State v. Levy

• Decision Date: 30 July 1925
• Citation: 103 Conn. 138,130 A. 96
• Court: Connecticut Supreme Court
• Parties: STATE v. LEVY.

130 A. 96

103 Conn. 138

STATE v. LEVY.

Supreme Court of Errors of Connecticut.

July 30, 1925

Appeal from Superior Court, Fairfield County; William M. Maltbie Judge.

Jacob Levy was convicted of transporting, by vehicle, spirituous and intoxicating liquor for the purpose of sale or exchange and he appeals. No error.

Henry Greenstein and Harry Schwartz, both of Bridgeport, for appellant.

William H. Comley, State's Atty., and E. Earle Garlick, Asst State's Atty., both of Bridgeport, for the State.

BEACH J.

The appellant was convicted of seven separate acts of transporting by vehicle spirituous and intoxicating liquor, described as beer, by motor truck, for the purpose of sale or exchange, in violation of section 8 of chapter 291, P. A. of 1921, the information being in seven counts and the accused found guilty under each count.

The state did not claim that the accused himself drove or accompanied any truck load of beer, but claimed that the accused hired several trucks and five drivers, each of whom had been convicted, and two of them twice convicted, of unlawful transportation of liquor before the accused was tried; that he rented a garage in which the several trucks were kept and loaded; installed a bottling plant therein, directed the departure of the loaded trucks, always after midnight, and the destination and disposition of the several truck loads of beer; and that the accused was liable to prosecution and punishment as if he were the principal offender, under section 6716, G. S., which reads as follows:

" Accessories. Every person who shall assist, abet, counsel, cause, hire or command another to commit any offense may be prosecuted and punished as if he were the principal offender."

The appellant's claim is that under section 8 of the act of 1921, no person can be convicted of unlawful transportation of liquor unless he is physically present either as driver or operator of the vehicle, or accompanying the vehicle. This claim is presented in various forms by reasons of appeal Nos. 1, 2, 3, 4, 5. 6, 15, 16, 17, 18, 25, and 30. These reasons of appeal relate to rulings on evidence, alleged error in the charge and in the construction of the statutes, and errors in denying a motion to dismiss the information and a motion to set aside the verdict. These reasons of appeal all turn on the construction which the appellant attempts to put on the act of 1921 and on section 6716, and are considered together in the discussion of that question.

It is contended that the act of 1921, being a penal statute, must be strictly construed, and in the sense that it cannot be enlarged by construction to cover a case not within its literal terms, that is true. Nor can its terms be enlarged by construction for the purpose of more effectually suppressing the mischief at which it is directed. On the other hand, courts do not approach the construction of a penal statute creating a new offense against the state, with the hostile purpose of crippling a legislative intent plainly expressed.

Coming to the point in controversy the appellant asks us to construe the words in the act of 1921, " and every person accompanying any such vehicle or boat in which such spirituous and intoxicating liquors are so transported, without such permit, may be prosecuted and punished as an accessory," as a definition of punishable accessories to the new offense, which excludes all other participants therein from punishment as accessories on the principle exclusio unius est exclusio alterius.

In the first place the clause in question is not mandatory. It does not say that every one accompanying is an accessory and punishable as such. Therefore it does not define accompanying persons as ipso facto accessories. It says they may be punished as such, and the context will not permit the word " may" to be construed as " shall," as claimed in argument.

It would not be a strict construction of the act, but a most unreasonable enlargement of its penal effect to interpret it as meaning that a bystander who accepted an invitation to ride in a vehicle, not knowing that intoxicating liquors were concealed therein, was thereby converted into a participant in the offense of unlawful transportation.

The word " accessory" has a recognized significance in the criminal law, which must be assigned to it in the act in question. Section 6716 defines an accessory in terms which have been quoted, and, in that respect, as will be more fully pointed out, it is declaratory of the common law. The statute has been construed as requiring the lending of intentional assistance in the planning or commission of the crime--" a positive act in aid of the commission of the offense," State v. Teahan, 50 Conn. 92, 101; " a sort of partnership in purpose and conduct," State v. Ennano, 96 Conn. 420, 425, 114 A. 386, 388. As to the common law, see 2 Swift's Digest, pp. 365, 368. And when the act of 1921 says that " every person accompanying any such vehicle * * * may be prosecuted and punished as an accessory," it plainly means that persons who accompany a vehicle engaged in the unlawful transportation of intoxicating liquor, knowing that the vehicle is so engaged, may be so punished. In that respect the act enlarges rather than limits the class of persons who may be punished as accessories. This is permissible, for, as we said in State v. Scott, 80 Conn. 317, 324, 68 A. 258, 260, " It is manifest that the nature of the assistance which will render one liable as a party to a particular offense must depend largely on the nature of that offense; " and the presence of one or more pseudo passengers in a vehicle engaged in the unlawful transportation of liquor may doubtless assist in disguising the real character of the expedition.

As to section 6716, the appellant's principal claim is that it applies only to persons who assist in the commission of common law, as distinguished from statutory offenses, or at most only to assistants in offenses which were recognized when the statute was enacted--that is to say in 1921. State v. Rand, 51 N.H. 361, 12 Am.Rep. 127, is cited, but the point decided was merely that a witness, asked whether he bought liquor from an accused charged with unlawfully selling it, could not refuse to testify on the ground that his answer might incriminate him. In so holding the court pointed out that the New Hampshire statute, very like section 6716, was passed to remedy the procedural difficulties which surrounded the prosecution of accessories in felonies at the common law, and said: " So far as the statute declares aiders and procurers criminals, it is only a re-enactment of the common law." And since at the common law the buyer of liquor sold was not punishable as an accessory, the statute did not make him liable. There are other cases to the same effect. Commonwealth v. Willard, 22 Pick. (Mass.) 476; State v. Teahan, 50 Conn. 92.

In State v. Scott, supra, at pages 322, 323 (68 A 258), the background of statutes similar to section 6716 is painted in more detail. It is there pointed out that, at the common law, all persons concerned in the commission of " any offense" were liable to the same punishment as the principal offender; that accessories in felonies, except treason, could not be prosecuted until after the conviction of the principal offender, and were classified according to their relation to the crime as accessories before, at, and after the act, while accessories in lesser offenses could be prosecuted as principals at any time. " This complicated system of nicely technical distinctions," it is said, was long ago abolished by statute here and in England. " Now, all persons...