State v. Lucia
| Decision Date | 04 November 1931 |
| Citation | 157 A. 61 |
| Parties | STATE v. LUCIA. |
| Court | Vermont Supreme Court |
Exceptions from City Court of Barre; H. William Scott, Judge.
Irving Lucia was convicted of furnishing and possessing intoxicating liquor, and he brings exceptions.
Judgment that there is no error and that defendant take nothing by his exceptions.
Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.
C. O. Granai, State's Atty., of Barre, for the State.
Marcell Conway, of Barre, for defendant.
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 homebrew 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 analysed 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 spirituous 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 oflicers 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, but whether it contained more than the statutory alcoholic content. The effect upon any one of drinking any quantity of it was immaterial if this content was exceeded.
Furthermore, the offers upon which this proposed evidence was predicated did not state the quantity supposed to have been consumed by the two persons. In the case of one witness the offer was to show "that the two parties that were sitting there at that time * * didn't show the effects of having been drinking intoxicating liquor," and in the other, "that these two friends were sitting at the kitchen table and had drank a certain quantity of this so-called home brew; and that there was no evidence that they were affected or under the influence of this liquid." At the time of these exceptions no evidence had been introduced tending to show the amount which had been consumed by either, and, although later on both the respondent and Dennis testified that each drank six glasses of it, the offer was not renewed. When evidence is excluded the excepting party must show that in the then present aspect of the case it was admissible. Foote v. Woodworth, 66 Vt. 216, 221, 28 A. 1034; State v. Lapan, 101 Vt. 124, 132, 141 A. 686; Ravine House Co. v. Bradstreet, 102 Vt. 370, 375, 376, 148 A. 481. Taking the respondent's view of the admissibility of this evidence as sound, no error appears, because not only must an offer be specific enough to make the relevancy of the offered evidence apparent to the trial court (Bancroft's Adm'x v. Cote, 90 Vt. 358, 98 A. 915; Moncion v. Bertrand, 98 Vt. 332, 341, 127 A. 371; Town of Jericho v. Town of Huntington, 79 Vt. 329, 334, 65 A. 87), but to make the exclusion error it must appear affirmatively that at the time of the ruling the record of the trial court disclosed such facts as would make the evidence admissible, or that in connection with the offer there was also an offer to show such facts as would make it admissible. Gregg v. Willis, 71 Vt. 313, 316, 45 A. 229. The offer to show the drinking of a "certain quantity" was so indefinite as to make it quite within the discretion of the trial court to exclude it. Merrihew's Adm'r v. Goodspeed, 102 Vt. 206, 212, 147 A. 346, 66 A. L. R. 1109.
At the close of the evidence the respondent moved for a directed verdict of not guilty, and excepted to the denial of it. The first ground was "that there was no evidence to show that the respondent possessed or furnished any beverage containing more than one-half of one per cent. of alcohol by volume at 60 degrees Fahrenheit on the date charged in the complaint * * * or any other date prior thereto."
It is urged that, although the liquid showed an alcoholic content of 6.6 per cent., the analysis was not made until nine days after the seizure, and that this delay would, according to common knowledge, have a tendency to change the content, and that there was no evidence that, when analysed, it was in the same condition as when seized. The fact that the bottle was carried by the state's attorney in his automobile from Barre to the laboratory at Burlington is also urged as a factor in the situation. But, assuming that these matters have the effect the respondent claims for them, we think that the extent, if any, to which they affected the weight to be given to the report of the analysis, was for the jury to say. There was, indeed, other evidence to be considered in connection with it. The respondent himself described the method by which he manufactured the home-brew in question. He testified that he placed certain quantities of sugar, malt, and water, together with a yeast cake, in a wash boiler, covered the mixture with a sheet of heavy cardboard, and left it to ferment, "to give it a chance to get good, taste better," following which he bottled it. The bottles were sealed with air-tight metal caps. Altogether there was a question for the jury upon this issue, and the motion was properly denied upon this ground.
The other ground for the motion was
By section 4, No. 204, Acts of 1921, it is provided that: "A person shall not * * * furnish or possess any intoxicating liquor except as authorized in this act, and all the provisions of this act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented, except, however, liquor, preparations and compounds for non-beverage purposes and wine for sacramental purposes may be * * * furnished and possessed, but only as provided by or under the laws of the United States." Section 1 declares that the act
By the National Prohibition Act, commonly known as the Volstead Act, tit. 2, § 33 (27 USCA § 50), it is provided that: "It shall not be unlawful to possess liquors in one's private dwelling while the same is occupied and used by him as his dwelling only." It is upon this statute that the respondent bases his claim to have a verdict directed in his favor; and therefore the question is: How far, if at all) it affects the provisions of section 4, No. 204, Acts 1921, above quoted, which absolutely prohibit the possession of intoxicating liquor in any place at all, with certain exceptions which are not material here, because there is no claim that the home-brew was liquor for non-beverage purposes or wine for sacramental purposes.
The Eighteenth Amendment to the United States Constitution, by section 1 thereof, prohibits the manufacture, sale, transportation, importation, or exportation of...
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