State v. Tygaets Valley Brewing Co.
| Decision Date | 10 June 1912 |
| Citation | 71 W.Va. 38 |
| Court | West Virginia Supreme Court |
| Parties | State v. Tygaets Valley Brewing Co. |
1. Intoxicating Liquor Illegal Sale Burden of Proof.
On an indictment for unlawfully selling spirituous liquors without a state license therefor, it is not incumbent on the state to prove that defendant had no license to sell. If a sale be proven, it is presumed to have been made without license, and, to justify it, defendant must produce his license. (p. 39).
2. Same Li censes Sales at Brewery.
License to carry on a brewery in a place where no license to sell intoxicating liquors can be lawfully granted, does not authorize a sale of beer at wholesale at the brewery. (p. 39). (Brannon, President, dissents.)
Error to Circuit Court, Taylor County.
The Tygarts Valley Brewing Company was convicted of an illegal sale of beer without a license, and brings error.
Affirmed.
F. T. Martin, for plaintiff in error.
William G. Conley, Attorney General, and J. 0. TIenson, Assistant Attorney General, for the State.
The Tygarts Valley Brewing Company was convicted of making an unlawful sale of beer, in wholesale quantity, without a state license therefor, in September, 1909, in the city of Grafton, Taylor county, and brings error.
The state established a prima facie case by proving that defendant made a sale of eight gallons of beer, at its brewery, in the city of Grafton. It was then incumbent upon defendant to prove that the sale was lawful by proving that it had a license which authorized the sale. This is an exception to the general rule of evidence which requires the state to prove every material allegation of the indictment, and is founded on the inconvenience of proving a negative. If defendant wishes to justify the sale, it is easy for him to produce his license, if he has it; it is a matter peculiarly within his own knowledge. The exception to the rule rests on the convenience with which defendant can produce his evidence, and the inconvenience of requiring the state to prove that defendant did not have a license. 1 Greenl. Ev. (16th ed.), sec. 29; 4 Wigmore Ev., sec. 2512, and note 4; 2 Woolen & Thornton on Intoxicating Liquors, sec. 947.
The charter of the city of Grafton confers upon its council the power to grant or refuse license to sell intoxicating liquors in the city; and, if it grants a city license to sell intoxicating liquors, the county court is also obliged, by the statute, to grant a state license for the sale thereof within the city. But the authority of the city council to grant the license is subject to the following qualification: The sense of the voters must be taken at every alternate city election respecting the granting of license; and, unless a majority of the votes for and against the same be cast in favor of license, the council shall not grant license. Sec. 28, eh. 44, Acts 1899. At the city election next preceding the indictment a majority of the votes were cast against license. Hence the city council had no power to grant license to sell intoxicating liquor within the license year beginning July 1, 1909, the year in which the sale in this case was made.
The council not having granted license to sell intoxicating liquors, and, in fact, having no power to do so if it had so desired, the county court could not grant a state license to sell within the city. Sec. 10, ch. 82, Acts 1907, amending and reenacting sec. 10, ch. 32, Code 1906.
But defendant had a license from both the city council and the county court of Taylor county, to carry on the business of a brewer in the city of Grafton, and the case presents this question: Did such brewer's license confer upon defendant the right to sell beer, in wholesale quantities, at its brewery? The answer to the question depends upon the construction of sec. 74, ch. 32, Code 1906, as modified by ch. 82, Acts 1907. As so modified, that section reads as follows, viz:
"The license for carrying on a distillery shall authorize the holder thereof to sell the product of such distillery at wholesale at the distillery, but shall not authorize any such holder to sell such product at retail at any place; and the shipment or delivery of any such product from any place of storage other than the distillery shall be deemed a sale without license at the place of such shipment, or delivery, unless a license to sell at wholesale at that place has been obtained under this chapter and shall be in force; but a license to carry on a brewery shall authorize the holder thereof to solicit and receive orders for, sell, offer and expose for sale the product of such brewery at wholesale only, in any and all of the counties and cities, towns and villages of this state without additional tax; provided, the county court first authorize such a sale by a certificate duly entered of record which shall designaie the places of said sales; except in those counties where the county court or other license tribunal does not grant license to sell intoxicating liquors, and except also in cities, towns and villages where the council or other license tribunal does not grant license to sell intoxicating liquors; no city, town or village shall impose on the holder of a state license to carry on a brewery any municipal license tax, unless he maintains a store house or place of business therein, and such municipal license tax shall not exceed two and one-half cents per barrel on the sales...
To continue reading
Request your trial