State v. Langdon

• Decision Date: 07 November 1906
• Citation: State v. Langdon, 74 N. H. 50, 64 A. 1099 (N.H. 1906)
• Parties: STATE v. LANGDON.
• Court: New Hampshire Supreme Court

64 A. 1099

74 N.H. 50

STATE

v. LANGDON.

Supreme Court of New Hampshire. Stratford.

Nov. 7, 1906.

Transferred from Superior Court.

Horace W. Langdon was prosecuted for violation of the liquor law, and, on a demurrer to the indictment, the cause was transferred from the superior court without a ruling.Demurrer sustained.

Indictment charging the unlawful delivery of liquor contrary to the provisions of sections 15and27, c. 95, pp. 88,91,Laws 1903, as amended bychapter 49, p. 442,Laws 1905.The defendant demurred (1) because the indictment did not allege that notice in writing had been given him, as required by section 27, c. 95, p. 91,Laws 1903, as amended bysection 9, c. 49, p. 450,Laws 1905;(2) because it was not alleged that the defendant knew the person to whom the delivery of liquor was charged to be one to whom such delivery was forbidden; (3) because it was not alleged that the defendant was a licensee under chapter 95, p. 81,Laws 1903.Transferred from the September term, 1905, of the superior court by Chamberlin, J., without a ruling.

Dwight Hall, for the State.William S. Pierce, for defendant

PARSONS, C. J."No person shall sell, deliver, or give away, or cause or permit or procure to be sold, delivered, or given away, any liquor, first, to a minor, nor to a minor for any other person; second, to an intoxicated person; third, to an habitual drunkard; fourth, to any person where notice in writing has been given in accordance with the provisions of section 27 of this chapter, forbidding sale or delivery to such persons."Laws 1905, p. 450, c. 49, § 9;Laws 1903, p. 88, c. 95, § 15.The respondent demurs to an indictment in terms charging a violation of the foregoing section.The only ground of demurrer which it is necessary to consider is the failure to allege that the respondent, at the time of the offense charged, held a license to engage in the traffic in liquor.This objection is fatal, and the demurrer must be sustained.

By the general law of the state(Pub. St. 1901, c. 112), the sale of liquor to any person is prohibited.Section 8, c. 122, p. 382,Laws 1903, provides that "the procuring, furnishing, or giving away of spirituous liquors, or any shift or device to evade the provisions of chapter 112 of the Public Statutes of 1901 or amendments thereto, shall be deemed unlawful selling within the provisions of said chapter, and the punishment shall be the same as in the case of selling or keeping for sale spirituous liquors."If the respondent is not a licensee, the acts charged against him would constitute an offense, without reference to the fact whether the person to whom it was charged the liquor was delivered came within the description of sections 15and27, c. 95, pp. 88,91,Laws 1903, as amended(Laws 1905, p. 442, c. 49), or not.This section prohibits the delivery of liquor to all persons, the only exception being the "furnishing or giving away" of spirituous liquors by a person in his private dwelling.Laws 1903, p. 382, c. 122, § 8.The supplying of spirituous liquor to any person by sale or otherwise being forbidden by general law, chapter 95, p. 81,Laws 1903, provides that in a particular situation "it shall be lawful to engage in the traffic in liquor"; and in that respect the chapter is an amendment of the law.

Although such traffic is generally forbidden, those persons who have received licenses are authorized in towns which have adopted the act to sell and keep liquor for sale.The subject of the chapter is the regulation, not the prohibition, of the sale.The sale is permitted, but the act contains numerous restrictions, some of which limit the persons to whom liquor may be sold.Although the language of section 15, providing that "no person" shall sell or deliver liquor to certain persons described, is sufficiently broad to include all persons within its prohibition, it is reasonable to conclude that the enactment was not directed against those who were already forbidden to supply liquor to any one, but against those permitted to sell to some.In the act of 1903, licensees who delivered or gave away liquor in violation of section 15 were punishable under section 28 of the act, but no penalty was provided for the delivery or giving away of liquor in violation of that section by a nonlicensee.The absence of such a penalty, and the fact that at the same session the section of chapter 122, forbidding the procuring, furnishing, or giving away of liquor to any person by a nonlicensee was adopted, establish the legislative understanding in 1903 that section 15 of chapter 95 applied only to licensees.In spite of the general expression "no person," the purpose of the act, in connection with existing and concurrent legislation, establishes that, like other sections of the chapter more definite in expression or made more certain from their subject-matter, this section was intended merely as a restriction upon, or regulation of, the liquor-traffic privilege conferred by the license.Seesections 16-24.Hence the provisions of the section are restrictions upon the privilege granted under the act, and not a useless, partial prohibition of acts otherwise totally prohibited by general law.As no penalty was provided by the act, it is not probable that this prosecution would have been instituted in this form, assuming that the respondent is not a licensee, except for an amendment adopted in 1905.Section 33(page 93) of the act—"Whoever, in a city or town wherein the provisions of this act are in force, shall sell or keep for sale liquor contrary to the provisions of this act, shall be punished"—was amended in 1905(page 456, c. 49, § 18) by inserting after the word "act" the following, "or whoever, in such city or town, shall deliver, or cause to be delivered, liquor to any person to whom the sale or delivery is forbidden by sections 15and27 of this chapter," thereby imposing the same punishment for the delivery of liquor to the persons proscribed by those sections, as was previously attached to a sale of them.This amendment did not extend the prohibition of section 15.As to licensees, it changed...