State v. Verderamo
| Decision Date | 16 November 1915 |
| Citation | 29 Del. 72,96 A. 758 |
| Court | Court of General Sessions of Delaware |
| Parties | STATE v. GENEROSO VERDERAMO |
Court of General Sessions, New Castle County, November Term, 1915.
INDICTMENT for selling intoxicating liquor without a license, No. 47 November Term, 1915.
The indictment charged Generoso Verderamo, a licensee, with selling, on the twentieth day of April of the present year thirteen cases of lager beer to one Joseph Le Frieri (in quantity between four and five barrels) while his license authorized him to sell in quantities not less than three quarts nor greater than one barrel. Verdict of guilty.
Verdict of guilty.
Armon D. Chaytor, Jr., Deputy Attorney General, for the state.
Robert H. Richards and Leonard E. Wales for the accused.
OPINION
PENNEWILL, C. J. charging the jury:
Generoso Verderamo, the accused, is charged in the indictment with selling to one Joseph Le Frieri on the twentieth day of April of the present year, in this city, a quantity of lager beer greater than one barrel.
It is admitted that the defendant had a license to sell lager beer in quantities as great as a barrel but not greater. So that, before you can find him guilty you must be satisfied from the evidence beyond a reasonable doubt that he sold a greater quantity than a barrel. We decline to instruct you to find a verdict of not guilty as requested by accused's counsel, because, as he claims, there is no proof that the beer delivered to Le Frieri was lager beer. We think there is some testimony upon this point, but whether it is sufficient to establish the fact that it was lager beer is for the jury and not for the court to determine. Whether the contents of said bottles was lager beer is a material fact in the case, and must be proved to the satisfaction of the jury beyond a reasonable doubt, as every other material fact in the case must be proved, before the jury can find the accused guilty. This fact however, like any other material fact, may be proved by either direct or circumstantial evidence, but if proved by either character of evidence the proof must satisfy the jury beyond a reasonable doubt.
If you believe from the evidence beyond a reasonable doubt that the defendant did sell, as alleged in the indictment, lager beer, in a quantity greater than a barrel, your verdict should be guilty. If you do not so believe your verdict should be not guilty.
Verdict, guilty.
When the court was about to impose sentence, counsel for the accused asked that sentence be imposed under Section 19, Revised Code (1893) 415, providing for the payment of a fine only; and not under Section 12, Id. 419, providing for the payment of a fine, imprisonment, and, if a licensee, the forfeiture of the license. Attention was directed to the fact that the former section had not been re-enacted into the Revised Code of 1915, but it was urged that said section was still in force.
ARGUMENT FOR THE ACCUSED.
The question involved in the present discussion relates to the penalty to be imposed for the violation of a liquor merchant's license, authorized by the Act of April 19, 1909 (Chapter 125, Volume 25, Laws of Delaware, 230), which was an act to amend Chapter 418, Volume 14, Laws of Delaware, 392 (1873), entitled "An act regulating the sale of intoxicating liquors," Revised Code (1893), 415.
Prior to the adoption of the Revised Code of 1915, the penalty for violating the last mentioned act was provided for, as follows:
* * *"
The decision of this court, in State v. Mundy, 24 Del. 40, 1 Boyce 40, 74 A. 377, construing the application of this section, was in line with the practice previously observed by the court in imposing sentence for the violation of the act, where no other specific penalty was provided for.
The more recent case of Dennis v. State (28 Del. 298, 5 Boyce 298, 92 A. 853) 92 A. 853, in no way impairs the decision made in the Mundy case.
The Act of 1881, Chapter 384, Volume 16, Laws of Delaware, 421, is entitled "An act for the suppression of intemperance." It provides for no form of license whatever, and its sole purpose is indicated by its title. Section 12 thereof is as follows:
"Every violation of any provision of this act, or of any other act regulating the sale of intoxicating liquors, shall be a misdemeanor; and, upon conviction thereof, where no other specific penalty is herein provided, the offender shall pay a fine of one hundred dollars, and the costs of prosecution; and shall also be imprisoned not less than one nor more than six months; and, if a licensee, shall also forfeit his license."
This act is not supplemental to or amendatory of the Act of 1873.
Under the powers and authority conferred upon the code commissioners, by Chapter 253, Volume 25, Laws of Delaware, 556, they were required in no case, inter alia, "to omit, add to, amend, alter, change or vary the meaning of any existing law to be embraced in said work," and their authority to omit or reject anything was expressly limited (1) to acts not strictly of a general or public nature, (2) enactments that were redundant and had ceased to have any effect on existing rights and remedies, (3) superfluous words.
The legislature cannot delegate to code commissioners power to amend laws. Hicks v. Moyer, 10 Ga.App. 488, 73 S.E. 754, 756; State v. Gaunt, 13 Ore. 115, 9 P. 55.
The presumption is that the codifiers did not intend to change the laws as they formerly stood, and that the legislature intended to bring them forward, giving them the same effect which they formerly had. Braun v. State, 40 Tex. Crim. 236, 49 S.W. 620, 622; Land Co. v. Sullivan, 113 Minn. 27, 128 N.W. 1112, 1113, Ann. Cas. 1912A, 51; Bates v. Sullivan, 40 Tenn. (3 Head) 633; Sheafer v. Mitchell, 109 Tenn. 181, 71 S.W. 86, 93.
Inadvertent changes in a revision or codification of the laws has been held not to change the construction to be given to the consolidated act but it is to be construed the same as the original statutes. McDonald v. Hovey, 110 U.S. 619, 628, 4 S.Ct. 142, 28 L.Ed. 269; Logan v. U. S. 144 U.S. 263, 302, 12 S.Ct. 617, 36 L.Ed. 429; Sedgwick (2d Ed.) 229, note; Nicholson v. R. R. Co., 49 Ala. 205.
Where two penal statutes relate to the same subject and are directed against a distinct offense there can be no repugnancy and no repeal. Repeals by implication are never favored. 36 Cyc. 1095; Magruder v. State, 40 Ala. 347; Keiser v. State, 78 Ind. 430, 436, 437; Blaufield v. State, 103 Tenn. 593, 53 S.W. 1090.
It is presumed that the legislature is acquainted with the law; and that it is informed of previous legislation upon the same subject and with the construction it has received. Comm. v. Hartnett, 3 Gray (Mass.) 450, 453; Shelton v. Sears, 187 Mass. 455, 459, 73 N.E. 666; State v. Prouty, 115 Iowa 657, 84 N.W. 670, 671; Pattison v. Clingan, 93 Miss. 310, 47 So. 503, 505.
Separate statutes covering the same general subject, not inconsistent with or repugnant to each other, are to be so construed as to allow each to stand. Braun v. State, 40 Tex. Crim. 236, 49 S.W. 620, 621; State v. Miller, 140 Ind. 168, 171, 173, 39 N.E. 148, 664; Territory v. Digneo, 15 N.M. 157, 103 P. 975, 976; People v. Thompson, 161 Mich. 391, 126 N.W. 466, 467; People v. Gustin, 57 Mich. 407, 24 N.W. 156; Keiser v. State, 78 Ind. 430, 436, 437.
Prior to the adoption of the Revised Code of 1915, the Acts of 1873 and 1881 were never regarded as inconsistent with or repugnant to each other, but both had been construed, and given full force and effect. Preface, Revised Code of 1893; State v. Mundy, 24 Del. 40, 1 Boyce 40, 43, 44, 74 A. 377; Comm. v. Hartnett, 3 Gray (Mass.) 450, 453.
A statute in existence, in whole or in part, at the date of the adoption of the new code, but inadvertently omitted therefrom, is still in force, unless it is expressly or by necessary implication repealed. Hicks v. Moyer, 10 Ga.App. 488, 73 S.E. 754, 756; Farley v. State, 12 Ga.App. 643, 77 S.E. 1131; State v. Schmahl, 118 Minn. 319, 136 N.W. 870, 871; Greer v. State, 54 Miss. 378; In re Lis' Estate, 120 Minn. 122, 139 N.W. 300, 302, 303.
An unintentional omission in printing a revision does not effect a repeal of the omitted section. Flower v. Griffith, 6 Mart. N. S. (La.) 89.
The language of the repealing act does not necessarily effect a repeal. State v. Wimpfheimer, 69 N.H. 166, 171, 38 A. 786; Braun v. State, 40 Tex. Crim. 236, 49 S.W. 620, 622; Clark v. State, 171 Ind. 104, 107, 84 N.E. 984, 16 Ann. Cas. 1229; Smith v. People, 47 N.Y. 330, 339; State v. Moorhouse, 5 N.D. 406, 67 N.W. 140, 143; State v. Prouty, 115 Iowa 657, 84 N.W. 670-672.
Penal statutes must be strictly construed. Questions of doubt are to be resolved in favor of those accused. State v. Ins. Co., 141 Wis. 557, 124 N.W. 502, 505; St. Louis Merchants' Bridge Terminal R. Co. v. U. S., 188 F. 191, 193, 110 C. C. A. 63.
It is inconceivable that the holder of a liquor merchant's license, if convicted for selling in a quantity above or below the license limit should forfeit such license and suffer imprisonment in addition to paying a fine of one hundred dollars, while a saloon licensee may sell on Sunday, or sell to a minor, insane person or habitual drunkard, and when convicted for the first time, pay a fine of from fifty to one hundred dollars with no jail penalty even upon a second conviction for such offenses.
For the state it was contended in reply, that...
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