State v. Miller

• Decision Date: 09 November 1923
• Docket Number: 5328.
• Citation: 220 P. 97,69 Mont. 1
• Parties: STATE v. MILLER.
• Court: Montana Supreme Court

220 P. 97

69 Mont. 1

STATE v. MILLER.

No. 5328.

Supreme Court of Montana

November 9, 1923

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

Paul Miller was convicted of unlawfully possessing intoxicating liquor and of unlawfully transporting intoxicating liquor and he appeals. Reversed and remanded, with directions to grant new trial.

Victor R. Griggs, of Havre, and C. A. Spaulding, of Helena, for appellant.

W. D Rankin, Atty. Gen., and L. V. Ketter, Asst. Atty. Gen., for the State.

CALLAWAY C.J.

Upon information, in two counts, the defendant was found guilty of unlawfully possessing intoxicating liquor, and of unlawfully transporting intoxicating liquor. The jury left the punishment to be fixed by the court. By its judgment the court sentenced the defendant to imprisonment in the county jail for a term of 30 days and to pay a fine of $200 upon each count. Hence this appeal.

Defendant's points necessary to be considered are two: That the state failed to prove the liquor in question was fit for beverage purposes, and the court misdirected the jury as to the punishment and entered an erroneous judgment upon the verdicts.

I. The liquor which defendant was charged with possessing and transporting was beer. That he did possess and transport beer is conceded, but his counsel insist that the case made out by the state is fatally defective, because the proof was insufficient to show that the beer was fit for beverage purposes.

While it may be observed in passing that there was some testimony tending to show that the beer was fit for beverage purposes (there was no testimony to the contrary), we think the question sought to be presented is not debatable under the terms of section 11048, R. C. 1921. That section reads as follows:

"When used in this act, or in any other laws of the state relating to intoxicating liquors, the word 'liquor' or the phrase 'intoxicating liquor' shall be construed to include alcohol, brandy, whisky, rum, gin, beer, ale, porter, and wine, and in addition thereto any spirituous, vinous, malt, or fermented liquor, liquids, and compounds, whether medicated, proprietary, patented or not, and by whatever name called, containing one-half of one per centum or more of alcohol by volume which are fit for use for beverage purposes; provided, that the foregoing definition shall not extend to dealcoholized wine, nor to any beverage or liquid produced by the process by which beer, ale, porter, or wine is produced, if it contains less than one-half of one per centum of alcohol by volume, and is made as prescribed in section 11082 of this Code, and is otherwise denominated as beer, ale, or porter, and is contained and sold in, or from, such sealed and labeled bottles, casks, or containers as the secretary of state may by regulation prescribe."

From the foregoing it is seen that the section embraces two classes of liquors the use of which is prohibited. The first class comprises alcohol, brandy, whisky, rum, gin, beer, ale, porter, and wine; the second "any spirituous, vinous, malt or fermented liquor, liquids and compounds, whether medicated, proprietary, patented or not, and by whatever name called, containng one-half of one per centum or more of alcohol by volume, which are fit for use for beverage purposes." The use of the words "and in addition thereto" is significant; compare the words "and any" used in a similar place in section 2, Laws of 1917, post, of which section 11048 is amendatory.

The qualifying phrase "fit for use for beverage purposes" relates only to the liquor, liquids, and compounds which follow the words "in addition thereto" in the statute. Such was the construction of section 2 of chapter 143, Laws of 1917, as given by this court in State v. Centennial Brewing Co., 55 Mont. 500, 179 P. 296. Section 2 read:

"The phrase 'intoxicating liquors' shall be held and construed to include whisky, brandy, gin, rum, wine, ale and any spirituous, vinous, fermented or malt liquors and liquor or liquid of any kind or description, whether medicated or not, and whether proprietary, patented or not, which contains as much as two per centum of alcohol measured by volume, and which is capable of being used as a beverage."

It will be noted that when section 2 was amended by the enactment of section 1 of chapter 9, Laws of 1921, now section 11048, supra, the word "beer" was added to the first class, while the second class was made still more specific. While the language following the word "provided" in section 11048 is not necessary to this inquiry, it is included in this opinion to show the full extent of the amendment made. The action of the Legislature in drafting section 11048 is a confirmation of the construction placed upon section 2, supra, by this court. Beer is a word as well understood as are the words "brandy, whisky, rum, gin, ale, porter, and wine." Beer is not merely capable of being used as a beverage, but is in fact a beverage, and, as was observed in State v. Centennial Brewing Co., supra, it is a contradiction of terms to speak of beer as not being capable of being used as a beverage. The beer in question carried an alcoholic content of 4 1/2 per cent. or over.

II. The court instructed the jury:

"That the punishment prescribed for the offense contained in each of the counts in the information in this case is a fine of not less than $10 nor more than $500, or by imprisonment for not more than six months or by both such fine and imprisonment."

That the foregoing instruction was erroneous the Attorney General concedes. He says:

"A careful examination of the statutes of this state dealing with the subject of intoxicating liquor fails to disclose any other penalty for the offense of illegally possessing or transporting intoxicating liquor except that provided by section 11075, R. C. M. 1921."

That section fixes a maximum penalty of $500 for a first offense for each of the crimes charged in the information. With the Attorney General's conclusion we agree. The offenses of possessing and transporting intoxicating liquor came into our statutes with the enactment of chapter...