunity is granted, not to druggists and pharmacists as favored individuals, but to the business which they conduct as a necessary and lawful business. Rem. Code, § 6262-17, prescribes the manner in which druggists and pharmacists as such may secure intoxicating liquor in any quantities desired, but 'for use for purposes permitted by this law only.' Obviously his section must be construed in connection with section 6262-7. So construed, the necessary implication arises that intoxicating liquors can lawfully be procured, hence lawfully possessed, by druggists and pharmacists, in excess of the quantities in which they are procurable by others, only for the purpose of sale or disposition as prescribed in section 6262-7. It follows that when such liquors are not possessed by druggists or pharmacists for disposition in some of the ways permitted to a druggist or pharmacist in connection with his business as such, he can no longer claim for his possession the immunity of a druggist or pharmacist accorded by the proviso of Rem. Code, § 6262-22. Such possession is not that of a druggist or pharmacist within any sane meaning of the law. His possession then becomes prima facie evidence that liquors held in excess of the quantities permitted to others are held and kept for the purpose of unlawful sale or disposition. Such is the clear import of Rem. Code, § 6262-23, when construed in connection with the other two sections touching the sale and procurement of intoxicating liquors by druggists and pharmacists. Since the information admittedly negatives appellant's possession for any and all pharmaceutic uses, it sufficiently charges an unlawful possession. The first section of the prohibitory law, Rem. Code, § 6262-1, imposes upon the courts a liberal rule of construction as to the entire law. It says:
'This entire act shall be deemed an exercise of the police power of the state, for the protection of the economic welfare, health, peace and morals of the people of the state, and all of its provisions shall be liberally construed for the accomplishment of that purpose.'
With this plain mandate before it no court will single out the words 'registered pharmacists' as found in the proviso of section 6262-22, and give to them a literal meaning hostile to the whole spirit and purpose of the law, at variance with every other provision touching druggists and pharmacists, and which would emasculate the whole act as an operative measure, by making this proviso a convenient cloak for the 'bootlegger' masquerading as an ambulant pharmacist.
2. The court faultlessly instructed the jury as to the presumption of innocence. He then instructed that 'the defendant in this case is charged with the crime of possessing intoxicating liquors unlawfully,' quoted the information, and admonished the jury that the information is a mere accusation, and is no evidence of defendant's guilt. Then follows the usual instruction as to the burden of proof and reasonable doubt, and an instruction as follows, quoting Rem. Code, § 6262-22:
No exception was taken to any of the foregoing instructions.
The court then gave the following instruction, quoting a part of Rem. Code, § 6262-17:
To continue reading
Request your trial
-
State v. Hurlbert
... ... determined by the jury ... The ... evidential presumption under the statute is expressly made ... sufficient in itself prima facie to overcome the presumption ... of innocence, else it has no meaning at all. State v ... Gray, 98 Wash. 279, 167 P. 951; State v ... Bachtold, 106 Wash. 550, 180 P. 896; State v ... Conner, 107 Wash. 571, 182 P. 602; State v. Duncan, ... supra ... In this ... case the jury was properly instructed in the language of the ... statute as to ... ...
-
State v. Anderson
... ... in mind that they may be considered for that purpose, ... together with other facts and circumstances tending to prove ... the corpus delicti. State v. Coates, 22 Wash. 601, ... 61 P. 726; State v. Scott, 86 Wash. 296, 150 P. 423, ... L.R.A. 1916B, 844; State v. Gray, 98 Wash. 279, 167 ... P. 951; State v. Marcy, 189 Wash. 620, 66 P.2d 846; ... State v. Stuhr, 1 Wash.2d 521, 96 P.2d 479. See, ... also, State v. Anderson, 132 Wash. 130, 231 P. 456 ... To ... begin with, a thorough search of the Pend d'Oreille river ... ...
-
State v. Thomas, 27565.
...the corpus delicti. State v. Marselle, 43 Wash. 273, 86 P. 586; State v. Scott, 86 Wash. 296, 150 P. 423, L.R.A.1916B, 844; State v. Gray, 98 Wash. 279, 167 P. 951; v. Spillman, 110 Wash. 662, 188 P. 915; State v. Wynn, 125 Wash. 398, 216 P. 872; State v. Bestolas, 155 Wash. 212, 283 P. 687......
-
Vernarelli v. Sweikert
... ... 700] testified, ... and it was their privilege to believe or disbelieve the ... testimony offered in defense to the charge.' State v ... Conner, 107 Wash. 571, 182 P. 602; State v ... Gray, 98 Wash. 279, 167 P. 951 ... This ... fact having been ... ...