State v. Terry

• Decision Date: 18 June 1906
• Citation: 73 N.J.L. 554,64 A. 113
• Parties: STATE v. TERRY.
• Court: New Jersey Supreme Court

64 A. 113

73 N.J.L. 554

STATE

v. TERRY.

Court of Errors and Appeals of New Jersey.

June 18, 1906.

(Syllabus by the Court.)

Error to Supreme Court.

Ion E. Terry was convicted of an illegal sale of liquor, and brings error from a judgment of the Supreme Court (61 Atl. 148) affirming conviction. Affirmed.

John W. Westcott and Gilbert Collins, for plaintiff in error. J. Hampton Fethian, Prosecutor of the Pleas, for the State.

DIXON, J. This writ of error brings up a judgment of the Supreme Court affirming a conviction of the defendant on an indictment charging him with the unlicensed sale of liquor in quantities less than a quart. The statute on which the indictment rests in section 66 of the crimes act of 1898 (P. L. p. 813), and it enacts that "it shall not be lawful for any person, without license for that purpose first had and obtained, to sell or permit to be sold, any vinous, spirituous or malt liquors, wine, rum, gin, brandy or other ardent spirits, or any composition of which any of the said liquors shall form the chief ingredient, except such as shall be compounded and intended to be used as medicine, by any measure less than one quart; * * * and any person so offending shall be guilty of a misdemeanor." At the trial the evidence tended to prove that the liquor sold by the defendant was whisky, and he insists that the jury should have been instructed that, if he, being a druggist, intended the whisky to be used as a medicine, then he was not guilty within the terms of that statute. This position cannot be maintained. In State v. Townley, 18 N. J. Law, 311, the Supreme Court held that the clause "compounded and intended to be used as medicine" applied only to the compositions mentioned. In the statute, and this has since been generally regarded as the correct interpretation of the act. The unreported case of State v. Wyman (see Giff. Stat. Cons. 181, note) probably dealt with some other feature of the decision in the Townley Case. Mr. Justice Van Syckle in Roberson v. Lambertville, 38 N. J. Law 69, adopted a view opposed to this construction of the law, but the later case of State v. Marks, 65 N. J. Law, 84, 46 Atl. 757, returns to the meaning first announced. We think that is the proper import of the enactment. While, of course, every kind of liquor mentioned is chemically a compound, none of them would be so designated in ordinary speech except the compositions described.

The indictment charged that the sales were made in the city of Millville, and the defendant put in evidence at the trial two ordinances of the city providing punishment for the unlicensed sale of spirituous liquors, and thereupon he contended that, by force of the supplement to the inn and tavern act approved March 26, 1874 (Gen. St. p. 1795), such sales in that city were not indictable. The criminal statutes (Gen. St. p. 1060, §§ 60, 61), which, according to that supplement, were to be superseded by city ordinances, imposed upon the offender a fine not exceeding $20. The first section of the statute commonly called the "Werts Act," approved March 20, 1889 (Gen. St. p. 1810), declared that such offenders should be guilty of the offense of keeping a disorderly house, a crime punishable, under our Constitution, only by indictment (State v. Anderson, 40 N. J. Law, 224), and subjecting the criminal to imprisonment not exceeding two years and a fine not exceeding $500. Section 192 of the crimes act of 1874 (Gen. St. p. 1083). The present crimes act (P. L. 1898, p. 813) styles offenses of this nature misdemeanors (sections 66, 68), and renders the offender liable to a fine not exceeding $1,000 and imprisonment not exceeding three years (section 218). The language of these statutes of 1889 and 1898 is sufficiently comprehensive to embrace every portion of the state, and it cannot be supposed...