State v. Smith

• Court: Wisconsin Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: State v. Smith, 184 Wis. 664, 200 N.W. 638 (Wis. 1924)
• Decision Date: 16 October 1924
• Parties: STATE v. SMITH.

184 Wis. 664

200 N.W. 638

STATE

v.SMITH.

Supreme Court of Wisconsin.

Oct. 16, 1924.

Report from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.

Royal Smith was convicted of violating the Prohibition Act. On report of questions from the circuit court. Questions answered in part.

Defendant below was charged in the municipal court for Fond du Lac county with having in his possession unlawfully privately manufactured distilled intoxicating liquor in said county on May 3, 1923, and for then and there selling and dealing in intoxicating liquor. After preliminary hearing he was bound over for trial to the circuit court. In the circuit court a similar information was filed, defendant pleaded not guilty, and requested that the case be tried upon the record, including the testimony as made in and returned by said municipal court. He further and in open court expressly waived a jury trial and requested and consented to a trial by the court. Certain intoxicating liquor had been found on his premises when examined by the officers under a form of search warrant. Prior to trial defendant moved the court to require its return to him and to suppress its use as evidence on the ground that the search warrant was illegal and defective and in violation of his constitutional privilege. He presented the same objection on the trial. It appears without dispute that at the time in question defendant did not have a license to sell nonintoxicating beverages. He was found guilty, and then upon his request and consent the circuit court reports here for decision under section 4721, Stats., four questions, stated below.H. L. Ekern, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and James Murray, Dist. Atty., of Fond du Lac, for plaintiff.

Reilly & O'Brien, of Fond du Lac, for defendant.

PER CURIAM.

[1] First question: Does the provision of the state prohibition law next herein quoted make it an offense for a person not licensed to sell nonintoxicating beverages to have in his possession privately manufactured distilled intoxicating liquor?

The material parts of this statute are as follows:

Section 165.01, subsec. (32) (d), Stats.: “There shall be no property rights in any liquor unlawfully possessed, * * * and all such liquors, * * * are contraband subject to seizure, sale, or other disposition by the commissioner. * * * The possession of any privately manufactured distilled liquors without such permit [i. e. as provided in the National Prohibition Act] is hereby prohibited, and the possession of any such * * * liquor shall be prima facie evidence of unlawful manufacture of liquor.”

The question now presented is whether it is intended by this particular subsection to make the act of having in one's possession privately manufactured distilled liquor, whether manufactured by such person or not, a distinct offense. It is argued that because the prohibition is contained in a section of the statute which declares that no property rights may be had in liquor unlawfully possessed, and that the possession of privately manufactured distilled liquor shall be prima facie evidence of unlawful manufacture of liquor, indicates a legislative intent that the mere possession thereof shall not be deemed a separate and distinct offense.

In Bastle v. State, 181 Wis. 164, 194 N. W. 29, it is pointed out that section 165.01, subsec. (3), of this same chapter, prohibits three things, viz. the manufacture, the sale, or the transportation of intoxicating liquors, and by the provision under which the prosecution in that case was had, viz. subsection (30), regulating the licensed premises for the sale and consumption of nonintoxicating liquors, it is expressly provided:

“No such person [i. e. one having a license] shall have in his possession on or about said premises any intoxicating liquor.”

That case also determined that a conviction under a charge of having, while so licensed to sell nonintoxicating liquors, unlawful possession of intoxicating liquors, the proof showing prior revocation of such license, could not be supported by relying upon the provision now before us, viz. subsection (32) (d), supra.

The precise question here involved was not, however, presented in the Bastle Case, supra, nor in the case of Winkler v. State (Wis.) 199 N. W. 457, which passed upon the questions arising under subsections (3) and (30), supra.

In State v. Nelson, 177 Wis. 84, 187 N. W. 744, the term “manufacture” in said subsection (3), supra, was held to make unlawful the making in the home, for consumption there wine with an excessive alcoholic content. Referring now to the language quoted from subsection (32), “The possession of any privately manufactured distilled liquors without such permit is hereby prohibited,” the question is, does such language create an offense? The word “offense” is very freequently used in the law of this state relating to crimes. Crimes are described as offenses against the lives and persons of individuals; offenses against property; offenses against public justice; offenses against public policy, etc. In State v. West, 42 Minn. 147, 43 N. W. 845, it is said:

“The terms ‘crime,’ ‘offense,’ and ‘criminal offense’ are all synonymous, and ordinarily used interchangeably, and include any breach of law established for the protection of the public, as distinguished from an infringement of mere private rights, for which a penalty is imposed or punishment inflicted in any judicial proceeding.”

By subsection (32) of section 165.01, it is provided:

“Any person violating any of the provisions of this chapter for which a specific penalty is not prescribed, shall for the first offense be fined in addition to the costs of the action not less than one hundred nor more than one thousand dollars. * * *”

[2] It can scarcely be argued that any person who has in his possession privately manufactured distilled liquor, without a lawful permit, is not doing something which the statute prohibits and therefore in violation of its terms. To hold that because the prohibition is contained in the section which relates to other matters, a violation of its terms does not constitute an offense, is to take something out of the statute that the Legislature has inserted in plain language. Statutes are to be interpreted in accordance with their plain and obvious meaning and to carry out the clearly expressed legislative intent. Cunard Steamship Co. v. Mellon, 262 U. S. 100, 43 S. Ct. 504, 67 L. Ed. 894, 27 A. L. R. 1306. See generally note and cases cited, 26 A. L. R. 668, under title, “c. Possession.”

We therefore conclude that question No. 1 should be answered, “Yes.”

[3] Second question: Is moonshine whisky of alcoholic content such as to be intoxicating under the statutory definition “privately manufactured distilled intoxicating liquor”?

This is answered, “Yes.” We do not deem it requiring discussion. The authorities so hold. State v. Harris, 106 Or. 211, 211 P. 944;State v. Critzer, 122 Wash. 88, 209 P. 1081. This court long ago indicated the extent to which judicial notice will be taken as to intoxicants. Briffitt v. State, 58 Wis. 39, 44, 16 N. W. 39, 46 Am. St. Rep. 621. We find nothing in subsequent statute or decision which narrows that which was there declared to be within the domain of judicial notice.

[4] Third question: Is a search warrant issued upon an affidavit made “upon information and belief” valid?

The record before us as to this question is in such condition that we shall not pass upon it. A stipulation is returned here as to the docket entries by the justice of the peace by whom the warrant was issued, inconsistent with or contradicting certain recitals in the record as made before the circuit court. We do not in this form of proceedings, any more than in passing upon the exceptions provided for in section 4720, Stats., examine the whole record or consider such questions of fact. Corscot v. State, 176 Wis. 103, 186 N. W. 179. This third question therefore is not here answered. The same subject-matter has, however, just been passed upon by this court in State v. Baltes, 198 N. W. 282.

[5] Fourth question: Has the circuit court jurisdiction to impose sentence in a criminal case upon a finding of guilty by the trial judge where the defendant has in open court waived trial by a jury and consented to and requested a trial by the court without a jury?

We are constrained to answer this question upon the Constitution of this state and prior decisions of this court, “No.”

Section 5, art. 1, Wis. Const., preserves inviolate the right to jury trial in all cases of law, and expressly provides, “but a jury trial may be waived by the parties in all cases in the manner prescribed by law,” and as amended in 1922 authorizes legislation permitting a valid verdict by five-sixths of such jury. This guaranty, however, is to civil, not criminal, cases. Bennett v. State, 57 Wis. 69, 74, 14 N. W. 912, 46 Am. St. Rep. 26.

The trial by jury in criminal cases is secured by section 7 of article 1, Const. This section contains no similar provision to that in section 5, supra, for a waiver of jury trial. Said section 7 provides:

“In all criminal prosecutions the accused shall enjoy the right * * * to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been...