State v. Torello

• Decision Date: 15 April 1924
• Citation: 100 Conn. 637,124 A. 375
• Court: Connecticut Supreme Court
• Parties: STATE v. TORELLO ET AL.

124 A. 375

100 Conn. 637

STATE v. TORELLO ET AL.

Supreme Court of Errors of Connecticut.

April 15, 1924

Appeal from Superior Court, Hartford County; John P. Kellogg, Judge.

Louis Torello and others were prosecuted for transporting intoxicating liquors. On directed verdict of not guilty, the State appeals. Error and new trial as to defendant named. No error as to other defendants.

Information charging in the first count Torello with transporting intoxicating liquors, to wit, alcohol, and in the second count, Lawlor, Cobla, Vigilanti, and Semprone, with assisting, abetting, counseling, hiring, and commanding in the commission of the crime charged in the first count. Verdict of not guilty rendered by direction of the court, and appeal by the State. Error and new trial ordered as to the accused Torello. No error as to other accused.

BEACH J., dissenting.

Reinhart L. Gideon, Asst. State's Atty., of Hartford, for the State.

Reuben Taylor and William A. Reiner, both of Hartford, for appellees Vigilanti and Semprone.

William J. McKenna and John M. Chapnick, both of New Haven, for appellees Cobla and Lawlor.

Max L Goldenthal, Frank Covello, and Francis A. Pallotti, all of Hartford, for appellee Torello.

WHEELER, C.J.

The information, in the first count, charges the accused Torello with transporting for purposes of sale or exchange intoxicating liquor, to wit, alcohol, and, in the second count, the other four accused with having aided and abetted in the commission of this crime. The crime charged in the first count is based upon section 8 of chapter 291 of the Public Acts of 1921, which provides:

" Every person who, for the purpose of sale or exchange, without a United States government permit, shall transport spirituous and intoxicating liquors by means of a vehicle or boat, shall be fined not more than two thousand dollars or imprisoned not more than two years or both, and every person accompanying any such vehicle or boat in which such spirituous and intoxicating liquors are so transported, without such permit, may be prosecuted and punished as an accessory."

The crime charged in the second count is based upon General Statutes, § 6716, familiarly known as our accessory statute, and providing that the accessory " may be prosecuted and punished as if he were the principal offender."

The first count failed to allege one of the essential elements of the crime charged in section 8, that the accused transported this intoxicating liquor without a United States government permit. No demurrer was interposed to, nor has other attack been made upon, the sufficiency of this information. The sufficiency of the information cannot be considered upon the direction of a verdict; the only issue to be determined is whether, upon the evidence, a verdict could not be legally rendered. While, so far as we recall, this specific question has not been before us, it is necessarily involved in our rule authorizing the direction of a verdict. The reasons upon which this rule of law rests have been well stated in State v. Gardner, 174 Iowa, 748, 156 N.W. 747, L.R.A. 1916D, 767, Ann.Cas. 1917D, 239:

" Defendant asked the court to direct the jury to acquit on the ground that the indictment fails to charge the crime of lewdness. * * * In effect the offered instruction attempts to operate as a demurrer to the indictment. It is not required that we pass upon whether the indictment is well criticized. The statute permits the points raised by the offer to be raised by demurrer (Code, § 5328) or by motion in arrest of judgment (Code, § 5426). Either method of attack being sustained, it is often possible to cure the defect by a new accusation. We think it fairly appears to be the legislative intent that such an attack upon the indictment shall not be made at a time when to sustain it must result in a final acquittal; that the defendant may not decline to use his right to demur nor anticipate his right to proceed by motion in arrest, and substitute for both an offered instruction which, if given, works an acquittal, thus obtaining a result which the employment of neither of the other methods would yield. Why provide for a demurrer, with power of resubmission, if same be sustained? Why provide for a second opportunity to demur by means of a motion in arrest, if, at the pleasure of the defendant, neither may be used, and an acquittal be obtainable by attacking the indictment by means of an offered instruction? Who would ever use demurrer or motion in arrest if this be permissible? We can see no justification for the defendant's waiting until all the evidence has been taken on both sides to so present a demurrer to the indictment; no reason why he should not present it before the trial is actually begun; why, having passed this point, he should be allowed to anticipate the time, if ever it shall come, when he need present a motion in arrest of judgment. To make him proceed either at the one time or the other, rather than between the two, is not only orderly procedure, but absolutely fair to both the state and the defendant. It takes nothing justly due from defendant, and, as said, avoids the making said two statutes idle."

See, also, State v. BEACH, 147 Ind. 77, 43 N.E. 949, 46 N.E. 145, 36 L.R.A. 179; Gerke v. Fancher, 158 Ill. 375, 382, 41 N.E. 982; Romaine v. New York, N.H. & H. R. Co., 91 A.D. 1, 2, 86 N.Y.Supp. 248; 26 Ruling Case Law, p. 1078, § 81; 39 Cyc. 1565, 1575, 1579.

It is suggested that the statutory provision, making an essential ingredient of the crime charged the possession of a United States permit, was the charge of an act which could not be complied with, since neither the Voistead Act (U. S. Comp. St. Ann. Supp. 1923, § 10138 1/4 et seq.) nor the regulations thereunder require such permit, and that therefore the term " without a United States permit" is to be construed as if it contained the implied provision, provided such permit has been required by the United States. Under title 2, § 3, of that act (section 10138 1/2aa), no one can transport intoxicating liquor except for the purposes specified in the Volstead Act and then only upon a permit. Under section 3 and section 4 of this act (sections 10138 1/2aa, 10138 1/2b) partially denatured alcohol, such as that in question, may be transported for nonbeverage purposes. The transportation may be subject to the requirement of procuring a permit, or the one transporting it may procure a permit by making application to the proper authority. Section 4 also provides that the selling of denatured alcohol for beverage purposes, or the sale under circumstances from which the seller might reasonably deduce the intention of the purchaser to use such alcohol, is within the penalty of the act. Whether the possession or transportation of specially denatured alcohol which in fact is intoxicating liquor and designed for use as a beverage is a crime under the Volstead Act and fairly within its terms, although not expressly made so, we are not now called upon to decide. The United States had the power to require a permit, and the transporter the privilege of securing a permit upon application. Our statute has made it a prerequisite that the transporter secure such permit. It is within his power to secure this; hence the criticism of our statute in this particular falls. But whether or not the Volstead Act gave to the transporter this privilege of securing the permit is of no consequence.

The Eighteenth Amendment is a limitation, not a grant of power, and the domain of the police power remains in the states as it did before the amendment, with the limitation upon the states that they cannot pass laws in conflict with the amendment or the Volstead Act passed in its aid. We say in State v. Ceriani, 96 Conn. 130, 113 A. 316:

" Legislation by the state must support the primary purpose of the amendment, and cannot be repugnant to the act of Congress. * * * In the exercise of its police power the state may legislate for the enforcement of the amendment by different means and methods which do tend to this end."

It cannot be contended that our statute upon which this information is based does not tend to support the enforcement of the amendment. The Pennsylvania act of 1887 (P. L. 108) prohibited every sale of spirituous liquor without a license excepting certain designated sales. The Supreme Court of the United States held that this act applied to sales solely for industrial purposes and that it is primarily a prohibitory law and not in conflict with the amendment or any provision of the Volstead Act, but appropriate legislation which the state supplies in aid of the Eighteenth Amendment. Vigliotti v. Pennsylvania, 258 U.S. 403, 42 Sup.Ct. 330, 66 L.Ed. 686; State v. Gauthier, 121 Me. 522, 118 A. 380, 26 A.L.R. 652. It has been held in all the jurisdictions where the question has arisen that the state statute may be more stringent in its provisions and penalties than the Volstead Act. State v. Hosmer, 144 Minn. 342, 175 N.W. 683; Ex parte Polizzotto, 188 Cal. 410, 205 P. 676; O'Neil v. Demers, 44 R.I. 504, 118 A. 677.

The jury might reasonably have found beyond a reasonable doubt that Torello had no permit to transport intoxicating liquors. The trial court directed a verdict of not guilty, as to Torello, because of a variance between the information and the proof, and as to the other accused because in the opinion of the court there was no sufficient evidence to justify a finding of guilty beyond a reasonable doubt. The authority of the court to direct this verdict is found in chapter 267 of the Public Acts of 1921, which provides that--

" If in the opinion of the court the evidence is not sufficient to justify the finding of guilt beyond a reasonable doubt then the court may direct the jury...