State v. Irving Lucia

• Decision Date: 04 November 1931
• Citation: 157 A. 61,104 Vt. 53
• Parties: STATE v. IRVING LUCIA
• Court: Vermont Supreme Court

157 A. 61

104 Vt. 53

STATE v. IRVING LUCIA

Supreme Court of Vermont

November 4, 1931

October Term, 1931.

Criminal Law---Intoxicating Liquors---Remarks of Counsel---Cross-examination---Requisites To Establish Error in Exclusion of Evidence---Necessity of Offer---Character of Offer Necessary---Offer So Indefinite as To Make Exclusion Discretionary---Weight of Evidence---Jury Question---Effect of Eighteenth Amendment on Police Power of State---Power of State To Deny Right To Possess Intoxicating Liquor---Rights of State To Enact Liquor Enforcement Act---Acts 1921, No. 204, 4---Effect of Legality of Possession under Federal Law as Defense to State Law Making Possession Illegal---Argument of Counsel---Harmless Error---General Exception.

1. In prosecution for furnishing and possession of intoxicating liquor, use by State's attorney of word "liquor" rather than "liquid," in referring to State's chemist as one "who analyzed the liquor," held not prejudicial under circumstances of case.

2. In such prosecution, exclusion of question asked during cross-examination of officers who conducted search and were witnesses on behalf of State, whether respondent or companion showed signs of having been drinking intoxicating liquor at time of such search, held without error, issue being whether liquor contained more than statutory alcoholic content, not whether it would produce intoxication.

3. When evidence is excluded, excepting party to establish error must show that such evidence was admissible in then present aspect of case.

4. Offer must be specific enough to make relevancy of offered evidence apparent to trial court.

5. To make exclusion error, it must appear affirmatively that at time of ruling record of trial court disclosed such facts as would make evidence admissible or that in connection with offer there was also offer to show such facts as would make it admissible.

6. In prosecution for furnishing and possession of intoxicating liquor, offer to show that respondent and companion had drunk a "certain quantity" of liquid in question and were not affected thereby or under influence of such liquid, held so indefinite as to make exclusion within discretion of court.

7. In such prosecution, extent to which weight to be given report of chemical analysis was affected by delay of nine days after seizure in making analysis, and by other circumstances, held for jury.

8. In such prosecution, whether liquid contained more than permitted statutory alcoholic content, held for jury under evidence.

9. Adoption of Eighteenth Amendment to federal Constitution did not impair right of state by exercise of its police power to protect its citizens in its own way from evil effects of intoxicating liquor, except that since such adoption it may not permit sale, use, or possession of intoxicating liquor of a kind, or in a manner, prohibited by laws of United States.

10. Right to possess intoxicating liquor for personal purposes is not one of those fundamental privileges of citizen of United States which no state may abridge.

11. State liquor enforcement act need not conform to federal act or be identical, only requirement being that it shall not defeat or thwart prohibition contained in Eighteenth Amendment to federal Constitution, but shall operate to enforce it by appropriate means.

12. State liquor enforcement act is not inappropriate merely because its provisions appear to be more drastic than those of federal act, whether in conduct forbidden or in penalties imposed.

13. It is only when there is actual repugnancy or irreconcilable conflict between state liquor enforcement act and federal act so that two cannot stand together, that federal act is held supreme.

14. State may, in exercise of police power, enact law that makes it unlawful to possess intoxicating liquor without regard to time, place, or circumstance.

15. State liquor enforcement act which makes possession of intoxicating liquor except as provided therein illegal, even though in one's dwelling-house, is not inconsistent with Eighteenth Amendment to federal Constitution, or federal law nor arbitrary, nor unreasonable, nor without proper relation to legitimate legislative purpose.

16. In prosecution for possession of intoxicating liquor for beverage purposes, under Acts 1921, No. 204, 4, it is no defense to say that such possession was legal under federal law.

17. Exceptions to remarks of State's attorney, where no transcript thereof was furnished Supreme Court, held unavailing.

18. Exceptions to remarks of State's attorney are unavailing in absence of affirmative showing of prejudice.

19. In prosecution for furnishing and possession of intoxicating liquor, exception to statement of State's attorney in argument that purpose of case was "to clean out the places where the stuff can be obtained," where context did not appear, held unavailing, since Supreme Court could not say whether argument was improper, or, if so, whether harmful.

20. In such prosecution, where court in instructing jury concerning alcoholic content of liquid said they might take into consideration possibility whether men would sit down and drink six glasses of something without alcoholic content, if error, held not shown to have been prejudicial.

21. In such prosecution, instruction that if liquid was spiritous or malt liquor, wine, beer, or ale, under those terms, it was presumed to be intoxicating, but otherwise it must contain more than legal alcoholic content, although in part inapplicable to case, held at most to be harmless error.

22. In such prosecution, exception "to those parts of the court's charge relating to possession, which would also refer to furnishing," held too general to require attention.

INFORMATION for furnishing and possession of intoxicating liquor, in violation of Acts of 1921, No. 204, /n 4. Plea not guilty. Trial by jury in Barre city court, H. William Scott, City Judge. Verdict of guilty and judgment and sentence thereon. The respondent excepted. The opinion states the case.

Judgment that there is no error, and that the respondent take nothing by his exceptions. Let execution be done.

Marcell Conway for the respondent.

C. O. Granai, State's attorney, for the State.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

MOULTON

The defendant is charged with the furnishing and possession of intoxicating liquor, in violation of section 4, No. 204, Acts of 1921. After a trial by jury in the Barre city court, the verdict was guilty, and the case is before us on his exceptions.

When the police officers entered the dwelling house of the respondent, under the authority of a search warrant, they discovered the respondent and Newton Dennis seated at a table in the kitchen. On the table was a glass pitcher with a little so-called "home brew" in it, and two empty glasses which had the appearance of having shortly before contained the same concoction. In a cupboard in respondent's bedroom they found 27 bottles of "home brew," with metal caps, which they seized and removed to police headquarters.

The defense was that the "home brew" was not intoxicating liquor, under the law, because it contained less than one-half of one per cent. of alcohol by volume at sixty degrees Fahrenheit, at the time of seizure; and that the respondent's possession of it, even though intoxicating, was lawful because it was in his bona fide dwelling house.

The report of the chemical analysis of the contents of one of the bottles, made by the chemist of the State Department of Hygiene, nine days after the seizure, by which it appeared that the alcoholic content at the temperature above mentioned was 6.6 per cent. by volume, was offered in evidence by the State. In so doing the State's attorney referred to the chemist as one "who analyzed the liquor." To this statement the respondent excepted, the objection being the use of the word "liquor" instead of "liquid," and now contends that it had a tendency to influence the jury with respect to the alcoholic character of the fluid. It is doubtful whether the exception, as taken, was sufficiently explicit to apprize the trial court of this claim, but, at any rate, no prejudice appears. Previously during the trial the word "liquor" had been used in describing the subject of the seizure without objection being made. It is true that according to Mr. Webster, one meaning of "liquor" is "specifically alcoholic or spiritous fluid," but the same authority also gives the word another meaning as "any liquid substance." Without considering the lexicological exactitude of the expression, it is quite impossible to suppose that the jury could have been misled or influenced by it, and the exception is not sustained. The report of the analysis was received in evidence without further objection or exception.

Several exceptions were taken by respondent to the exclusion of certain questions asked during the cross-examination of two of the officers who conducted the search and were witnesses on behalf of the State. All these exceptions are substantially the same and may be considered together. Referring to the time that the officers entered the house, they were asked whether the respondent, or Dennis, or either of them showed signs of having been drinking intoxicating liquor. The argument is advanced that, since chemical analysis is not the exclusive method of ascertaining the intoxicating character of liquor and that this fact may be established by testimony of a general nature (State v. Watson, 99 Vt. 473, 477, 134 A. 585), it was competent to show that the drinking of this particular beverage did not have an intoxicating effect. But the issue here was not whether the liquid would in point of fact produce intoxication,...