State v. Holt

Decision Date17 May 1948
Docket Number8753.
Citation194 P.2d 651,121 Mont. 459
PartiesSTATE v. HOLT et al.
CourtMontana Supreme Court

Rehearing Denied June 10, 1948.

Appeal from District Court, Fourth District, Lake County; C. E Comer, Judge.

Frank Holt and Elija L. Hall were convicted of selling or supplying liquor to a minor, and they appeal.

Judgments reversed, and actions ordered dismissed.

Stanley M. Doyle, of Polson, for appellants.

John D French, County Atty., of Polson, R. V. Bottomly, Atty.Gen and Clarence Hanley, Alfred F. Dougherty, and M. Baxter Larson, Asst.Attys.Gen., for respondent.

GIBSON Justice.

Appellants are charged with 'the crime of selling or supplying liquor to a minor.' Only one crime is charged, but by separate informations filed on different dates. The charge against Holt is that the crime was committed on the 22nd day of June, 1946, at the county of Lake in that Holt 'did * * * supply or sell intoxicating liquor, to-wit, one pint of whiskey, to one James White, a minor; that the said liquor was delivered to said James White in the tavern at Ravalli, Montana, operated by the defendant Frank Holt by his bartender Elija Hall.'

The information against the appellant Hall charges the same offense in the same language, except that it is alleged that 'the said liquor was delivered to the said James White by the defendant in the tavern at Ravalli, Montana, operated by one Frank Holt.' Each appellant pleaded not guilty to the charge and by consent, the two cases were consolidated for trial. The trial resulted in verdicts of guilty against both defendants, leaving the punishment to be fixed by the court. The judgment and sentence of the court was 'that each defendant pay a fine of $400 in the manner provided by law and that in addition thereto each be imprisoned in the county jail of said Lake county for a period of six months.'

A motion in arrest of judgment was made and denied. Motion for a new trial was made and denied, and appeal of the defendants is from the judgments of conviction entered against them.

The evidence at the trial was conflicting upon the charge against the bartender Hall. There was no evidence that the appellant Holt personally sold the liquor to White, or that he was present in the place when and where it is alleged to have been sold by Hall, or that Holt knew of such sale. The evidence is undisputed that when Hall was employed by Holt, he was directed and warned by his employer not to sell any intoxicating liquor to any minor or Indian. The tavern in which the sale is alleged to have been made was conducted by the appellant Holt and his wife and operated by them in connection with a lunch room, grocery store and gasoline station.

The appellants specify error in each of the cases, in refusing to grant their motions in arrest of judgment, in refusing to grant a new trial, in giving instructions 7A and 9 1/2, and as to appellant Holt because of fatal variance between the crime charged and the proof offered; and in pronouncing sentence on Holt because there was no evidence supporting the accusation against him.

The state says that as the record shows no objections were made by the appellants to the giving of the instructions, any error therein is not available to appellants because of the provisions of section 11969, Revised Codes of Montana 1935, that 'no cause shall be reversed by the supreme court for any error in instructions which was not specifically pointed out and excepted to at the settlement of the instructions herein specified, and such error and exception incorporated in and settled in the bill of exceptions.' This contention is sustained. No objections were made to the instructions and therefore any error therein is not available to the appellants on this appeal.

But there is structural deficiency and defeat in the very foundation of the case that makes it impossible, under any construction of law, to sustain the convictions that are here before us for review. First, it appears that the appellants were sentenced for violation of a statute that had been repealed long prior to the time of the offense charged against them. Secondly, even had this repealed statute been in force and effect, the convictions could not be sustained, because upon the face of the record there appears the violation of a fundamental of criminal law and procedure, that a person may not be prosecuted for one crime and punished for another. Upon the assumption by the court that the repealed statute was in force, that is what was done in the cases at bar. And, thirdly, the record, and the state's admissions as well, disclose that the offense which the evidence tended to prove was not the offense charged against appellants.

To make manifest the situation it is necessary to review briefly the history of the legislation governing the traffic in intoxicating liquors, and to specifically consider the legislation prohibiting the sale of such liquors to persons under the age of twenty-one years.

From the time of the adoption of the Eighteenth Amendment to the Constitution of the United States, January 29, 1919, until its repeal by the Twenty-first Amendment, which became effective December 5, 1933, any and all traffic in intoxicating liquor for beverage purposes was unlawful in all the states of the Union, and the states and federal government had concurrent jurisdiction to enforce the prohibitions contained in the Eighteenth Amendment. Montana co-operated in the enforcement and had an elaborate and complete state prohibition Act, and both the state and federal government prosecuted violations of their respective statutes, the state prohibition law of Montana, and the National Prohibition Act, known as the Volstead Act, 27 U.S.C.A. § 1 et seq. But by an Act initiated by the people in 1926, Montana by vote of the people in November of that year, repealed the state prohibition laws, comprised in 76 sections of Codes and session laws. Laws 1927, p. 603. This repeal, however, left as the only vestige of state prohibition, Chapter 39 of the Session Laws of 1923, which prohibited the sale of liquor to a minor and fixed the penalty at fine and imprisonment. This Act was repealed by Chapter 122 of the Laws of 1927, which, in section 1 of the Chapter, prohibited the sale of intoxicating liquors to a 'minor' and fixed the penalty for violation. This section 1 of Chapter 122 of the Laws of 1927, is the statute that now appears as section 11048.1 of the Revised Codes of 1935. But, as stated, it was repealed before authorization of the codification, and before the Codes of 1935 were adopted, and its appearance therein as section 11048.1 is unauthorized. It appears in the Codes because the legislature in enacting the State Liquor Control Act in 1933 did not expressly repeal section 1 of Chapter 122, Laws of 1927. Absorbed in consideration of a law to cover the entire subject of the traffic in intoxicating liquor to take effect when the anticipated early repeal of the Eighteenth Amendment to the United States Constitution should usher in what in some quarters was viewed as the 'day of jubilee,' and knowing that where a comprehensive plan of liquor control was framed into law, such enactment in itself, and without more, operates as a repeal of prior laws in conflict therewith, no express repeal was declared. This repeal of section 1, Chapter 122, Laws of 1927, was by necessary and compelling implication instead of express declaration. The repeal was therefore overlooked by the Code commissioners and this section was given a Code section number and carried into the Codes as section 11048.1 as hereinabove observed.

This intrusion of the repealed statute into the Code has resulted in much confusion to the legislature, to law enforcement officials, and to the courts.

That is the statute under which appellants were sentenced. But it was repealed by the enactment of the State Liquor Control Act of Montana, Rev.Codes 1935, § 2815.60 et seq., which became law on December 5, 1933. There is no escape from this holding, as careful consideration of the matter demonstrates.

While the states were considering the Twenty-first Amendment to the Constitution of the United States, submitted to them by the Congress, for the repeal of the prohibition Amendment, the Montana legislature, the same year, 1933, enacted Chapter 105, Laws of the Twenty-third Legislative Assembly. This Act provides for a Montana Liquor Control Board, the issuance by the board of permits to purchase intoxicating liquor, and declares in section 99 of the Act, that its purpose and intent 'are to prohibit transactions in liquor which take place wholly within the state of Montana except under state control as specifically provided by this Act.' (Emphasis supplied.) It provides that 'this act shall go into full force and effect at such time as the manufacture, importation and sale of distilled or vinous liquors, or either or any of them for beverage purposes, shall become lawful under the constitution and laws of the United States.'

This Act went into effect on December 5, 1933, when the Twenty-First Amendment became effective, and is known and cited as 'State Liquor Control Act of Montana.'

The Act provided that all sales of liquor for beverage purposes should be made through state liquor stores established in each county seat, and at such other places as the state liquor control board might deem proper. It prohibited all sales of liquor except through such liquor stores and under control of the state liquor control board, created by the Act for its administration. The Act contained a section 2815.115, Revised Codes 1935, reading as follows: 'Except in the case of liquor given to a person under the age of twenty-one years by his parent or guardian for beverage or medicinal...

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1 cases
  • State v. Morrissey
    • United States
    • Montana Supreme Court
    • 6 Diciembre 1948
    ...the good behavior of the convicted appellant. This was prior to the decision handed down by this court in the case of State v. Holt, Mont., 194 P.2d 651, 660. Following that decision the appeal herein was taken on 26, 1948. This case is ruled by the decision and opinion in the Holt case in ......

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