State v. Moore

• Decision Date: 30 December 1922
• Citation: 212 P. 349,36 Idaho 565
• Parties: STATE, Respondent, v. RAYMOND MOORE, Appellant
• Court: Idaho Supreme Court

212 P. 349

36 Idaho 565

STATE, Respondent, v. RAYMOND MOORE, Appellant

Supreme Court of Idaho

December 30, 1922

INTOXICATING LIQUORS - POSSESSION-VOLSTEAD ACT-CONSTITUTIONAL LAW-LEGISLATIVE POWER-CRIMINAL LAW-INFORMATION-DEMURRER.

1. The law of this state forbidding the possession of intoxicating liquors in one's private dwelling as well as elsewhere is not in conflict with the Volstead Act.

2. Section 26 of article 3 of the state constitution prohibiting the manufacture, sale, keeping for sale and transportation for sale of intoxicating liquors for beverage purposes, is not a limitation upon the power of the legislature in the matter of prohibition and did not repeal the statutes of this state prohibiting the possession of intoxicating liquors.

3. The information in this case held to be sufficient.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Reddoch, Judge.

Appellant was convicted of the crime of possession of intoxicating liquors. Affirmed.

Affirmed.

Paine &amp Snow, for Appellant.

The Volstead Act is the supreme law of the land. (Rhode Island v. Palmer, 253 U.S. 350, 40 S.Ct. 486, 64 L.Ed 946; art. 6, U.S. Const.; 33 Federalist (Lodge), 192; Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 210, 6 L.Ed. 23; Northern Securities Co. v. United States, 193 U.S. 197, 347, 24 S.Ct. 436, 461, 48 L.Ed. 679; Christian Feigenspan, Inc., v. Bodine, 264 F. 186.)

The description of the offense charged in the information is too general, indefinite and uncertain. (State v. London, 99 Ore. 189, 195 P. 344.)

Sec. 33 of the Volstead Act is a valid exercise of the power conferred upon Congress by the 18th amendment. (Ruppert v. Caffey, 251 U.S. 264, 40 S.Ct. 141, 64 L.Ed. 260; Hoke v. United States, 227 U.S. 308, 33 S.Ct. 281, 57 L.Ed. 523; Purity Extract & T. Co. v. Lynch, 226 U.S. 192, 33 S.Ct. 44, 57 L.Ed. 184; Crane v. Campbell, 245 U.S. 304, 38 S.Ct. 98, 62 L.Ed. 304; Street v. Lincoln Safe Deposit Co., 254 U.S. 88, 10 A. L. R. 1548, 41 S.Ct. 31, 65 L.Ed. 151, 267 F. 706; United States v. Murphy, 264 F. 842.)

Since the effective date of the 23d amendment to the state constitution, legislation prohibiting the possession of liquor in the home for personal use and with no intent to sell the liquor is invalid. (Rhode Island v. Palmer, 253 U.S. 350, 40 S.Ct. 486, 64 L.Ed. 946; Bishop, Stat. Crimes, sec. 1054; People v. Comptroller, 152 N.Y. 399, 36 N.E. 852; State v. Gilman, 33 W.Va. 146, 10 S.E. 283, 6 L. R. A. 847; Commonwealth v. Campbell, 133 Ky. 50, 117 S.W. 383, 24 L. R. A., N. S., 172; State ex rel. Francis v. Moran, 76 Fla. 304, 2 A. L. R. 1068, 79 So. 753; Joyce on Intoxicating Liquors, sec. 79; Gherna v. State, 16 Ariz. 344, 146 P. 494; Ex parte Brown, 38 Tex. Cr. 295, 42 S.W. 554; Morris v. Wrightson, 56 N.J.L. 201, 28 A. 56, 22 L. R. A. 548; Matter of N.Y. Elevated R. R. Co., 70 N.Y. 327; Rodman v. Munson, 13 Barb. (N. Y.) 188; Page v. Allen, 58 Pa. 338, 98 Am. Dec. 272; State v. Tucson Gas. Co., 15 Ariz. 294, 138 P. 781; Wilcox v. Edwards, 162 Cal. 455, 123 P. 276; secs. 1, 21, art. 1, and sec. 26, art. 3, Idaho Const.)

The 18th amendment extends the federal power to the intrastate possession of intoxicating liquors for beverage purposes and does not prohibit the possession or consumption of such liquors, and privileges and immunities duly conferred by Congress upon citizens of the United States to possess and consume intoxicating liquors, unconnected with the sale, manufacture, transportation, importation and exportation thereof for beverage purposes, are protected by the 14th amendment from abridgment by state laws. (Hall v. Moran, 81 Fla. 706, 89 So. 104; Burrows v. Moran, 81 Fla. 662, 89 So. 111; Johnson v. State, 81 Fla. 783, 89 So. 114; Haile v. Gardner, 82 Fla. 355, 91 So. 376.)

Roy L. Black, Attorney General, and James L. Boone, Assistant, for Respondent.

The state may prohibit the mere possession of intoxicating liquors. (In re Crane, 27 Idaho 671, 151 P. 1006, L. R. A. 1918A, 942; Crane v. Campbell, 245 U.S. 304, 38 S.Ct. 98, 62 L.Ed. 304.)

A constitutional provision such as sec. 26, art. 4, of the constitution of the state, does not limit or abridge the power of the legislature to prohibit the traffic in intoxicating liquors. (State v. Durein, 70 Kan. 13, 80 P. 987, 15 L. R. A., N. S., 908; State v. Weiss, 84 Kan. 165, 113 P. 338, 36 L. R. A., N. S., 73; State v. Kane, 15 R. I. 395, 6 A. 783; State v. Brown, 40 S.D. 372, 167 N.W. 400; Fitch v. State, 102 Neb. 361, 167 N.W. 417; Schwartz v. People, 47 Colo. 483, 104 P. 92; Alexander v. People, 7 Colo. 155, 2 P. 894; Galovich v. People, 68 Colo. 299, 189 P. 34; Morasso v. Van Pelt, 77 Fla. 432, 81 So. 529; Lakes v. Goodloe (Ky.), 242 S.W. 632.)

Congress has no general power to enact police regulations within the limits of the state except in interstate commerce. (United States v. DeWitt, 9 Wall. 41, 19 L.Ed. 593; United States v. Reese, 92 U.S. 214, 23 L.Ed. 563; United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588.)

No power is conferred by the constitution upon Congress to establish mere police regulations within the state. (United States v. DeWitt, supra.)

Prior to the adoption of the amendment and the War Prohibition Act, the entire subject of intoxicating liquors, including total or partial prohibition of the manufacture, transportation and sale, and the possession thereof, and the regulation thereof, apart from interstate commerce, was vested in this state as a part of its police power. (Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; Re Rahrer, 140 U.S. 545, 11 S.Ct. 865, 35 L.Ed. 572; South Carolina v. United States, 199 U.S. 437, 453, 4 Ann. Cas. 737, 26 S.Ct. 110, 50 L.Ed. 261; Crane v. Campbell, 245 U.S. 304, 38 S.Ct. 98, 62 L.Ed. 304.)

The 18th amendment to the constitution of the United States invalidated only those legislative acts of a state which authorized or sanctioned what the 18th amendment prohibited. (Rhode Island v. Palmer, 253 U.S. 350, 40 S.Ct. 486, 64 L.Ed. 946; Pennsylvania v. Vigliotti, U.S. S.Ct. Adv. Op. No. 13, Aug. 15, 1922, p. 389.)

The 18th amendment preserves inviolate laws of the state consistent with its provisions. (United States v. Peterson, 268 F. 864.)

The granting of concurrent power to enforce under the second section of the 18th amendment does not deprive the states of power to enforce prohibition within their own spheres of action. (Rhode Island v. Palmer, supra; Pennsylvania v. Vigliotti, supra; Commonwealth v. Nickerson, 236 Mass, 281, 10 A. L. R. 1568, 128 N.E. 273; State v. District Court, 58 Mont. 684, 194 P. 308; Jones v. Hicks, 150 Ga. 657, 104 S.E. 771; United States v. Peterson, supra; Ex parte Volpi (Cal. App.), 119 P. 1090; United States v. Lanza et al., U.S. , 43 S.Ct. 141, 67 L.Ed. .)

Under the 18th amendment, the states are not limited in promulgating and enforcing effective independent legislation so long as the same is put forth in aid of enforcement, and not for the obstruction of the dominant purposes of the 18th amendment. (State v. Nickerson, supra; State v. District Court, supra; United States v. Peterson, supra; Commonwealth v. Vigliotti, 271 Pa. 10, 115 A. 22; Merryweather v. State, 125 Miss. 435, 87 So. 411; Woods v. City of Seattle (D. C.), 270 F. 316; Powell v. State, 18 Ala. App. 101, 90 So. 138.)

It should never be held that Congress intends to supersede, or by its legislation suspend, the exercise of the police powers of the state, unless its purpose to effect that result is clearly manifested. (Sinnot v. Davenport, 22 How. 227, 243, 16 L.Ed. 243; Reid v. Colorado, 187 U.S. 148, 23 S.Ct. 96, 47 L.Ed. 114.)

Idaho's statutes are effective independent legislation aiding in the enforcement of prohibition. (Crane v. Campbell, supra.)

There is no irreconcilable conflict between an act of Congress and the statute under the 18th amendment unless the statute permits what the 18th amendment or national Prohibition Act prohibits, or tends to liberalize the prohibitions of either. (State v. Nickerson, supra; State v. District Court, supra; United States v. Peterson, supra; Commonwealth v. Vigliotti, supra; Merryweather v. State, supra; Woods v. City of Seattle (D. C.), 270 F. 316; Powell v. State, 18 Ala. App. 101, 90 So. 138.)

The information in this case is sufficient. (State v. Petrogalli, 34 Idaho 232, 200 P. 119.)

DUNN, J., WILLIAM A. LEE, J. Rice, C. J., Budge and McCarthy, JJ., concur, Lee, J., concurs in the result, Dunn and Wm. E. Lee, JJ., concurring in the conclusion.

OPINION

DUNN, J.

Appellant was charged by the prosecuting attorney of Ada county with wilfully and unlawfully having in his possession intoxicating liquor, the charging part of the information reading as follows:

"That the said Raymond Moore, on or about the 27th day of February, 1921, at Boise, in the County of Ada, State of Idaho, then and there being, did then and there wilfully and unlawfully have in his possession intoxicating liquor."

Appellant demurred to the information on numerous grounds and his demurrer was overruled.

The following stipulations were entered into by the prosecuting attorney on behalf of the state and by counsel for appellant on his behalf:

"It is hereby stipulated and agreed by and between the State of Idaho, Plaintiff, represented by Elbert S. Delana Prosecuting Attorney, and Raymond Moore, defendant represented by Karl Paine and Edwin Snow, Esqs., that the intoxicating liquor referred to in the Information filed herein was on the date alleged in said Information possessed by defendant in his private dwelling while the same was occupied and used by him as his dwelling only, and was for use only for personal consumption of the owner thereof, and his family residing in such dwelling and of his bona fide...