State v. Tygarts Valley Brewing Co

• Court: Supreme Court of West Virginia
• Writing for the Court: WILLIAMS
• Citation: 75 S.E. 149,71 W.Va. 38
• Decision Date: 10 June 1912
• Parties: STATE . v. TYGARTS VALLEY BREWING CO.

75 S.E. 149
(71 W.Va. 38)

STATE .
v.
TYGARTS VALLEY BREWING CO.

Supreme Court of Appeals of West Virginia.

June 10, 1912.

[75 S.E. 149](Syllabus by the Court.)

1. Intoxicating Liquors (§ 224^*)—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.

[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. §§ 275-281; Dec. Dig. § 224.*]

2. Intoxicating Liquors (§ 148*)—Licenses —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.

[Ed. Note.—For other cases, see Intoxicating Liquors, Dec. Dig. § 148.*]

Brannon, J., dissenting.

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, Atty. Gen., and J. O. Hen-son, Asst. Atty. Gen., for the State.

WILLIAMS, J. 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. Evi. (16th Ed.) § 29; 4 Wigmore, Evi. § 2512, and note 4; 2 Woollen & Thornton on Intoxicating Liquors, § 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. Section 28, c. 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. Section 10, c. 82, Acts 1907 (Code Supp. 1909, c. 32, § 10), amending and re-enacting section 10, c. 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?...