r
JMIZIL
19*0
THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
Gift of
binder -Moss Co.
LIQUOR PROHIBITION
BY
ARCHIBALD DOUGLAS DABNEY, B. L.
'M
Judge of the Corporation Court, Charlottesville, Virginia ; formerly Commonwealth's
Attorney, United States Commissioner, and a member of the Editorial
Staff of The Michie Company, Law Publishers
The Michie Company, Law Publishers
Charlottesville, Virginia
1920
COPYRIGHT, 1920
BY
THE MICHIE COMPANY
T
PREFACE.
This book is not a treatise on the Prohibition of Intoxicating
Liquors, but a mere collation of the decisions construing swch
statutes.
It is intended to arrange these decisions in as logical a man-
ner as possible with reference to the various provisions of the
National Prohibition Act, and to so digest them as to give a
ready reference to the reported cases.
In the endeavor to finish the book as quickly as possible after
the law became effective, most valuable assistance was given
by Mr. James F. Minor, author of Minor on Workmen's Com-
pensation Laws, and by Mr. Homer Ritchey, author of Ritchey
on Federal Employers' Liability Act, both of the Charlottes-
ville, Virginia bar, to each of whom grateful appreciation is
given.
A. D. DABNEY.
67OK87
Table of Cases Cited
Aaron v. State, 18 Ariz. 378, 161 Pac. 881 121, 336, 339
Abbott v. State, 11 Ga. App. 43, 74 S. E. 621 87, 410, 458
Acme Brewing Co., v 91 175
Adams Exp., Commonwealth v 154
Adams Exp. Co. v. Commonwealth, 154 Ky. 462, 157 S. E. 908,
48 L. R. A., N. S., 3'42 118
Adams Exp. Co. v. Commonwealth, 160 Ky. 66, 169 S. W. 603
130 155
Adams Exp. Co. v. Commonwealth, 174 Ky. 296, 192 S. W
56 313
Adams Exp. Co. v. Commonwealth, 177 Ky. 159, 197 S. W. 630 380
Adams Exp. Co. v. Commonwealth, 177 Ky. 449, 197 S. W.
957 239, 452
Adams Exp. Co. v. Commonwealth, 178 Ky. 59, 198 S. W. 556.
351, 3«1
Adams Exp. Co. v. Commonwealth, 182 Ky. 748, 207 S. W.
482, 483 284
Adams Exp. Co. v. New York, 232 U. S. 14, 30, 34 Sup. Ct. 203,
58 L. Ed. 483 90
Adams Exp. Co. v. Young, 184 Ky. 49, 211 S. W. 407 330
Advertiser Co. v. State, 193' Ala. 418, 69 So. 501 162
Advertiser Co., State v 164
Agalos, State v 86, 212, 355
Ahart, Ex parte 138, 239
Ahern, Commonwealth v 447
Ah Sin r. Wittman, 198 U. S. 500, 504, 25 Sup. Ct. 756, 49 L.
Ed. 1142, 1144 61
Alderete, Ex parte 196
Alderman, State v 120 326
Alexander v. State (Tex. Cr. App.), 204 S. W. 644, 645 113,
260, 313', 327, 415
Allen, People v 327 351, 411
Allen, State v 275
Allison v. Hern, 102 Kan. 48, 169 Pac. 187 229
Allison v. State, 1 Ala. App. 206, 55 So. 453 288, 356, 398, 403, 407
Allison v. State (S. D.), 167 N. W. 402 252
Allston, State v 122
Alton r. Salley (Mo.), 215 S. W. 241 173, 459
vi TABLE OF CASES CITED
American Exp. Co. v. Commonwealth, 171 Ky. 1, 186 S. W.
887 124, 138, 161, 400
Amonett v. State (Tex. Cr. App.), 204 S. W. 438.. 3O6, 360,
361, 375, 456, 460
Andalousia, Flagin v 86, 413
Anderson v. Daugherty, 137 Tenn. (10 Thompson) 125, 191 S.
W. 974 196
Anderson, Dutton v 176, 193
Anderson v. Fant (S. C.)r 79 S. E. 640.. 641 97
Anderson, Legg v 193
Anderson, McMillan v 448
Anderson v. State, 20 Ga. App. 747, 93 S. E. 237 S'64
Anderson v. State, 109 Miss. 521, 68 So. 770 114
Argo, People v 374
Armington & Sons v. State (Ga. App.), 100 S. E. 15 228, 459
Arsenault, State v 238, 241, 283
Atchison, etc., R. Co. v. Danciger v 233
Atchison, etc., R. Co., De Hasque v 141
Atlanta, Lumpkin v 88, 344
Atlanta, Pitts v 444
Atlanta, Shaw v 435
Atlantic Coast Line R. Co., Greer Drug Co 81
Atwell, Gunn v 231
Atwood, Green v 73, 74
Atwood, State v 317
Augusta, Du Vail v 344
Autrey v. State (Ga. App.), 99 S. E. 389 322, 325, 359,440
Autrey v. State, 18 Ga. App. 13, 88 S. E. 715 446
Avicolli, State v 397
B
Babbitts. Corrigan, 157 la. 382, 138 N. W. 466 186
Baca v. State, 18 Ariz. 350, j.61 Pac. 686 277, 452
Bachtold, State v 244, 449
Bacot v. State, 94 Miss. 225, 48 So. 228, 21 L. R. A., N. S.,
524n 377
Bailey, State v 343, 347
Bain v. State, 76 Tex. Cr. App. 519, 176 S. W. 563 114
Baldwin, State v 286, 289, 290, 291, 329, 378, 392, 445
Balfe v. People (Colo.), 179 Pac. 137 205, 206, 238, 245, 378
Baltimore, etc., R. Co., State v 173, 179, 184
Banks v. State (Ind.), 123 N. E. 691 133
Barber v. Buonanni Co., 179 la. 642, 161 N. W. 688, 689..... 189, 433
Barber v. City Drug Store, <17S la. 651, 155 N. W. 992.. 190, 191, 194
Barber v. Dapolonia (Ga.), 171 N W. 586 187
Barbour v. Georgia, 249 U. S. 454, 39 Sup. Ct. 316 63
TABLE OF CASES CITED vii
Barbour v. State, 146 Ga. 667, 668, 92 S. E. 70 131
Barbour v. State (Ga. App.), ;99 S. E. 782 299, 300, 309, 329
Bare v. Commonwealth, 122 Va. 783, 94 S. E. 168, 169.. 304, 3'40, 411
Barksdale v. State '(Ga. App.), 100 S. E. 771 325
Barnhill v. State, 74 Tex. Cr. App. 97, 167 S. W. 348 454
Barr, State v 85, 364, 379
Bartemeyer v. Iowa, 18 Wall. 29, 21 L. Ed. 929 60, 62, 63
Bartow, State v E41, 249
Bass Pub. Co., State v 96, 164
Bates, State v 239
Batten v. Smarley, 168 la. 362, 150 N. W. 583 188
Battle v. State, 6 Ga. App. 578, 65 S. E. 333 139
Baumgartner v. State (Ariz.), 178 Pac. 50 115, 302, 354, 363, 462
Baumgartner, United State v 75, 85, 89, 270
Baxter v. Chattanooga Brewing Co. (Ala.), 82 So. 16 117
Beaty v. State, 7 Ga. App. 327, 66 S. E. 808 387
Becker, State v 265
Beer Co. v. Massachusetts, 97 U. S. 25, 33, 24 L,. Ed. 989 60, 63
Begley v. Commonwealth, 176 Ky. 796, 197 S. W. 448 353
Beiser v. State, 9 Ala. App. 72, 63 So. 685 137
Belchner v. State (Okla. Cr. App.), 183 Pac. 925 445
Belden & Co. v. Leisy Brewing Co., 161 C. C. A. 420, 249
Fed. 462 104
Bell, People v 146
Belton, Felia v 233
Benevolent and Protective Order of Elks, Davidson v 189, 192
Benjamin v. Montgomery (Ala. App.), 81 So. 145 356
Benton, Hathaway v 174, 175, 177
Benton v. State, 9 Ga. App. 422, 71 S. E. 498 343
Berger, State v 240
Berner -v. McHenry, 169 La. 483, 151 N. W. 450 152
Berry v. State (Tex. Cr. App.), 203' S. W. 901 371, 416, 417
Berryman v. United States (C. C. A.), 259 Fed. 208 129, 453
Biandi v. United States (C. C. A.), 259 Fed. 93 399, 400
Biegelow, Marston v 348
Billingsley v. State, 4 Okla. Cr. App. 597, 113' Pac. 241 382
Billinggsey, State v 306, 378, 389, 408, 426
Bird v. Sears (la), 173 N. W. 925 oSO, 449, 454
Bird v. State (Tex. Cr. App.), 206 S. W. 844.. 240, 306, 367,
368, 369, 441 457
Birmingham, Borok v 428
Birmingham, Flowers v 324, 327, 418, 419,426
Bishop v. State, 18 Ga. App. 714, 90 S. E. -369 328, 383, 384
Bishop v. United States (C. C. A.), 259 Fed. 195 127, 362, 380, 451
Black v. Delaye, 193 vAla. 500, 68 So. 99, L. R. A. 1915E, 640.
60, 62, 65, 163, 185
viii TABLE OF CASES CITED
Black v. Southern Exp. Co. (Ala.), 75 So. 343 66
Black v. State, 75 Neb. 603, 106 N. W. 787 197
Blackburn v. State, 79 Tex. Cr. App. 446, 385 S. W. 581 102, 110
Blackman v. United States, 162 C. C. A. 519, 520 Fed. 449 323
Blackwell, State v 33'4
Blair v. 'Commonwealth, 122 Va. 798, 94 S. E. 185 263
Blakely, Sawyer v 448
Blauntic, State v 203, 419, 421
Bledsoe v. Jackson, 16 Ga. App. 479, 85 S. E. 676 436
Bloodworth v. Milledgeville, 12 Ga. App. 560, 79 S. E. 131 391
Bluthenthal v. Kennedy, 165 N. C. 372, 81 S. E. 337 73
Bodecker, State v 265
Bondurant v. State, 14 Okla. Cr. App. 3«8, 171 Pac. 488 378
Bonner v. State, 2 Ga. App. 711, 58 S. E. 1123 396
Boos v. State, 181 Ind. 562, 105 N. E. 117 108
Booth v. Illinois, 184 U. S. 425, 22 Sup. Ct. 425, 46 L. Ed. 623.. 61
Borders v. Macon, 18 Ga. App. 333, 89 S. E. 451 392, 419, 420, 421
Borok v. Birmingham, 191 Ala. 75, 67 So. 389, Ann Cas.
1916C 1061 428
Bossingham, State v 174
Bowers v. Maas, 154 la. 640, 135 N. W. 25 183, 186, 335
Boynton, State v 304, 383', 403
Bracy v. Commonwealth, 119 Va. 867, 89 S. E. 144 281, 411
Braden v. State (Okla. Cr. App.), 181 Pac. 736 325
Bradford, State v 239
Bradley, State v 132, 3'42, 3"43, 844, 425
Bradley v. United States (C. €. A.), 254 Fed. 289 451
Bragg v. State, 15 Ga. App. 623, 630, 84 S. E. 82 419, 455
Bragg v. State (Ga. App.), 99 S. E. 310 109
Brantley v. State, 107 Miss. 466, 65 So. 512 114
Brantly v. State, 91 Ala. 17, 8 So. 816 413
Braxton v. State (Ala. App.), 82 So. 657 373,443
Bray v. Commerce, 5 Ga. App. 605, 63 S. E. 596 347, 348, 456
Brenneman, Northern, etc., Co. v 221
Bridgeforth v. State (Ala. App.), 77 So. 77 389
Bridgeforth v. State, 15 Ala. App. 502, 74 So. 402 112
Brigman v. State, 8 Ala. App. 400, 62 So. 980 391, 419, 458
Brittain v. State (Civ. Cr. App.), 214 S. W. 351 271
Brokhaus v. State, 11 Okla. Cr. App. 625, 150 Pac. 510 396
Bronanni Co., Barber v 43'3
Brookins, Seattle v 390
Brooks v. State, 19 Ga. App. 3, 90 S. E. 989.. 205, 293, 301, 302,
303, 413
Brooks v. State, 19 Ga. App. 45, 90 S. E. 971 299
Browder v. State (Okla. Cr. App.), 180 Pac. 571 453
Brown, Herbring v 59
TABLE OF CASES CITED ix
Brown v. State (Ala. App.), 81 So. 366 132
Brown v. State, 17 Ariz. 314, 152 Pac. 518 74, 82, 91, 140
Brown v. State, 8 Ga. App. 691, 70 S. E. 40 273
Brown, State v 266
Browning, Zamata v 69
Buchanan, Cheatwood v 347
Buckman, State v 146
Bucks Stove Co., Gompers v 197
Bullard v. United States, 158 C. C. A. 177, 254 Fed. 837.. 297, 305, 315
Bullock, People v 133', 377
Bundy v. State (Okla. Cr. App.), 184 Pac. 795 273, 329, 407
Bunker, State v 33'4 342
Buonanni Co., Barber -v 189
Burchfield, State v 116
Burgan i: State (Ga. App.), 99 S. E. 636 224, 230, 279, 329
Burnham, Cox v 96
Burr, National Mason Acci. Ass'n v 3'48
Burton v. Commonwealth, 122 Va. 847, 94 S. E. 923 72, 277, 314
Burton v. State (Ark.), 206 S. W. 51 125, 126
Busick, State v 115, 268, 403, 404
Butler v. State, 12 Okla. Cr. App. 530, 159 Pac. 1090 3'41
Butler, State v 292, 319, 323, S36, 382, 401, 402, 449, 453
Butler v. Washington, 11 Ga. App. 133, 74 S. E. 858 431
Butterfield v. United States, 154 C. C. A. 332, 241 Fed. 556 65
C
Caffee v. State, 11 Okla. Cr. App. 485, 148 Pac. 680 334, 336, 337
Caffini v. Hermann, 112 Me. 282, 91 Atl. 1009 209, 279
Cage v. State, 11 Ga. App. 318, 75 S. E. 160 431, 440
Cagle v. State, 106 Miss. 370, 63 So. 672 458
Calhoun v. State, 144 Ga. 679, 87 S. E. 893 388
California, Murphy v 61
Calliari, People v 322, 397
Campbell, Crane v 60, 61, 214
Campbell v. State (Ala. App.), 78 So. 715 334, 429
Campbell v. Thomasville, 6 Ga. App. 212, <«4 S. E. 815 87
Canales v. State (Tex. Cr. App.), 215 S. W. 964 375, 431
Cannington v. State, 14 Ga. App. 814, 82 S. E. 356 456
Canode, Cartwright v 212
Cardwell, State v 104, 287, 362
Carl v. State, 87 Ala. 17, 6 So. 118, 4 L. R. A. 380 413
Carleton v. State, 129 Ark. 361, 196 S. W. 124 345
Carmichael -v. State, 11 Ala. App. 209, 65 So. 694 447
Carrico v. State (Okla. Cr. App.), 180 Pac. 870 452
Carson v. State, 3 Ala. App. 206, 58 So. 88 96, 366, 459
Carswell v. State, 7 Ga. App. 198, 66 S. E. 488 84, 435
x TABLE OF CASES CITED
Carter v. Commonwealth, 123 Va. 810, 96 S. E. 766.... 315, 334, 335
Carter v. State, 68 Ga. 96 264
Carter v. State, 21 Ga. App. 493', 94 S. E. 630 438
Cartwright v. Canode, 106 Tex. 502, 171 S. W. 696 212
Cartey v. State, 135 Ark. 169, 204 S. W. 207 280
Cashin v. State, 18 Ga. App. 87, 88 S. E. 996 243
Caskey, State v 386
Cassidy v. Howard, 140 Ga. 844, 80 S. E. 1 192
Cassidy v. State, 10 Ga. App. 123, 72 S. E. 939 281
Castle v. Lewis (C. C. A.), 254 Fed. 917, 918 280, 337, 452
Cathey, State v 208, 401
Cedarto wn, Morgan v 347
Centennial Brewing Co., State v 80, 83, 87, 93
Cerecedo Hermanos y. Compania, United States v 90
Ceresa, State v 397, 398
Certain Appurtenance Used in Sale of Intoxicating Liquors,
State v 219
Certain Intoxicating Liquors, State v 71, 13'6, 217,228
Chambeilain, State v 147
Chance v. State (Tex. Cr. App.), 210 S. W. 208, 209 296, 305
Charles Blum Co., Christopher v 107
Chatanooga Brewing Co., Baxter v 117
Cheatwood v. Buchanan, 9 Ga. App. 828, 72 S. E. 284 347
Cheek v. State, 3' Ala. App. 646, 57 So. 108 210, 400, 429
Cheek v. State, 14 Ala. App. 44, 70 So. 990 428
Chicago, etc., R. Co. v. Lake County, etc., Sav. Co., 186 Ind.
358, 362, 114 N. E. 454 432
Chicago, etc., R. Co., State v 174
Chicco, State v 183
Christensen, Crowley v 60, 62
Christopher v. Charles Blum Co. (Fla.), 82 So. 765 107
Chronister v. State (Ark.), 215 S. W 634 250, 288
Cihok v United States, 146 C. C. A. 509, 232 Fed. 551 414
Cipra, State v 172
City Club, Lyon -v 88
City Drug Store, Barber v 190, 191, 194
Civic Improv. v. Hanson, 181 la. 327, 164 N. W. 752 175
Clancy, State v 235
Clark v. Norfolk, etc., R. Co. (W. Va.), 100 S. E. 480 208
Clark v. State, 5 Ga. App. 605, 63 S. E. 606 415
Clark v. State, 74 Tex. Cr. App. 464, 169 S. W. 895 419, 421
Clark, State v 3'45, 414, 455
Clark Distilling Co. v. Western Maryland R. Co., 242 U. S.
311, 321, 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A. 1917B,
1218n, Ann. Cas. 1917B, 845 60, 61, 65, 68, 464, 465
Claunch v. State (Tex. Cr. App.), 203' S. W. 981 66, 93
TABLE OP CASES CITED xi
Clifford, State v 324
Clopton v. Commonwealth, 190 Va. 831, 63 S. E. 1022 259, 264, 2731
Coates v. State, 5 Ala. App. 182, 59 So. 323 419 420, 461
Coates v. State (Tex. Cr. App.), 215 S. W. 856 85, 329, 355
Cochran v. Commonwealth, 122 Va. 801, 94 S. E. 329.. 140, 248,
314, 425, 448
Cochran v. State (Ala. App.), 82 So. 560 99
Cockran v. State (Ala.), 82 So. 560 237
Cohen v. State, 7 Ga. App. 5, 65 S. E. 1096 281
Cole v. State, 120 Ga. 485, 48 S E. 156 387, 393, 396
Cole v. State (Okla. Cr. App.), 180 Pac. 713 245, 254
Coleman v. State, 7 Ala. App. 424, 61 So. 20 210, 211
Coleman v. State, 74 Tex. Cr. App. 36, 166 S. W. 164 103
Collins v. Commonwealth, 123' Ga. 815, 96 S. E. 826.. 319, 328, 457
Collins, Lofton v 193
Collins v. Milledgeville, 17 Ga. App. 817, 88 S. E. 716 360
Collins, United States v 99, 126, 128, 129
Collotta v. State, 110 Miss. 448, 70 So. 460 175
Combs v. Commonwealth, 162 Ky. 86, 172 S. W. 101 134, 204
Combs v. Commonwealth, 171 Ky. 231 188 S. W. 326 427
Commerce, Bray v 347, 348, 456
Commonwealth v. Adams Exp., 179 Ky. 394, 200 S. W. 648.. 155
Commonwealth, Adams Exp. Co. v 118, 130, 155, 239, 284,
313', 351, 361, 380, 452
Commonwealth v. Ahern, 228 Mass. 547, 117 N. E. 827 447
Commonwealth, American Exp. Co. v 124, 138, 161, 400
Commonwealth, Bare v 204, 340, 411
Commonwealth, Begley v 353
Commonwealth, Blair v 263
Commonwealth, Bracy v 281, 411
Commonwealth, Burton v 72, 277, 314
Commonwealth, Carter v 315, 334, 335
Commonwealth, Clopton v 259, 264, 273
Commonwealth, Cochran v 140, 248, 314, 425, 448
Commonwealth, Collins v 319, 328, 457
Commonwealth, Combs v 134, 204, 427
Commonwealth, Elkhorn Min. Corp. v 117
Commonwealth, Fletcher v 265
Commonwealth, Frey v 209, 313, 355, 397
Commonwealth, Fugate v 425
Commonwealth r. Gardner, 7 Gray (Miss.), 494, 497 357
Commonwealth, Goodman v 138
Commonwealth v. Goodwin, 109 Va. 828, 64 S. E. 54 93
Commonwealth, Hoskins v 203', 345
Commonwealth, Huddleston v 104, 300, 454
Commonwealth, Kennan v 263
xii TABLE OF CASES CITED
Commonwealth, Lane v 246> 335
Commonwealth, Lemon -u 375, 389, 433
Commonwealth v. Louisville, etc., R. Co. (Ky.), Ho S. W. 938.
277
Commonwealth, Lucchesi v '65, 382
Commonwealth, Martin <v 1 2?> 130
Commonwealth, Mullins v 83', 262, 268, 363
Commonwealth, Neal v 336, 337, 338, 339
Commonwealth, O'Donnell v 107, 237, 366, 377
Commonwealth, Pettus v 132
Commonwealth, Pine v 64, 204, 238, 252, 288, 300, ?11,
312, 336, 368, 457
Commonwealth, Robinson v 280, 302, 359
Commonwealth v. Robinson-Pettet Co.. 181 Ky. 702, 205 S. W.
774 298, 3'5S
Commonwealth v. Ruh, 173 Ky. 771, 191 S. W. 498, L. R. A.
1917D, 283 174, 175
Commonwealth, Rush v 193
Commonwealth, Shiflett v 262
Commonwealth, Sickel v 98, 127, 247, 249, 258, 465
Commonwealth v. Southern Exp. Co., 128 Ky. 132, 206 S. W.
167 154
Commonwealth, Southern Exp. Co. v 240
Commonwealth v. Stone (Ky.), 176 S. W. 1138 107
Commonwealth v. Fay, 146 Mass. 146, 15 N. E. 503' 447
Commonwealth v. Thayer, 49 Mass. (8 Mete.) 525, 526 441
Commonwealth, Tomlin v 314
Commonwealth v. White (Ky.), 179 S. E. 469 118
Commonwealth, Wilkerson v 244
Commonwealth, Wilson v 342, 419, 447
Commonwealth v. Wood, 4 Gray (Mass.), 11 357
Commonwealth, Woods v 432
Compton, State v 312
Condit v. State, 130 Ark. 341, 197 S. W. 579 113, 309, 434
Conley v. State (Okla. Cr. App.), 179 Pac. 480 265, 336, 382, 449
Conner, State v 445
Cook v. State, 124 Ga. 653, 53 S. E. 104 106
Cook Brewing Co., Schmitt v 62, 63', 67, 80, 144
Cool, State v 414
Cooper v. Ft. Valley, 13 Ga. App. 169, 78 S. E. 1097 347, 448
Cooper v. Gadsden, 10 Ga. App. 609, 65 So. 715 383, 385,
Cooper v. State, 19 Ariz. 486, 172 Pac. 276 90, 140, 151, 3'46,
351, 354
Cooper, State v 257
Corley v. State (Ga. App.), 98 S. E. 401, 402 255
Cornell, Orr v 198, 199
TABLE OF CASES CITED xiii
Correlis v. State (Fla.), 82 So. 601 70
Corrigan, Babbitt v 186
Country Club r. State (Tex.), 214 S. W. 296 134, 180
Country Club, State v 137
Coverdale, State v 92, 345, 346, 380
Cowart v. State, 14 Ga. App. 763, 82 S. E. 3131 347, 348
Cowart v. State, 18 Ga. App. 677, 90 S. E. 286 441
Cowart v. Young, 74 Ga. 694 224
Cowles, Everett v 430
Cowley v. State, 72 Tex. Cr. App. 173, 161 S. W. 471 296
Cox v. Burnham, 120 la. 43, 94 N. W. 265 96
Cox, Ohio v 57, 58
Cox v. State (Okla.), 160 Pac. 895 226
Ccx, State v 139, 354, 355
Craig, People v 96
Craig v. State, 9 Ga. App. 233, 70 S. E. 974 387, 393
Crane v. Campbell, 245 U. S. 304, 38 Sup. Ct. 98, 62 L. Ed.
304 60, 61, 214
Crane, In re 62
Crapp v. State (Ga. App.), 98 S. E. 174 221
Cravey v. State, 10 Ala. App. 168, 64 So. 756 383
Crawley v. State (Ala. App.), 73 So. 222, 223 110
Crider, State v 263
Cripe v. State, 4 Ga. App. 832, 62 S. E 567 88, 344
Cross, Rosenoff v 145
Crowley i: Christensen, 137 U. S. 86, 91, 11 Sup. Ct. 13, 34 L.
Ed. 620 60, 62
Cumberland, State v 179
Gumming v. Funkenstein Co. (Ala. App.), 81 So. 343 356
Cunningham v. State (Ala. App.), 75 So. 816 252
Cureton v. State, 135 Ga. 660, 70 S. E. 332, 49 L. R. A., N.
S., 182n 62, 131
Curry v. State, 117 Md. 587, 831 Atl. 1030 245, 358, 403, 405
Curtwright, State v 266
D
Dalton v. State (Ga. App.), 100 S. E. 781 325
D'Amico v. State (Del.), 102 Atl. 78 102, 383, 384
Danciger v. Atchison, etc., R. Co. (Mo.), 212 S. W. 5 233
Danciger, Missouri, etc., R. Co. v 1231
Dann, People v 350
Dantzler v. State, 104 Miss. 233, 61 So. 305 105
Dapolonici, Barber v 187
Darneal v. State (Okla. Cr. App.), 171 Pac. 737 102
Daugherty, Anderson v 196
xiv TABLE OF CASES CITED
Davidson v. Benevolent & Protective Order of Elks, No. 374,
174 la. 1, 156 N. W. 187 189, 192
Davis, Ex parte 60, 64, 72
Davis v. State (Ga. App.), 100 S. E. 782 133, 440
Davis v. State, 100 Ind. 154 253
Davis v. State (Okla. Cr. App.), 182 Pac. 908 445
Davis, State v €2, 148, 149, 150, 151, 163', 218, 220,
226, 227, 261, 265, 352
Davis, Wachal v 148
Deal v. State, 14 Ga. App. 121, 80 S. E. 537, 541 102, 106, 135, 444
Dean v. State, 13O Ark. 322, 197 S. W. 684. .113, 264, 365, 383, 384, 461
IJeck, McConathy v 225
Decker, State v. . . : 165
Dees v. State (Ala. App.), 75 So. 645 91, 252, 333
De Hasque v. Atchison, etc., R. Co. (Okla.), 173 Pac. 73 141
Delaney v. Plunkett, 146 Ga. 547, 91 S. E. 561, L. R. A. 1917D,
996, Ann. Cas. 1917E, 685 62, 131, 235
Delaye, Black v 60, 62, 65, 163, 185
De Moss v. United States, 162 C. C. A. 259, 250 Fed. 87 67, 381
Dent v. State, 14 Ga. App. 269, 80 S. E. 548 344
Denton, State v 63, 110, 111, 202, 455
Dereiko, State v 271, 308, 376
Dick And Bros. Quincy Brewing Co., State v 176
Dillon v. Saleeby (S. C.), 18 S. E. 123 69
Dinkins v. State, 149 Ala. 49, 43 So. 114 65
District Court, Nies v 193, 194, 195, 197, 198, 199, 200,
334, 377, 393
District Court, Rust v 199
District Court, State v 197, 198, 200
District Court Wells v 197
Dollison, Loyd v 143
Donaldson v. State, 3 Ga. App. 451, 60 S. E. 115 92, 3'65, 441
Dononvan v. State, 170 Ind. 470, 99 N. E. 786 256
Donovan, State -v 72
Doremus, State v 209
Dorah, Newberry v 131
Doss v. State, 7 Ala App. 121, €1 So. 748 458
Dosset v. United States, 161 C. C. A. 20, 248 Fed. 902 278, 294, 300
Dou'blin v. State, 15 Ala. App. 527, 74 So. 86 318
Doucet, State v, 246, 357
Dozier v. State, 14 Ga. App. 473, 81 S. E. 368 318
Duff, State v 247, 267, 268, 282
Duluth, Sponnick v 230
Dunbar v. State, 21 Ga. App. 502, 94 S. E. 587 319, 320
Duncan v. State (Ga.), 99 S. E. 612 229
Duncan v. State, 100 S. E. 38 229
TABLE OP CASES CITED xv
Dunn v. State, 8 Ala. App. 382, 62 So. 379 341, 421
Dunn v. State, 8 Ala. App. 410, 62 So. 996 301
Dunn v. State, 18 Ga. App. 95, 89 S. E. 170 419, 420
Dunn, State v 267
Durein, State v 62
Duren v. State, 21 Ga. App. 524, 94 S. E. 902 314
Durr, State v 417, 436
Dutton v. Anderson (Ala), 145 N. W. 321 176, 193
Du Vail v. Augusta, 115 Ga. 813, 42 S. E. 265 344
E
Earp v. State (Ariz.), 184 Pac. 942 245,265
Eastman, Simpson v 3'47, 348
Eberle v. Michigan, 232 U. S. 700, 34 Sup. Ct. 464 60, 144
Echols v. State (Ala.), 75 So. 814 255, 278
Eden, State v 207
Edenfield v. State, 14 Ga. App. 401, 81 S. E. 253 461
Edmunds v. State (Ala. App.), 81 So. 847 373
Edwards v. State (Ark.), 213' S. W. 11 98, 125
Elder v. State, 162 Ala. 41, 50 So. 370 66
Elder Harrison Co. v. Jervey, 97 S. C. 185, 81 S. E. 501 73
Elkhorn Min. Corp. v. Commonwealth, 173 Ky. 417, 191 S. W.
256 117
Elligott, Hoffman Brewing Co. v 89, 90
Elliott v. State, 19 Ariz. 1, 164 Pac. 1179 108, 309, 403, 404
Elliott, State v 260
Ellis v. State, 133 Ark. 540, 202 S. W. 702 296, 305
Ellis, United States v 80
Elmore, State v 102
Emmons, People v 91, 280, 294, 371, 412
Emonds, State v 145, 376
Emsweller v. Wallace, 78 W. Va. 214, 88 S. E. 787 212, 272
Engman v. State, 77 Tex. <Cr. App. 59, 179 S. W. 569 367
Estes v. State (Okla. Cr. App.), 166 Pac. 77 84
Everett v. Cowles, 97 Wash. 396, 166 Pac. 786 '. 430
Everett v. McCulloch, 102 Wash. 51, 172 Pac. 863 219
Ex parte Ahart, 172 Cal. 762, 159 Pac. 160 138, 239
Ex parte Alderete (Tex. Cr. App.), 203' S. W. 763 196
Ex parte Davis (Tex. Cr. App.), 215 S. W. 341 60, 64, 72
Ex parte Fulton (Tex. Cr. App), 215 S. W. 331 62, 6^, 72, 276
Ex parte Kearney, 7 Wheat (U. S.) 'S«, 5 L. Ed. 391 197
Ex parte Peede, 75 Tex. Cr. App. 247, 170 S. W. 749 157
Ex parte Roya (Tex. Cr. App.), 215 S. W. 322 70, 323
Ex parte Westbrook ( D. 'C.) , 250 Fed. 63'6 125, 128
Ex parte Woodward, 181 Ala. 97, 106, 61 So. 295 65
Ex parte Zwissig (Nev.), 178 Pac. 20 206
xvi TABLE OF CASES CITED
Fabbri, State v 62, 67, 99, 101
Fahnestock v. State, 102 Ind. 156, 1 N. E. 372 253
Fair v. State (Ala. App.), 75 So. 828 391
Fant, Anderson v
Faraone v. United States (C. C. A.), 259 Fed. 507 409
Fargo Bottling Works Co., State v 62
Farmer v. Sellers, 89 S. 'C. 492, 72 S. E. 224 ?10, 211
Farmer v. State, 18 Ga. App. 54, 88 S. E. 797 347, 348
Feagin v. Andalousia, 12 Ala. App. 611, 67 So. 630 86, 413
Fehringer v. People, 59 'Colo. 3, 147 Pac. 361 257, 274
Felia v. Belton, 170 N. C. 112, 86 S. E. 999 233
Ferris, State v 117 423
Fetters v. United States (C. €. A.), 260 Fed. (142 282, 366
Files v. State (Okla. Cr. App.), 182 Pac. 911.... 103, 327, 328,
352, 370, 462
Finch v. State, 6 'Ga. App. 338, 64 3. E. 1007 106, 264, 440
Findley v. State, 11 Okla. Cr. App. 275, 145 Pac. 1107 321
Fine v. Moran (Fla.), 77 So. 533' 60, 66, 71
Finlayson, State v 196, 197
Finley, Union Nat. Bank v 432
First Nat. Bank v. State (Okla.), 178 Pac. 670 218
Fisher v. Skoglund, 155 la. 440, 136 N. W. 231 181, 190
Fisher v. State, 181 Tex. Cr. App. 568, 197 S. W. 189.. 265, 311,
313, 349, 424
Fisher v. Stolvenor & Co., .155 la. 548, 136 N. W. 673 183
Fitch v. State, 102 Neb. 361, 167 N. W. 417, 419 60, 61, 243
Fletcher v. Commonwealth, 106 Va. 840, 56 S. E. 149 265
Fletcher v. State, 12 Ga. App. 809, 78 S. E. 478 347
Fletcher v. State, 13 Okla. Cr. App. 563, 165 Pac. 907 424
Flood v. State, 12 Ga. App. 702, 78 S. E. 268 349, 433
Flowers v. Birmingham (Ala. App.), 83 So. 36 324, 327.
418, 419, 426
Fogg, State v 183, 187, 275
Food Conservation Act, In re 229
Ford v. State (Tex. Civ. App.), 209 S. W. 490, 494 57
Ford v. United States (C. C. A.), 259 Fed. 552 378
Ford Touring Car No. 1,440,316, State v 222, 256
Ft. Valley, Cooper v 347, 448
Fortin, State v 369
Foster, Seattle v 96
Fountain, Ruston v 107, 193
Fountain, State v 280, 342, 343, 365, 393, 399
Foxworth v. Law (Fla.), 82 So. 55 277
Francis, State v 259, 320, 358
TABLE OF CASES CITED xvii
Franklin, etc., Co., Southern Products Co. v 432
Frazle, State v 464
Freeman v. State (Okla. Cr. App.), 183 Pac. 626 445
Freeman, State v 259, 283, 287, 318
Freeney v. Gasper, 8 Ala. App. 469, 62 So. 385 427
Frey v. Commonwealth, 169 Ky. 528, 184 S. W. 896 209, 313', 397
Fugate v. Commonwealth, 171 Ky. 227, 188 S. W. 324 425
Fulton, Ex parte 62, 64, 72, 276
Funkenstein Co.. Gumming v 356
G
Gable v. State (Ind.), 121 N. E. 113 108
Gadsden, Cooper v 383, 385
Gage v. State, 125 Ark, 256, 188 S. W. 803 426
Gales v. State, 14 Ga. App. 450, 81 S. E. 364 372, 412
Galliari, People v 444
Gandrup, Milhiser v 151
Gardner, Commonwealth v 357
Gardners. State (Tex. Cr. App.), 212 S. W. 169 119
Garfield v. State, 114 Miss. 710, 75 So. 548 118
Gary v. State, 7 Ga. App. 502, 67 S. E. 207 396
Gaskins v. State, 127 Ga. 51, 55 S E. 1045 343, 347
Gastonguay, State v 176, 353, 448
Geer Drug Co. v. Atlantic Coast Line R. Co., 104 S. C. 207, 88
S. E. 448, Ann. Cas. 1917C, 908 81
Geist, State v 309
Gens, State v 122, 291, 328
George v. State, 17 Ga. App. 555, 87 S. E. 814 347, 348
George, State v 66
Georgia, Barbour v 63
Germain, State v 60, 67
Gesell, State v 403, 422
Gilliland v. State (Okla. Cr. App.), 179 Pac. 786 138. 435
Gillispie v. State, 96 Miss. 856, 51 So. 811 339
Giozza v. Tierman, 148 U. S. 657, 13 Sup. >Ct. 721, 37 L. Ed.
599 61
Glass, State v 182, 190
Glover v. State, 11 Ala. App. 287, 66 So. 877 261
Goldsberg, People v 267, 321, 374
Goldstein v. United States (C. C. A.), 256 Fed. 813, 815 282
Golpi v. State, 14 Okla. Cr. App. 564, 174 Pac. 288 124, 294
Gompers v. Bucks Stove Co., 221 U. S, 418, 31 Sup. Ct. 492, 55
L. Ed. 797, 34 L. R. A., N. S., 874n 197
Goodman v. 'Commonwealth, 169 Ky. 542, 184 S. W. 876 138
Goodman v. State (Ind.), 121 N. E. 826 432
Goodwin, Commonwealth v 93
— b
xviii TABLE OF CASES CITED
Gordon, Jackson v 137, 139, 202, 351, 354
Gordon, State v 153, 211, 419, 423, 424, 428
Gosell, State v 115
Grace v. State, 1 Ala. App. 211, 56 So. 25 119, 267
Granlich v.. State, 135 Ark. 243, 204 S. W. 848 251, 307
Grant v. State, 87 Ga. 265, 13 S. E. 554 343. 347
Great Northern Pac. S. S. Co. v. Ranier Brewing Co (C. C. A.),
255 Fed. 762 123, 158
Great Northern R. Co., State v 126, 130, 152, 221, 222
Green v. Atwood (Wash.), 180 Pac. 399 73, 74
Green, State v 259, 260
Gresham v. State, 1 Ala. App. 230, 55 So. 447 262
Grider v. State, 10 Ala. App. 170, 64 So. 756 294
Grier v. Johnson, 88 la. 99, 55 N. W. 80 197
Griffin v. Smith (Ga. App.), 99 S. E. 386 229, 230
Griffin v. State, 142 Ga. 636, 83 S. E. 540 333
Griffin v. State, 15 Ga. App. 552, 83 S. E. 871 206, 281
Gross, State v 103, 110, 367
Grusin v. State, 10 Ga. App. 149, 75 S. E. 350 368
Guarreno v. State, 148 Ala. 637, 42 So. 833 371
Gudger, United States v- 129
Guiaccimo v. State, 5 Okla. Cr. App. 371, 115 Pac. 129 450
Guignard v. United States (C. C. A.), 258 Fed. 607 436, 439
Guilbert v. Kaufman, 68 Ohio St. 635, 67 N. E. 1062 66
Gulf, etc., R. Co. v. State (Tex. Cr. App.), 212 S. W. 845.
• 64, 68, 69, 70, 72, 97, 179
Gulfort v. Martin, 96 Miss. 131, 50 So. 502 272
Gummer, State v 265
Gunn v. Atwell, 148 Ga. 137, 96 S. E. 2 231
H
Haar v. State, 14 Ga. App. 548, 81 S. E. 811 409, 442
Hale v. State (Okla. Cr. App.), 181 Pac. 735 451, 461
Hall v. Mobley, 13 Ga. 318 224
Hall v. State, 19 Ariz. 12, 165 Pac. 300 88, 137, 140, 410
Hall v. State, 7 Ga. App. 186, 66 S. E. 486 280
Hall v. State, 8 Ga. App. 747, 70 S. E. 211 257, 263, 264
Hamilton v. State, 80 Tex. €r. App. 516, 191 S. W. 1160 113
Hampton, State v .315, 328
Haney, State v 266
Hanson, Civic Improv. League v 175
Harris v. Hutchison, 160 la. 149, 140 N. W. 830, 44 L. R. A.,
N. S., 1035 199,200
Harris, People v 150
Harris v. State (Ark.), 215 S. W. 620 255, 284, 295
Harris v. State, 21 Ga. App. 796, 95 S. E. 321... 244
TABLE OF CASES CITED xix
Harris v. State, 113 Miss. 457, 74 So. 323, L. R. A. 1917D, 1031n
118
Harris v. State (Okla. Cr. App.), 181 Pac. 944 323
Harrison v. State, 12 Ala. App. 284, 68 So. 532 304, 358, 461
Harrison, State v 191
Hartsville v. McCall, 101 S. C. 277, 85 S. E. 599 125
Harwell v. State, 11 Ala. App. 188, 65 So. 702 363, 462
Harwell v. State, 12 Ala. App. 265, 68 So. 500 355, 383, 384, 411
Hastings, State v 108, 138, 140, 147, 351,379
Hathaway v. Bluton, 127 la. 299, 154 N. W. 474 174, 175, 177
Hatinger, People v 280
Hawkins v. State (Okla. Cr. App.), 182 Pac. 732 256
Hayes v. State, 18 Ga. App. 68, 88 S. E. 752 419
Haymond v. State (Ind.), 119 N. E. 5, 6 256
Haynes v. State, 5 Ala. App. 167, 59 So. 325 119
Hays, State v 106, 350, 416, 442
Hazelhurst, Langston v 347, 348
Head z: State (Tex. Cr. App.), 198 S. W. 581 315
Heier v. State (Ind.), 122 N. E. 578 321
Heldt, State v 265
Hemmelweit v. State (Ala.), 75 So. 961 321
Hemrich, State v 62, 80, 81, 82. 83, 93, 94, 345
Henderson v. Heyward, 109 Ga. 373, 34 S. E. 590, 47 L. R. A.
366, 77 Am. St. Rep. 384 60
Henderson Brewing Co., Owens v 73
Hendrix v. State* (Ga. App.), 100 S. E. 55 133, 296, 299, 300, 445
Hendry r. State, 147 Ga. 260, 93 S. E. 413, 414 306
Henley r. State, 3 Ala. App. 215, 58 So. 96 368, 369, 373
Henry, State v 293, 325, 365
Herbring v. Brown (Ore.), 180 Pac. 328 59
Herman i'. State, 125 Ark. 278, 188 S. W. 541 '97, 398
Hermann, Caffini v 209, 279
Hern, Allison v 229
Herring v. State, 11 Ala. App. 202, 65 So. 707 417, 423, 424, 427
Herring v. State (Ala. App.), 75 So. 646 254, 287
Herstrom, Van Bug Fish Co. <v 219
Hesterburg, Silz v 61
Hewetson, Seattle v 429, 430
Heyward, Henderson v 60
Hicks v. State (Ark.), 215 S. W. 685 72, 73, 374
Higgins f. State (Ark.), 206 S. W. 440 381
High v State (Okla. Cr. App.), 180 Pac. 572 382. 445
High r. State (Okla. Cr. App.), 182 Pac. 907 451
Highsmith v Waycross, 7 Ga. App. 611, 67 S. E. 677 347
Hightower v State, 73 Tex. Cr. App. 258, 165 S. W. 184 118
Hill v. State, 19 Ariz. 78, 165 Pac. 326 Ill, 137, 403, 404
xx TABLE OF CASES CITED
Hill, United States v 68, 129
Hillsdale Distillery Co., United States v 159, 268
Kinsman v. State, 41 Ga. App. 481, 81 S. E. 367 289
Hodge v. State, 11 Ala. App. 185, 65 So. 676 417, 423
Hoffman, State v 169, 434
Hoffman Brewing Co. v. McEHigott (D. C.), 259 Fed. 321.. 64,
75, 89, 90
Hoffman Brewing Co. v. McElligott (C. C. A.), 259 Fed. 525.. 89
Holden v. State (Okla. Cr. App.), 180 Pac. 969 442
Hollanch, State v 147, 403, 408
Holley, Long v 148
Hollingworth v. State, 3 Ala. App. 153, 54 So. 501 454
Hollingsworth v. State, 17 Ga. App. 725, 88 S. E. 213 441
Hollingsworth, State v 365
Holmes v. State, 132 Ark. 135, 200 S. W. 1038 458
Holmes v. State, 12 Ga. App. 359, 77 S. E. 187.. 297, 366, 383, 397, 402
Holt v. State (Ala. App.), 78 So. 315 238, 243, 354
Holt v. State, 126 Ark. 223, 190 S. W. 101 422
Horner, State v 100, 101, 301, 439
Horton v. State, 105 Miss. 333, 62 So. 360 104
Hoskins v. Commonwealth, 171 Ky. 204, 188 S. W. 348 203, 345
Howard v. Acme Brewing Co., 143 Ga. 1, 83 S. E. 1096 L. R.
A. 1917 A, 91 91,175
Howard, Cassidy v 192
Howard, Loh v 190
Howard v. State (Ala. App.), 73 So. 559 206
Howard v. State, 7 Ga. App. 61, 65 S. E. 1076 , 84, 86
Howell, Mullen v 58, 59
Howze v. State (Ala. App.), 75 So. 624 371
Huddleston v. Commonwealth, 171 Ky. 261, 188 S. W. 366 300, 454
Huddleston v. Commonwealth, 171 Ky. 310, 188 S. W. 398... 104
Hudgens v. Southern Exp. Co., 74 W. Va. 760, 83 S. E. 63 157
Huff v. State, 12 Okla. Cr. App. 138, 152 Pac. 464 336
Huggins v. State (Tex. Cr. App.), 210 S. W. 804 434
Hughes v. State, 61 Fla. 32, 55 So. 463 358
Hughes, State v 228
Humphrey, People r 72, 144, 152,431
Humphrey v. State (Ala. App.), 77 So. 82 140
Hunter, True v 334, 342
Hutchison, Harris v 199, 200
Hutchison, Tuttle v 197
I
Illinois, Booth v 61
In re Crane, 27 Idaho 671, 151 Pac. 1006, L. R. A. 1918A, 942.. 62
In re Food Conservation Act (D. C.), 254 Fed. 893 229
TABLE OF CASES CITED xxi
In re State,179 Ala. 639, 60 So. 285 180, 207
Intoxicating Liquors, State v 210, 216, 224, 225, 230, 231
Intoxicating Liquors and Vessels, State v 85, 86, 139, 355
Iowa, Bartemeyer v 60, 62, 63
Irwin v. Klamath County (Ore.), 183 Pac. 780 330
J
Jackson, Bledsoe v 436
Jackson v. Gordon (Miss.), 80 So. 785 137, 139, 202, 3'51, 354
Jackson v. State, 148 Ga. 3'51, 96 S. E. 1001 64, 71, 131
Jackson v. State/12 Ga. App. 480, 77 S. E. 651 386
Jackson v. State, 13 Ga. App. 147, 78 S. E. 867 347
Jackson v. State, 107 Miss. 153, 65 So. 1231 443
Jackson v. State (Tex. Cr. App.), 200 S. E. 150 259, 357, 383, 423
James, United States v 64, 67, 68
Jamison, 'State v 104
Jaques, State v 265, 266
Jarvis, State v 167, 168, 334, 335, 353, 447
Jefferson v. Perry, 18 Ga. App. 689, 90 S. E. 365 448
Jefferson v. Perry, 18 Ga. App. 690, 90 S. E. 366 448
Jenkins v. State, 4 Ga. App. 859, 62 S. E. 574 205
Jenkins v. State (Ga. App.), 100 S. E. 763 438
Jenkins v. State, 11 Okla. Cr. App. 168, 145 Pac. 506 276
Jenkins, State v 66
Jensen, Southern Pac. Co. v 65
Jensen, State v 215, 226
Jepson, Nies v 190, 334, 341
Jervey, Elder Harrison Co. v ' 73
John, State v 250, 264, 268, 274
Johns v. State, 13 Ala. App. 283, 69 So. 259 447
Johnson, Grier i> 197
Johnson v. State, 172 Ala. 424, 55 So. 226, Ann. Cas. 1913E,
296 116, 119
Johnson v. State, 3 Ala. App. 155, 57 So. 499 413
Johnson v. State, 13 Ga. App. 371, 79 S. E. 178 347
Johnson v. State 13 Ga. App. 654, 79 S. E. 758 446
Johnson v. State, 6 Okla Cr. App. 490, 119 Pac. 1131..- 450
Johnson v. State, 75 Tex. Cr. App. 177, 171 S. W. 211. .61, 251, 411, 415
Johnson v. State, 81 Tex. Cr. App. 71, 193 S. W. 674 292, 310
Jones v. Montgomery (Ala. App.), 77 So. 969 447
Jones v. State, 4 Ala. App. 159, 58 So. 1011 208
Jones v. State, 12 Ga. App. 564, 77 S. E. 892 252, 347
Jones v. State, 17 Ga. App. 118, 86 S. E. 284 206
Jones v. State, 108 Miss. 530, 66 So. 987 113
Jones v. State (Okla. Cr. App.), 183 Pac. 519 451
Jones v. Slate, 76 Tex. Cr. App. 239, 174 S. W. 349 247
xxii TABLE OF CASES CITED
Jones, State v 100, 176, 357
Jones v. United States (C. C. A.), 259 Fed. 104 127
Jones-Hansen-Cadillac Co., State v 96, 170, 218, 220
Joy, People v 119
Julius, State v 150, 274, 360
K
Kansas, Mugler v 60, 62, 65, 193
Kansas City, Kansas City Berweries Co. v 177, 185
Kansas 'City Breweries Co., v. Kansas City, 96 Kan. 731, 153
Pac. 523 177, 185
Kapicsky, State v 168, 178
Kasiska, State v , 180
Kaufman, Guilbert v. . 66
Kearney, Ex parte 197
Kelley v. State, 171 Ala. 44, 55 So. 141 244, 259, 263
Kelly, State v ! 271, 287, 359
Kemp v. State, 130 Ark. 175, 196 S. W. 918 294, 310
Kendrick v. State, 11 Okla. Cr. App. 380, 146 Pac. 727 Ill
Kennan v. Commonwealth, 122 Va. 831, 94 S. E. 186 263
Kennedy, Bluthenthal v 73
Kerney v. State, 21 Ga. App. 500, 94 S. E. 625 372
Kidd v. Pearson, 128 U. S. 1, 32 L. Ed. 346, 2 Interst. Com.
Rep. 232 60, 143
Kiefer, State v 176, 449
Killeen, State v 85, 355, 426
Killian, State v 100, 322
Killough v. State (Okla. Cr. Ap,p.), 183 Pac. 430 261
Kindrix v. State (Ark.), 212 S. W. 84 462
King, State v 273
Kirk v. State, 10 Ala. App. 216, 65 So. 195 278, 399
Kirk v. State, 14 Ala. App. 44, 70 S. E. 990 381, 382, 428
Kirkpatrick v. State, 12 Ga. App. 252, 77 S. E. 104 164
Kirkwood Leisure Hours' Social, etc., Club, State v 174
Klamatli County, Irwin v 330
Klein, State v 86, 179, 355
Knapp, State v 169, 186, 189, 192, 193
Knowles v. State, 80 Ala. 9 413
Koerner, State v 265
Komada & Co. v. United States, 215 U. S. 392, 396, 30 Sup. <Ct.
136, 54 L. Ed. 249 90
Kunsberg v. State, 147 Ga. 591, 95 S. E. 12 &6, 333
Kurent, State v 62, 199, 200, 285, 375
L
Labbe, People v 131, 272
TABLE OF CASES CITED xxiii
Labrecque, State v 66, 81
Lacey v. State, 135 Ark. 470, 205 S. W. 814 351
Ladd, State v 266
Ladson v. State, 56 Fla. 54, 47 So. 517 246
Lafargue, State v 403, 404
Lake County, etc., Sav. Co., Chicago, etc., R. Co. v 432
Lakomy v. People (Colo.), 178 Pac. 571 386
Lambie v. State, 151 Ala. 86, 91, 44 So. 51 65
Land v. State (Fla.), 81 So. 159 72
Land v. State, 5 Ga. App. 98, 62 S. E. 665 206
Landers v. State (Tex. Cr. App.), 210 S. W. 694 85
Lane v. Commonwealth, 122 Va. 916, 95 S. E. 466 246, 336
Lane v. Milieu, 18 Ga. App. 18, 88 S. E. 748 347, 348
Lane v. Tuscaloosa, 12 Ala. App. 599, 67 So. 778 398
Langston v. Hazelhurst, 9 Ga. App. 449, 71 S. E. 592 347, 348
Larson, Margin v 180
Laughter v. United States (€. C. A.), 259 Fed. 94 121, 128, 432
Law, Foxworth v 277
Laymon, State v 252, 403, 406
Leary, State v 188
Lebrecht v. State (Okla.), 172 Pac. 65 220
Le Clair v. White, 117 Me. 335, 104 Atl. 516 333
Lee v. State (Tex. Cr. App.), ?04 S. W. 110, 112 326
Lee, State v BOS
Legendre, State v 109, 386
Legg v. Anderson, 116 Ga. 401, 42 S. E. 720 193
Leisy Brewing Co., Belden and Co. v 104
Lemon v. Commonwealth, 171 Ky. S22, 188 S. W. 858.. 375, 389, 433
Leonard, State v 266
Lesh, State v 149, 261, 283
Lester, People v 205
Lester v. State, 8 Ala. App. 376, 62 So. 337 263
Lewis, Castle v 280, 337, 452
Lewis v. State, 6 Ga. App. 203, 64 S. E. 701 446
Lewis v. State, 6 Ga. App. 779, 65 S. E. 842 84
Lewis v. State, 17 Ga. App. 445, 87 S. E. 709 269
Lieber, State v 121, 286
Li Fieri, State v 254, 269
Lindsay v. State, 138 Ga. 818, 76 S. E. 369 388
Lindsay v. State, 9 Okla. Cr. App. 730, 132 Pac. 1194 450
Lippman v. State, 72 Fla. 428, 73 So. 357 222
Liquor Trans. Cases v. State, 140 Tenn. (13 Thompson) 582,
205 S. W. 423 120, 123, 124, 130, 258, 277
Little, State v + 362
Littlefield v. State, 22 Ga. App. 783, 97 S. E. 259 Ill, 320
Littleton v. State, 20 Ga. App. 746, 93 S. F ISO '.372, 402
xxiv TABLE OF CASES CITED
Lochinar v. State, 111 Md. 660, 76 Atl. 586, 19 Ann. Cas.
579 103
Loeb v. State, 6 Ga. App. 23, 64 S. E. 338 103
Lofton v. Collins, 117 Ga. 434, 43 S. E. 780, 61 L. R. A. 150.. 193
Loh v. Howard, 141 Ga. 509, 81 S. E. 198 190
Long v. Holley, 177 Ala. 508, 58 So. 264 148
Longmire v. State, 75 Tex. Cr. App. 616, 171 S. W. 1165, L.
R. A. 1917A, 726 64, 248
Looper v. State, 74 Tex. Cr. App. 144, 167 S. W. 432 434
Lopez v. State (Tex. Cr. App.), 208 S. W. 167 109
Loserth, Reusch v 182
Loudermilk v. State, 4 Ala. App. 167, 58 So. 180 318, 368, 369
Louisville, etc., R. 'Co., Commonwealth v 277
Louisville, etc., R. Co. v. State (Ala. App.), 76 So. 505, 512 66
Lovell, State v 62
Lowery v. State, 135 Ark. 159, 203 S. W. 838 99, 296, 408, 429
Loyd v. Dollinson, 194 U. S. 445, 24 Sup. Ct. 703, 48 L. Ed.
1065 143
Lucchesi v. Commonwealth, 122 Va. 872, 94 S. E. 925 65, 382
Lumpkin v. Atlanta, 9 Ga. App. 470, 71 S. E. 755 88, 344
Lunsford, State v 274
Lupo v. State, 118 Ga. 759, 45 S. E. 602 106
Luther v. State, 83 Neb. 455, 120 N. W. 125, 20 L. R. A., N.
S., 1164n 66
Luther, United States v 124, 250, 259
Lynch, Purity Extract, etc., Co. v 60, 61, 64, 65, 66, 93, 193
Lynch, State v 92
Lynn v. State, 10 Ala. App. 223, 65 So. 92 456
Lyon v. City Club, 83 S. C. 509, 65 S. E. 730 88
Lyon, State v 172, 173, 181
Lyons, State v 402
M
Maas, Bowers v 183, 186, 335
McAdams v. State, 9 Ga. App. 166, 70 S. E. 893 247, 251, 252
McAdams v. Wells Fargo & Co. Exp. (D. C.), 249 Fed. 175.. 128
McAlester v. State (Okla. Cr. App.), 174 Pac. 1106, 1107 443, 450
McAlester v. State (Okla. Cr. App.), 180 Pac. 718 370
McAllister v. State, 156 Ala. 122, 47 So. 161 143, 276, 352, 429
McAllister v. State, 17 Ga. App. 159, 86 S. E. 412 389
McCall, Hartsville v 125
McCasky, State v 149f 382
McConathy v. Deck, 34 Colo. 461, 466, 83 Pac. 135, 4 L. R. A.,
N. S. 358N, 7 Ann. Cas. 896 225
McCowen, State v 351t 352
McCuen v. State, 75 Tex. Cr. App. 108, 170 S. W. 738.. 386
TABLE OF CASES CITED xxv
McCulloch, Everett v 219
Macek, State v 62, 257, 272, 285
McElligott, Hoffman Brewing Co. v 64, 75, 89
McElwee v. State, 73 Tex. Cr. App. 445, 165 S. W. 927 360
McGee v. State (Ga. App.), 100 S. E. 733 298
McGovern v. State, 11 Ga. App. 267, 74 S. E. 1101 347
McQuire, State v 356
McHenry, Berner v 152
Mclntosh v. State, 140 Ala. 137, 37 So. 223 371
Mack v. State, 116 Ga. 546, 42 S. E. 776, 59 L. R. A. 602 343, 347
Mack v. Westbrook, 148 Ga. 690, 98 S. E. 339, 341. .60, 61, 215, 221, 223
McKnight v. United States, 164 C. C. A. 527, 252 Fed. 687 157
McKone, State v 419, 420
McLean v. People (Ala.), 180 P. 676.. 85, 86, 251, 293, 310, 322,
330, 355, 379, 408, 415
McMillian v. Anderson, 183 la. 873, 167 N. W. 599 448
McMillian v. Metcalfe (la.), 174 N. W. 481.. 188
McMillan v. Miller (la.), 174 N. W. 259 453
McNeal v. State (Okl. Cr. App.), 179 Pac. 943, 944 123, 240, 258
McNeil v. State, 125 Ark. 47, 187 S. W. 1060 246
Macon, Borders v 392, 419, 420, 431
Macon, Seabrooks v 448
Maguire, State v 167, 187, 424
Maisel v. State (Ala. App.), 81 So. 348 326, 336
Malcolm v. United States (C. C. A.), 256 Fed. 363 258, 378
Malick z: State (Neb.), 169 N. W. 5 316, 346
Malone v. State (Ark.), 214 S. W. 36 311
Manship, State v 392
Maples v. State (Ala.), 82 So. 183 215, 226
Marasso v. Van Pelt (Fla.), 81 So. 529 69
Marastoni, State v 67, 99, 101
Marks v. State, 159 Ala. 71, 80, 48 So. 864, 133 Am. St. Rep. 20.
65, 80, 81,84, 85, 86, 87, 91, 92, 94, 263, 355, 413
Markuson, State v 197
Maroun, Shreveport v. 107, 193
Maroun, State v 241
Marquardt, State v 202
Marshall, State v 172, 182, 185
Marston v. Biegelow, 150 Mass. 45, 22 N. E. 71, 5 L. R. A. 43.. 348
Martin v. Commonwealth (Va.), 100 S. E. 836 127, 136
Martin, Gulfort v 272
Martin, Nesmith v 232
Martin v. Rome, 9 Ga. App. 574, 71 S. E. 897 344
Martin v. State (Ala. App.), 78 So. 322 396, 409
Martin, State v 145, 151
xxvi TABLE OF CASES CITED
Martoni v. State, 74 Tex. Cr. App. 90, 167 S. W. 349.. 376,
, 383; 385, 460
Marvin v. Larson, 153 Wis. 488, 140 N. W. 285 180
Massachusetts, Beer Co. v 60, 63
Matarazza, State v 275
Mathews, State v 305
Mattox Cigar, etc., Co., State v 66, 91
Mayer v. United States (C. C. A.), 259 Fed. 216 246
Maynes v. State, 6 Okla. Cr. App. 487, 119 Pac. 644 123, 240
Mead v. Stratton, 87 N. Y. 493, 41 Am. Rep. 386 97
Medlock if. State, 79 Tex. Cr. App. 322, 185 S. W. 566.. 106,
397, 398, 401
Meloche, People v 165, 286
Merriwether v. Tuscaloosa, 13 Ala. App. 651, 69 So. 258 342
Metcalfe, McMillan v 183
Meyers, State v 292, 302, 311
Michigan, Eberle v 60, 144
Midland Aerie No. 412, Fraternal Order of Eagles, State r. . 179
Milhiser v. Gandrup (la.), 146 N. W. 843' 151
Milledgeville, Collins v 360
Millen, Lane v 347, 348
Miller, McMillan v 453
Miller, State v 83, 84, 437
Mills v. State, 11 Ga. App. 383, 75 S. E. 266 383, 385
Milwaukee Beer Co. v. State, 55 Okla. 181, 155 Pac. 200 208
Minery, United States v 75, 76
Missouri Athletic Club, State v 97
Missouri, etc., R. Co. v. Danciger, 160 C. C. A. 176, 248 Fed.
36 123
Mitchell v. State, 20 Ga. App. 778, 93 S. E. 709, 710 112
Mobley, Halle v 2:24
Montgomery, Benjamin v 356
Montgomery, Jones v 447
Montgomery v. State, 11 Okla. Cr. Ap,p. 415, 142 Pac. 1048 377
Monumental Brewing Co. v. Whitlock (S. C.), 97 S. E. 56 104
Monyean v. State, 18 Ariz. 491, 62 Pac. 135, L. R. A. 1917D,
1014n Ill
Moody v. State, 14 Ga. App. 523, 81 S. E. 588 115
Moore v. State, 12 Ala. App. 243, 67 So. 789 304, 383, 384
Moore, State v 249
Moran, Fine v 60 66, 71
Morgan v. Cedartown, 13 Ga. App. 139, 78 S. E. 863 347
Morrilton, Scoggin v 349, 433, 440
Morris v. State (Okla. Cr. App.), 180 Pac. 561 445
Morse v. State, 10 Ga. App. 61, 72 S. E. 534 416
Morton v. State (Tenn.), 209 S. W. 644 352
TABLE OF CASES CITED xxvii
Morton, State v 145, 146, 147, 352
Moses v. State, 100 Miss. 346, 56 So. 457 359
Mosley v. State, 107 Miss. 158, 65 So. 124 367
Moss v. State, 3 Ala. App. 189, 58 So. 62 287
Mostella, State v 356, 416
Motlow v. State, 125 Tenn. 547, 145 S. W. 177, L. R. A. 1916F,
177 62
Mountain City Club, State v 178
Mueller, People v 92, 412
Mugler v. Kansas, 123 U. S. 623, 662, 8 Sup. Ct. 273, 31 L. Ed.
205 60, 62, 65, 193
Mull, State v 98
Mulledgeville, Bloodworth v 391
Mullen v. Howell (Wash.), 181 Pac. 920 58, 59
Muller, State v 240
Mulligan, Perry v 224
Mulling v. State, 17 Ga. App. 828, 88 S. E. 709 347
Mullins v. Commonwealth, 115 V. 945, 79 S. E. 324.. 83, 262, 268, 363'
Mullins v. State (Ga. App.), 100 S. E. 755 433
Mundy v. State, 9 Ga. App. 835, 72 S. E. 300 293, 3<00, 308
Munn v. State, 5 Okla. Cr. App. 245, 114 Pac. 272 122
Murphy v. California, 225 U. S. 623, 3*2 Sup. Ct. 697, 56 L. Ed.
1229, 41 L. R. A., N. S., 153 61
Murphy v. Peabody, 63 Ga. 522 224
Murray v. State, 19 Ariz. 49, 165 Pac. 315 291, 3-27, 417, 450
Myers v. State, 16 Ga. App. 266, 85 S. E. 206 347
N
National Mason Acci. Ass'n v. Burr, 57 Neb. 437, 77 N. W.
1098 348
Naughton, Shideler v 183
Neal v. Commonwealth (Va.), 98 S. E. 629 336, 337, 338, 339
Neal v. State (Ga. App.), 100 S. E. 12 317
Nelson v. State (Ark.), 212 S. W. 93 288, 353, 354, 460
Nesmith r. Martin (Ga.), 98 S. E. 551 232
New, Wilson v 65
Newberry v. Dorrah, 105 S. C. 28, 89- S. E. 402 131
Newlin, State v 364
New York, Adams Exp. Co. v 90
Nicolay, State v 86, 147
Nies v. District Court (la.), 161 N. W. 316.. 193, 194, 195, 196.
197, 198, 199, 200, 335, 377, 393
Nies v. Jeyson, 174 la. 188, 156 N. W. 292 3, 190, 334
Nixon v. State, 92 Neb. 115, 138 N. W. 136, 137 307, 435
Noble v. People ('Colo.), 177 Pac. 970 224, 225, 231
Norfolk, etc., R. Co., Clark v 208
xxviii TABLE OF CASES CITED
Norred v. State (Ala. App.), 82 So. 559 325
North Carolina, Seaboard Air Line Railway v 60, 61, 68
Northern, etc., Co. v. Brenneman (C. C. A.), 259 Fed. 514 221
Nowell v. State, 18 Ga. App. 143, 88 S. E. 909 132, 444
O
O'Brien v. State, 3 Ala. App. 173, 57 So. 1028 281
O'Connell, State v 66
O'Donnell v. Commonwealth, 108 Va. 882, 62 S. E. 373.. 107,
237, 366, 377
Ogleston, State v 363, 437
Ohio v. Cox (D. C.), 257 Fed. 334, 335 57, 58
O'Kelley, State v 151, 153
Oldacre v. State (Ala. App.), 75 So. 827 284, 319
One Buick Automobile, United States v 217
One Cadillac Automobile v. State (Okla.), 172 Pac. 62 220
One Cadillac Automobile v. State (Okla.), 182 Pac. 227 215
One Cadillac Eight Automobile, United States v 217
One Ford Automobile, United States v 216
One Ford Five Passenger Automobile, United States v 220
One Moon Automobile v. State (Okla.), 172 Pac. 66 220
One Packard Automobile, State v : 220
One Seven Passenger Paige Car, United States v 227
O'Rear v. State, 15 Ala. App. 17, 72 So. 505 131
Orr v. Cornell (Ala.), 156 N. W. 296 198, 199
Otis v. Parker, 187 U. S. 606, 23 Sup. Ct. 168, 47 L. Ed. 323.. 61
O'Toole, State v 387, 388, 405
Otto, State v 275, 455
Overton v. State, 11 Okla. Cr. App. 1, 140 Pac. 1135 378, 381
Owens v. Henderson Brewing Co. (Ky.), 215 S. W. 90 73
P
Page v. State (Ga. App.), 99 S. E. 55 256, 388
Pape v. State, 108 Miss. 706, 67 So. 177 456
Pappenburg v. State, 10 Ala. App. 224, 65 So. 418 432, 450
Park v. State, 120 Okla. Cr. App. 302, 155 Pac. 494 239
Parker, Otis v 61
Parker v. State (Ga. App.), 100 S. E. 38 133
Parks v. State, 21 Ga. App. 506, 94 S. E. 628, 629 444
Pate v. State (Okla. Cr. App.), 180 Pac. 559 445
Patterson v. State, 8 Ala. App. 420, 62 So. 1023 387, 391, 394
Patterson v. State (Ark.), 215 S. W. 629 99, 301, 381, 414
Patterson v. State (Ga. App.), 100 S. E. 641 88
Payne v. State, 124 Ark. 20, 186 S. W. 612 ,. 456
Peabody, Murphy v 224
Pearson, Kidd v 60, 143
TABLE OF CASES CITED xxix
Peebles v. State, 105 Miss. 834, 63 So. 27 286, 356
Peede, Ex parte 157
Peloquin, State v 261, 262
Pennell v. State, 141 Wis. 35, 123 N. W. 115 66
Pensacola, etc., S. S. Co., State v 230, 231
People v. Allen (Cal. App.), 174 Pac. 374 327, 351, 411
People v. Argo, 237 111. 173, 86 N. E. 679 374
People, Belfe v 205, 206, 238, 245, 378
People v. Bell, 170 Mich. 675, 137 N. W. 107 146
People v. Bullock, 173 Mich. 397, 139 N. W. 43 133, 377
People v. Calliari, 196 Mich. 475. 163 N. W. 154, 155 322, 397
People v. Craig, 128 App. Div. 908, 112 N. Y. Supp. 1142 96
People v. Dann, 183 Mich. 554, 149 N. W. 1002 350
People v. Emmons, 178 Mich. 126, 144 N. W. 479, Ann. Cas.
1915D, 425 91, 280, 294, 371, 412
People, Fehringer v 257, 274
People v. Galliari, 196 Mich. 475, 163' N. W. 154 444
People v. Goldberg, 287 111. 238, 122 N. E. 530 267, 321, 374
People v. Harris (Mich.), 168 N. W. 447 150
People v. Hatinger, 174 Mich. 333, 140 N. W. 648 280
People v. Humphrey, 194 Mich. 10, 160 N. W. 445 ..72, 144, 152, 431
People v. Joy, 30 Cal. App. 36, 157 Pac. 507 119
People v. Labbe (Mich.), 168 N. W. 451 131, 272
People, Lakony v 386
People -v. Lester, 195 Mich. 477, 162 N. W. 72 205
People, McLean v 85, 86, 251, 291, 293, 310, 322, 330, 355,
379, 408, 415
People v. Meloche, 186 Mich. 536, 152 N. W. 918 165, 286
People v. Mueller, 168 Cal. 526, 143' Pac. 750 92, 412
People, Noble v 224, 225, 231
People, Ryan v 402
People v. Silver, 286 111. 496, 122 N. E. 115 298, 433
People v. Strickler, 25 Cal. App. 60, 142 Pac. 1121 93
People v. Sue Chung Kee, 26 Cal. App. 732, 148 Pac. 529 397
People v. Wheeler, 185 Mich. 164, 151 N. W. 710 60, 204
Perdue v. State, 135 Ga. 277, 69 S. E. 184 290
Perello, State v 249
Perro v. State, 113 Me. 493, 94 Atl. 950 222
Perry, Jefferson v 448
Perry v. Mulligan, 58 Ga. 479 224
Perry v. Southern Exp. Co. (Ala.), 81 So. 619 129
Peters, State r 400
Petus v. Commonwealth, 123 Va. 806, 96 S. E. 161, 162 132
Peyton v. State (Okla. Cr. App.), 1S3 Pac. 639 295, 317
Phelps v. State (Ala. App.), 75 So. 877 460
Philips, State v 93'
xxx TABLE OF CASES CITED
Phillips v. State (Okla. Cr. App.), 183 Pac. 521 387
Phillips v. Stapleton (Ga. App.), 97 S. E. 885 222
Pierce, State v 397, 398
Pine v. Commonwealth, 121 Va. 812, 93 S. E. 652.... 64, 204,
238, 252, 288, 300, 311, 312, 336, 368, 457
Pines v. State, 15 Ga. App. 348, 83 S. E. 198 256, 264, 273
Pitts v. Atlanta, 14 Ga. App. 399, 81 S. E. 249 444
Pitts v. State, 17 Ga. App. 836, 88 S. E. 712 457
Flair v. State (Ga. App.), 99 S. E. 61 317
Plunkett, Delaney v 62, 131, 255
Pope v. State, 108 Miss. 706, 67 So. 177 114, 269
Pope, State v 120,450
Porras v. State, 19 Ariz. 131, 166 Pac. 288 386
Preyer v. United States (C. C. A.), 260 Fed. 157 .'.... 129
Price v. State (Tex. Cr. App.), 202 S. W. 948 316
Proctor v. State (Okla. Cr. App.), 176 Pac. 771 2b5, 272
Provencher, State v 116
Pruett v. State, 18 Ga. App. 313, 89 S. E. 378 ; . 440
Purity Extract, etc., Co. v. Lynch, 100 Miss. 650, 56 So. 316... 66, 93
Purity Extract, etc., Co. v. Lynch, 226 U. S. 192, 201, 33 Sup.
Ct. 44, 57 L. Ed. 184 60, 61, 64, 65, 66, 193
Q
Quinn v. Reed, 130 Ark. 116, 197 S. W. 15 156
Quinn v. State, 15 Ala. App. 635, 74 So. 743 3'68
Quinn v. State, 22 Ga. App. 632, 97 S. E. 84 396
Quinn v. State, 8 Okla. Cr. App. 478, 128 Pac. 1104 450
R
Radke, State v 305
Ragan v. State, 9 Ga. App. 871, 72 S. E. 441 362, 400
Ragghianti, State v 180, 181, 198
Rainer Brewing Co., Great Northern Pac. S. S. Co. v 123, 158
Randall, State v 333, 373
Ranier Brewing Co., United States v 75,89
Ralph, State v 191, 233
Rash v. State, 13 Ala. App. 262, 69 So. 239 107. 250, 335, 363, 403
Rast v. Van Deman, etc., Co., 140 U. S. 342, 36 Sup. Ct. 370,
60 L. Ed. 679, L. R. A. 1917 A, 421n, Ann. Cas. 1917B, 455.. 61
Raub, State v 431
Raven, State v 99, 100, 270
Rawlings, State v 334, 342
Ray v. State (Del.), 100 Atl. 472 225, 320, 361
Raymert v. Smith, 5 Cal. App. 380, 90 Pac. 470 197
Reddick v. State, 15 Ga. App. 437, 83 S. E. 675 370, 396, 403, 406
Reed, Quinn v 156
Regadany v. State, 171 Ind. 387, 391, 86 N. E. 449.. 253
TABLE OF CASES CITED xxxi
Reisen, State v 172
Reismier v. State, 148 Wis. 593, 135 N. W. 153 431
Ren v. State, 9 Okla. €r. App. 167, 132 Pac. 1131 450
Reno Brewing Co., State v 97, 177
Reno Brewing Co., Thatcher v 61, 80, 81, 82
Reusch v. Loserth, 158 la. 227, 139 N. W. 454 182
Reynolds v. State, 18 Ariz. 388, 161 Pac. 885 296, 316, 432
Richardson, State v 342
Rigrish v. State, 178 Ind. 470, 99 N. E. 786 256
Rippey v. Texas, 193 U. S. 504, 24 Sup. Ct. 516, 48 L. Ed. 1065
143
Rivard v. State, 133 Ark. 1, 202 S. W. 39 122
Robbins v. State, 12 Okla. Cr. App. 412, 157 Pac. 1027 258
Roberts v. State, 4 Ga. App. 207, 60 S. E. 1082 96, 205
Roberts v. State, 8 Ga. App. 476, 69 S. E. 585 103
Robertson v. State (Ga. App.), 60 S. E. 1082 90
Robertsore v. State, 130 Ark. 158, 197 S. W. 31 126, 297
Robertson, Territory v 175
Robilio v. United States (C. C. A.), 259 Fed. 101 400, 452, 453
Robinson v. 'Commonwealth, 118 Va. 785, 87 S. E. 553 280, 302, 359
Robinson v. State (Ind.), 24 N. E. 489 295, 317
Robinson v. State, 81 Tex. Cr. App. 448, 196 S. W. 186 358
Robinson — Pettet Co., Commonwealth v 358
Robinson-Pettet Co., Commonwealth v 298
Roden v. State, 3 Ala. App. 193, 58 So. 74 289, 390
Roden v. State, 3 Ala. App. 199, 58 So. 72 360
Rogers v. State (Ala. App.), 73 So. 994 276, 288
Rogers v. State, 133 Ark. 85, 201 S. W. 845 244, 342, 243, 389
Rogers, State v 168
Rome, Martin v 344
Rose v. State, 4 Ga. App. 588, 62 S. E. 117 165, 166, 286
Rosenberg v. State, 5 Ala. App. 196, 59 So. 366 271, 307, 403
Rosenoff v. Cross, 95 Wash. 525, 164 Pac. 236 145
Ross v. State (Okla. Cr. App.), 180 Pac. 573 451
Ross, State v 152, 163, 377
Rothschild v. State, 12 Ga. App. 728, 78 S. E. 201 135, 292
Rouston v. Fountain, 118 La. 53, 42 So. 644 193
Roya, Ex parte 70, 323
Ruh, Commonwealth v 174, 175
Rupard v. State, 7 Okla. Cr. App. 201, 1?2 Pac. 1108 122
Rush v. Commonwealth (Ky.), 47 S. W. 586 193
Russell, State v 338
Rust v. District Court, 162 Ta. 244, 143 N. W. 1086 199
Ruston v. Fountain, 118 La. 53, 42 So. 644 107
Ryan v. People (Colo.), 180 Pac. 84 402
Ryan, State v 115, 363, 434
xxxii TABLE OF CASES CITED
Saddler v. State, 148 Ga. 462, 97 S. E. 79 - 131
Sadler v. State, 165 Ala. 109, 51 So. 564 371
Saleeby, Dillon v €9
Salley Alton v 173
Salley, State v 459
Salvador v. State, 79 Tex. Cr. App. 343, 185 S. W. 12 84, 292, 412
Sanders v. State (Ala. App.), 79 So. 312 118
Sanders v. State, 115 Ark. 376, 171 S. W. 142 363, 375
Sangfield v. State, 18 Ga. App. 680, 90 S. E. 352 321
Sapp v. State, 2 Ala. App. 190, 56 So. 45 298, 368, 369
Sarlin, State v 134, 251, 253
Sarlls v. United States, 152 U. S. 570, 14 Sup. Ct. 720, 38 L. Ed.
556 80
Sasser v. State, 73 Tex. Cr. App. 539, 166 S. W. 1160 400
Sawyer v. Blakely, 2 Ga. App. 159, 58 S. E. 399 448
Schave v. State, 4 Okla. Cr. App. 285, 111 Pac. 962 258
Schmauder United States v 75, 76, 82, 88, 89, 90, 270, 282, 346
Schmidt, State v 270, 453
Schmidt Brewing Co. v. United States (C. C. A.), 254 Fed. 695,
696 159
Schmitt v. Cook Brewing Co (Ind.), 120 N. E. 19, 22. .62, 63, 67, 80, 144
Schoppe, State v 223
Schulmeyer v. State (Ind.), 124 N. E. 490 258, 432
Schweiter, State v 265
Scoggin v. Morrilton, 124 Ark. 585, 187 S. W. 445 349, 433, 440
Scoggins v. United States (C. C. A.), 255 Fed. 825 202, 350,
441, 442
Scott v. State, 150 Ala. 59, 43 So. 181 371
Scott v. State, 3 Ala. App. 142, 57 So. 413 103, 113, 242
Scott v. State, 18 Ga. App. 309, 89 S. E. 349 347, 348
Scott v. State, 37 N. D. 90, 163 N. W. 813 168
Scott v. State, 70 Tex. Cr. App. 57, 153 S. W. 871 296
Seaboard Air-Line R. Co., State v 62, 154, 464, 465
Seaboard Air Line Railway v. North Carolina, 245 U. S. 298, 38
Sup. Ct. 96, 62 L. Ed. 299 60, 61, 68
Seaboard Air Line Railway v. State (Ga. App.), 97 S. E. 549
206, 426
Seabrooks v. Macon, 17 Ga. App. 348, 86 S. E. 781 448
Seahorn, State v 308
Sears, Bird v 330, 449, 454
Seattle v. Brookins, 98 Wash. 290, 167 Pac. 940 390
Seattle v. Foster, 47 Wash. 172, 91 Pac. 642 96
Seattle v. Hewetson, 95 Wash. 612, 164 Pac. 234 424, 430
Seattle Brewing, etc., Co., Stratford v 60
See, State v 169, 315
TABLE OF CASES CITED xxxiii
Sellers, Farmer v 210, 211
Sellers v. State, 11 Okla. Cr. App. 588, 149 Pac. 1071 333, 336
Sewell v. State, 11 Ga. App. 754, 75 S. E. 1135 443
Shaneyfelt v. State, 8 Ala. App. 370, 62 So. 331 92, 367, 436
Sharpe v. State (Okla.), 181 Pac. 293 220
Shaw v. Atlanta, 11 Ga. App. 391, 75 S. E. 486 435
Shaw v. State, 3 Ga. App. 607, 60 S. E. 326 347
Shawnee Nat. Bank v. United States, 161 C. C. A. 509, 249 Fed.
583 217, 219, 226, 227, 233
Shelton, State v 354
Shepherd v. State, 76 Tex. Cr. App. 307, 174 S. W. 609 305, 375
Shideler v. Naughton, 163 la. 616, 145 N. W. 280 188
Shideler v. Tribe of Sioux, 158 la. 417, 139 N. W. 897 134, 189
Shiflett v. Commonwealth, 114 Va. 876, 77 S. E. 606 262
Shivers v. State, 7 Ala. App. 110, 61 So. 467 250
Shivers, State v 250
Shreveport v. Maroun, 134 La. 490, 64 So. 388 107, 193
Sickel v. Comonwealth (Va.), 97 S. E. 783 247, 258, 465
Sickel v. Commonwealth (Va.), 99 S. E. 678 98, 127, 249
Silka, State v 187, 188, 189
Sills v. State, 76 Ala. 92 245
Silva v. State, 11 Okla. Cr. App. 12, 141 Pac. 235 433
Silver, People v 298, 433
Silz v. Hesterburg, 211 U. S. 31, 29 Sup. Ct. 10, 53 L. Ed. 75 61
Simmerson, State v 134
Simmons & Co., Thompson v 186
Simons, State v 134, 377, 378, 379
Simpson v. Eastman, 16 Ga. App. 185, 84 S. E. 721 347, 348
Simpson v. State (Okla. Cr. App.), 173 Pac. 529 109
Simpson, United States v 122, 249
Sixo, State v 333
Skelton, Thornton v 192, 223, 352,353
Skermetta v. State, 104 Miss. 233, 61 So. 305 105
Skinner v. Thomas, 171 N. C. 98, 85 S, E. 976, L. R. A. 1916E,
338n 215, 226
Skoglund, Fisher v 181, 190
Slaten v. State, 10 Ala. App. 185, 65 So. 85 442
Slaughter v. State, 17 Ga. App. 332, 86 S. E. 741 347
Small, State v 166, 357
Smiling v. United States (C. C. A.), 258 Fed. 235 438
Smith, Griffin v 229, 230
Smith, Raymert v 197
Smith v. Spencer-Dowler Co. (Ga. App.), 100 S. E. 651 220
Smith v. State, 155 Ala. 102, 46 So. 753 245
Smith v. State, 2 Ala. App. 216, 56 So. 39 371
Smith v. State, 9 Ga. App. 230, 70 S. E. 969 440
xxxiv TABLE OF CASES CITED
Smith v. State, 12 Ga. App. 482, 77 S. E. 651 392
Smith v. State, 14 Ga. App. 577, 81 S. E. 801 322, 343, 347
Smith v. State, 17 Ga. App. 118, 86 S. E. 283 84
Smith v. State, 21 Ga. App. 143, 94 S. E. 62 431
Smith v. State (Okla. Cr. App.), 181 Pac. 942 126, 409, 410
Smith v. State (Okla. Cr. App.), 182 Pac. 730 446
Smith, State v 237, 264, 267, 318, 323, 326
Snead v. State, 7 Ala. App. 118, 61 So. 473 436
Snead v. State, 134 Ark. 303, 203 S. W. 703 344
Snearley, Batten v 188
Snell, State v 151
Snider v. State, 59 Ala. 64 398
Snidery. State, 81 Ga. 753, 7 S. E. 613, 12 Am. St. Rep. 350 88
Soucie, State v 210
Southern Exp. Co., Black v 66
Southern Exp. Co. v. Commonwealth, 177 Ky. 767, 198 S. W.
207 240
Southern Exp. Co., Commonwealth v 154
Southern Exp. Co., Hudgens v 157
Southern Exp. Co., Perry v 129
Southern Exp. Co. v. State, 188 Ala. 454, 66 So. 115 121, 155,
156, 160, 185
Southern Exp. Co. v. State, 1 Ga. App. 700, 58 S. E. 67 252
Southern Exp. Co. v. State (Ga. App.), 97 S. E. 550 294, 452
Southern Exp. Co. v. State (Ga. App.), 100 S. E. 109 122
Southern Exp. Co. v. State (Ga. App.), 100 S. E. 791 122
Southern Exp. Co., State v 160, 203, 228
Southern Exp. Co. v. Whittle, 194 Ala. 406, 423, 69 So. 652, L.
R. A. 1916-C, 278 65, 334
Southern Pac. Co. v. Jensen, 244 U. S. 205, 217, 37 Sup. Ct. 524,
61 L. Ed. 1086, Ann. Cas. 1917E, 900 65
Southern Products Co. v. Franklin, etc., Co., 183 Ind. 123, 124,
106 N. E. 872 432
Spain, State v 266
Spencer — Dowler Co., Smith v 220
Spigener v. State, 11 Ala. App. 296, 66 So. 896 241, 287, 370,
403, 405. 428
Spirituous Liquors, State v 223
Sponnick v. Duluth, 123 Minn. 528, 143 N. W. 970 230
Springer v. State, 126 Ark. 223, 190 S. W. 101 422
Springer v. State, 129 Ark. 106, 195 S. W. 376 264, 419, 422
Standard Brewery, United States v 270
Stanley, State v 107, 257, 389, 403
Stapleton, Phillips v 222
Stapleton v. State, 19 Ga. App. 36, 90 S. E. 1029 290
Starr v. State, 12 Ga. App. 360, 77 S. E. 205 347, 348
TABLE OF CASES CITED xxxv
State, Aaron v 121, 336, 339
State, Abbott v 87, 410, 458
State v. Advertiser Co. (Ala.), 77 So. 758 164
State, Advertiser Co. v 162
State v. Agalos (N. H.), 107 Atl. 314 86, 212, 355
State v. Alderman (la.), 174 N. W. 30 120, 326
State, Alexander v 113, 260, 313, 327, 415
State v. Allen, 161 N. C. 226, 75 S. E. 1082 275
State, Allison v 252, 288, 356, 398, 403, 407
State v. Allston, 107 S. C. 485, 93 S. E. 177 122
State, Amonett v 306, 360, 361, 375, 456, 460
State, Anderson v 114, 364
State, Armington & Sons v 228, 459
State v. Arsenault, 106 Me. 192, 76 Atl. 410 238, 241, 283
State v. Atwood, 166 N. C. 438, 81 S. E. 318 317
State, Autrey v 322, 325, 359, 440, 446
State v. Avicolli (Vt.), 102 Atl. 1037, 1038 397
State, Baca v 277, 452
State v. Bachtold (Wash.), 180 Pac. 896 244, 445, 449
State. Bacot v 377
State v. Bailey, 168 N. C. 168, 83 S. E. 711 343, 347
State, Bain v 114
State v. Baldwin (N. C.), 100 S. E. 345 289, 329, 392, 445
State v. Baldwin (N. C.), 100 S. E. 348 286, 290, 291, 378
State v. Baltimore, etc., R. Co., 78 W. Va. 526, 89 S. E. 288, L.
R. A. 1916F, 1001 173, 179, 184
State. Banks v 133
State, Barbour v 131, 299, 300, 309, 329
State, Barksdale v 325
State, Barnhill v 454
State v. Barr, 84 Vt. 38, 77 Atl. 914, 48 L. R. A., N. S., 302n
85, 364, 379
State z: Bartow, 95 Wash. 480, 164 Pac. 227 241, 249
State z: Bass Pub. Co., 104 Me. 288, 71 Atl. 894, 20 L. R. A., N.
S., 495 ..• 96, 164
State v. Bates, 168 Mo. App. 365, 127 S. W. 79 239
State, Battle v 139
State, Baumgartner v 115, 302, 354, 363, 462
State, Beaty v 387
State v. Becker, 20 la. 438 265
State, Beiser v 137
State, Belchner v 445
State, Benton v 343
State v. Berger, 97 Kan. 366, 155 Pac. 40 240
State, Berry v 371, 41C, 417
State v. Billingsley, 99 Wash. 445, 169 Pac. 845 306, 378.
389, 408, 426
xxxvi TABLE OF CASES CITED
State, Billingsley v 382
State, Bird v 240, 306, 367, 368, 369, 441, 457
State, Bishop v 328, 3S3, 384
State, Black v 197
State, Blackburn v 102, 110
State v. Blackwell, 103 Wash. 337, 174 Pac. 646 334
State v. Blauntic, 170 N. C. 749, 87 S. E. 101 203, 419, 421
State v. Brodecker, 11 Wash. 417, 39 Pac. 645 265
State, Bondurant v 378
State, Bonner v 396
State, Boos v : 108
State v. Bossingham, 35 S. D. 355, 152 N. W. 285 174
State v. Boynton, 155 N. C. 456, 71 S. E. 341 304, 383, 403
State, Braden v 325
State v. Bradford (Mo. App.), 195 S. W. 523 239
State v. Bradley, 109 S. C. 411, 96 S. E. 142 132, 342, 343, 344, 425
State, Bragg v 109, 419, 455
State, Brantley v 114
State, Brandy v 413
State, Braxton v 373, 443
State, Bridgeforth v 112, 389
State, Brigman v 391, 419, 458
State, Brittain v 271
State, Brocks v 205
State, Brokhaus v 306
State, Brooks v 293, 299, 301, 302, 303, 413
State, Browder v 453
State v. Brown(Mo. App.), 198 S. W. 177 266
State, Brown v 74, 82, 91, 132, 140, 273
State v. Buchman, 2 Bbyce's (25 Del.), 591, 83 Atl. 938 146
State, Bundy v 273, 329, 407
State v. Bunker (Mo. App.), 206 S. W. 399 334, 342
State v. Burchfield, 149 N. C. 537, 63 S. E. 80, 16 Ann. Cas. 555.
116
State, Burgan v 224, 230, 279, 329
State, Burton v 125, 126
State v. Busick, 90 Ore. 466, 177 Pac. 64 115, 268, 403, 404
State v. Butler (la.), 173 N. W. 239.. 292, 319, 323, 336, 382, 449, 453
State v. Butler (N. C.), 98 S. E. 821 401, 402
State, Butler v 341
State, Caffee v .' 334, 336, 337
State, Cage v 431, 440
State, Cagle v 458
State, Calhoun v 388
State, Campbell v 334, 429
State, Canales v 375, 434
TABLE OF CASES CITED xxxvii
State, Cannington v 456
State v. Cardwell, 166 N. C. 309, 81 S. E. 628 104, 287, 362
State, Carl v 413
State, Carleton v 345
State, Carmichael v 447
State, Carrico v 452
State, Carson v 93, 366, 459
State, Carswell v 84, 435
State, Carter v 264, 438
State, Carty v 280
State, Cashin v 243
State, Cassidy v 281
State v. Cathey, 170 N. C. 794, 87 S. E. 532 208, 401
State v. Centennial Brewing Co. (Mont.), 179 Pac. 296, 297.. 80,
83, 87, 93
State v. Ceresa (Vt.), 102 Atl. 1040 397, 398
State v. Certain Appurtenances Used in Sale of Intoxicating
Liquors, 46 Okla. 538, 149 Pac. 130 219
State v. Certain Intoxicating Liquors (Utah), 172 Pac. 1050,
1052 71, 136
State v. Certain Intoxicating Liquors (Utah), 177 Pac. 235.. 217, 228
State v. Chamberlain, 180 la. 685, 163 N. W. 428, 429 147
State, Chance v 296, 3O5
State, Cheek v 210, 400, 428, 429
State v. Chicago, etc., R. Co. (Mo. App.), 191 S. W. 1051 174
State v. Chicco, 82 S. C. 122, 63 S. E. 306 183
State, Chronister v 250, 288
State v. Cipra, 92 Kan. 591, 141 Pac. 1133 172
State v. Clancy, 97 Wash. 410, 166 Pac. 778 235
State v. Clark, 124 La. 965, 50 So. 811 345. 414
State v. Clark (Mo. App.), 203 S. W. 627 455
State, Clark v 415, 419, 421
State, Claunch v 66, 93
State v. Clifford, 88 N. J. L. 458, 97 Atl. 57 324
State, Coates v 419, 420, 461
State, Coats v 85, 329, 355
State, Cochran v 99
State, Cockran v 237
State, Cohen v 281
State, Cole v 245, 254, 387, 393, 396
State, Coleman v 103, 210, 211
State, Collotta v 175
State v. Compton, 94 Kan. 642, 146 Pac. 1161 312
State, Condit v 113, 309, 434
State, Conley v 265, 336, 382, 449
State v. Conner (Wash.), 182 Pac. 602 445
xxxviii TABLE OF CASES CITED
State, Cook v 106
State v. Cool, 66 W. Va. 86, 66 S. E. 740 414
State v. Cooper (N. J. Sup.), 107 Atl. 149 257
State, Cooper v 90, 140, 151, 346, 351, 354
State, Corley v 255
State. Correlis v 70
State v. Country Club (Tex. Civ. App.), 173 S. W. 570 137
State, Country Club v 134, 180
State v. Coverdale 1 Boyce's (24 Del.) 555, 77 Atl. 754.. 92, 345,
346, 380
State, Cowart v 347, 348, 441
State, Cowley v 296
State v. Cox, 91 Ore. 518, 197 Pac. 575 139, 354, 355
State, Cox v 226
State, Craig v 387, 393
State, Crapp v 221
State, Cravey v 389
State, Crawley v 110
State v. Crider, 180 Mo. App. 77, 168, S. W. 315 268
State, Cripe v 88, 344
State v. Cumberland, 112 Me. 196, 91 Atl. 911 179
State, Cunningham v 252
State, Cureton v 62, 131
State, Curry v 245, 358, 403, 405
State v. Curtwright, 134 Mo. App. 588, 114 S. W. 1146 266
State, Dalton v 325
State, D'Amico v 102, 383, 384
State, Dantzler v 105
State, Darneal v 102
State v. Davis (Okla.), 178 Pac. 676 218
State v. Davis (Utah), 184 Pac. 161 220, 226, 227
State v. Davis, 68 W. Va. 142, 69 S. E. 639, Ann. Cas. 1912A,
996, 32 L. R. A., N. S., 501 148, 149, 150, 151, 352
State v. Davis, 68 W. Va. 184, 69 S. E. 644 261, 265
State v. Davis, 77 W. Va. 271, 87 S. E. 262, L. R. A. 1917C, 639.
62, 163
State, Davis v 133, 253, 440, 445
State, Deal v 102, 135, 444
State, Dean v 113, 264, 365, 383, 384, 461
State v. Decker, 75 W. Va. 565, 84 S. E. 376 165
State, Dees v 91, 252, 333
State, Dent v 344
State v. Denton, 154 N. C. 641, 70 S. E. 830 110, 111, 455
State v. Denton, 164 N. C. 530, 80 S. E. 401 63, 202
State v. Dereiko (Wash.), 182 Pac. 597 271, 308, 376
State v. Dick & Bros. Quincy Brewing Co., 270 Mo. 100, 192 S.
W. 1022, L. R. A. 1917D, 1023m 176
TABLE OF CASES CITED xxxix
State, Dinkins v &5
State v. District Court, 176 la. 178, 157 N. W. 737 197, 198
State v. District Court, 24 Mont. 33, 60 Pac. 493 197
State v. District Court, 54 Mont. 580, 172 Pac. 539 200
State, Donaldson v 92, 365, 441
State v. Donovan (Wash.), 183 Pac. 127 72
State, Donovan v 256
State v. Doremus, 137 La. 266, 68 So. 605 209
State, Doss v 458
State, Doublin v '. 318
State v. Donicet, 136 La. 180, 66 So. 772 246, 357
State, Dozier v 318
State V. Duff, 81 W. Va. 407, 94 S. E. 498 247, 267, 268, 282
State. Dunbar v 319, 320
State, Duncan v 229
State v. Dunn, 158 N. C. 654, 74 S. E. 359 267
State, Dunn v 301, 341, 419, 421, 422
State v. Durien, 70 Kan. 1, 78 Pac. 152, 15 L. R. A., N. S., 908. . 62
State, Duren v 314
State v. Durr, 69 W. Va. 251, 71 S. E. 767, 46 L. R. A., N. S.,
764 417, 436
State, Earp v .245, 265
State, Echols v 255, 278
State v. Eden, 92 Wash. 1, 158 Pac. 967, 159 Pac. 700 207
State, Edenfield v 461
State, Edmunds v 373
State, Edwards v 98, 125
State, Elder v 66
State v. Elliott, 138 La. 457, 70 So. 473, 474 280
State, Elliott v 108, 309, 403, 404
State, Ellis v ..296, b«>5
State v. Elmore (Mo. App.), 189 S. W. 612 102
State v. Emonds (Wash.), 182 Pac. 584 145, 376
State, Engman v 367
State, Estes v 84
State v. Fabbri, 98 Wash. 207, 167 Pac. 133, L. R. A. 1918A,
416 62, 67, 99, 101
State, Fahnestock v 253
State, Fair v 391
State v. Fargo Bottling Works Co., 19 N. D. 396, 124 N. W.
387, 26 L. R. A., N. S-, 872n 62
State, Farmer v 347, 348
State v. Ferris, 142 La. 198, 76 So. 608 117, 423
State, Files v 103, 327, 328, 352, 370, 462
State, Finch v 106, 264, 440
State, Findley v 321
State v. Finlayson (N. D.), 170 N. W. 910 196, 197
xl TABLE OF CASES CITED
State, First Nat. Bank v 218
State, Fisher v 265, 311, 313, 349, 424
State, Fitch v 60, 61, 248
State, Fletcher v 347, 424
State, Flood v 349, 433
State v. Fogg, 107 Me. 177, 77 Atl. 714 183, 187, 275
State, Ford v 57
State v. Ford Touring Car No. 1, 440, 316, 117 Me. 232, 103 Atl.
364 222, 256
State v. Fortin, 106 Me. 382, 76 Atl. 896, 21 Ann. Cas. 454 369
State v. Fountain (la.), 168 N. W. 285 280, 342, 343, 365, 393, 399
State V. Francis, 157 N. C. 612, 72 S. E. 1041 259, 320, 358
State v. Frazee (W. Va.), 97 S. E. 604 464
State v. Freeman, 162 N. C. 594, 77 S. E. 780 259, 283, 287, 318
State, Freeman v 445
State, Gable v 108
State, Gales v 372, 412
State, Gardner v 119
State, Garfield v 118
State, Gary v 396
State, Gaskins v 343, 347
State v. Gastonguay (Me.), 105 Atl. 402 176, 353, 448
State v. Geist (Mo. App.), 195 S. W. 1050 309
State v. Gens, 107 S. C. 448, 93 S. E. 139 122, 291, 328
State v. George, 136 La. 906, 67 So. 953 66
State, George v 347, 348
State v. Germain (N. D.), 170 N. W. 121 60, 67
State v. Gesell, 137 Minn. 41, 162 N. W. 683 403, 422
State, Gilliland v 138, 435
State, Gillispie v 339
State, Girder v 294
State v. Glass, 99 Kan. 159, 160 Pac. 1145 182, 190
State, Glover v 261
State, Golpi v 124, 294
State, Goodman v 432
State v. Gordon, 32 N. D. 31, 155 N. W. 59, Ann. Cas. 1918A,
442 419, 423, 424, 428
State v. Gordon (Wash.), 163 Pac. 772 153, 211
State v . Gosell, 137 Minn. 41, 162 N. W. 683 115
State, Grace v 119, 267
State, Gramlich v 251, 307
State, Grant v 343, 347
State v. Great Northern R. Co., 98 Wash. 197, 167 Pac. 103.
126, 130, 221, 222
State v. Great Northern R. Co., 101 Wash. 464, 172 Pac. 546.. 152
State v. Green, 127 La. 830, 54 So. 44 259, 260
TABLE OF CASES CITED xli
State, Gresham v 262
State, Griffin v 206, 281, 333
State v. Gross, 76 N. H. 304, 82 Atl. 533 103, 110, 367
State, Grusin v 368
State, Guarreno v 371
State, Gulf, etc., R. Co. v 64, 68, 69, 70, 72, 97, 179
State v. Gummer, 22 Wis. 411 265
State, Haar v 409, 442
State, Hale v 451, 481
State, Hall v 88, 137, 140, 257, 263, 264, 280, 410
State, Hamilton v. 113
State v. Hampton, 106 S. C. 275, 91 S. E. 314 315, 323
State v. Haney, 151 Mo. App. 251, 132 S. W. 55 266
State, Harris v 118, 244, 255, 284', 295, 323
State v. Harrison, 159 la. 67, 140 N. W. 223 191
State, Harrison v 304, 3'58, 461
State, Harwell v 355, 363, 383, 384, 411, 462
State v. Hastings, 2 Boyce (Del.) 482, 81 Atl. 403 108, 138,
140, 147, 351, 379
State, Hawkins v 256
State, Hayes v 419
State, Haymond v 256
State, Haynes v 119
State v. Hays, 38 S. D. 546, 162 N. W. 311 106, 350, 416, 442
State, Head v 315
State, Heier v 321
State v. Heldt, 41 Tex. 220 265
State, Hemmelwiet v 321
State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A. 1917B,
962n 62, 80, 81, 82, 83, 93, 94, 345
State, Hendrix v 133, 296, 299, 300, 445
State, Hendry v 306
State, Henley v 368, 369, 373
State v. Henry, 74 W. Va. 72, 81 S. E. 569 293, 325, 365
State, Herman v 397, 398
State, Herring v 254, 287, 417, 423, 424, 427
State, Hicks v 72, 73, 374
State, Higgins v 381
State, High v 382, 445, 451
State, Hightower v 118
State, Hill v Ill, 137, 304, 404
State, Kinsman v 289
State, Hodge v 417, 423
State v. Hoffman (Ore.), 166 Pac. 765 169, 434
State, Holden v , 442
State v. Holland, 99 Wash. 645, 170 Pac. 332 147, 408
xlii TABLE OF CASES CITED
State v. Hollingsworth, 134 La. 554, 64 So. 409 365
State, Hollingsworth v 441
State, Hollingworth v 454
State, Holmes v 297, 366, 383, 402, 397, 458
State, Holt v 238, 243, 354, 422
State v. Horner, 174 N. C. 788, 94 S. E. 291 100, 101, 301, 439
State, Horton v 104
State, Howard v 84, 86, 206
State, Howze v 371
State, Huff v 336
State, Huggins v 434
State v. Hughes (Ala.), 82 So. 104 228
State, Hughes v 358
State, Humphrey v 140
State, In re 180, 207
State v. Intoxicating Liquors, 110 Me. 260, 85 Atl. 1060 210
State v. Intoxicating Liquors, 112 Me. 138, 91 Atl. 175 224, 231
State v. Intoxicating Liquors, 112 Me. 220, 91 Atl. 947 231
State v. Intoxicating Liquors, 112 Me. 393, 92 Atl. 326 230
State v. Intoxicating Liquor, 82 Vt. 287, 73 Atl. 586 216, 225
State v. Intoxicating Liquors and Vessels (Me.), 106 Atl. 711.
85, 86, 139
State v. Intoxicating Liquors and Vessels (Me.), 106 Atl. 771.. 355
State, Jackson v 64, 71, 131, 259, 347, 357, 383, 386, 423, 443
State v. Jamison (Mo. App.), 199 S. W. 713 104
State v. Jaques, 68 Mo. 260 265, 266
State v. Jarvis (la.), 165 N. W. 61 167, 168, 334, 335, 353, 447
State v. Jenkins, 64 N. H. 375, 10 Atl. 699 66
State, Jenkins v 205, 276, 438
State v. Jenson (Utah), 184 Pac. 179 215, 226
State v. John, 129 La. 208, 55 So. 766 250, 2-64, 268, 274
State, Johns v 447
State, Johnson Z/..61, 116, 119, 251, 292, 310, 347, 411, 413, 415, 446 450
State v. Jones, 115 Me. 200, 98 Atl. 659 357
State v. Jones (Mo.), 209 S. W. 876, 877 176
State v. Jones, 174 N. C. 709, 95 S. E. 376 100
State, Jones v 118, 206, 208, 247, 252, 347, 451
State v. Jones-Hansen-Cadillac Co. (Neb.), 172 N. W. 3'6..96,
170, 218, 220
State v. Julius, 29 S. D. 638, 137 N. W. '590 150, 274, 360
State v. Kapicsky, 105 Me. 127, 73 Atl. 830, 23 L. 'R. A., N. S.,
737 168, 178
State v. Kasiska, 27 Idaho 548, 150 Pac. 17 180
States. Kelly, 89 S. E. 303, 71 S. E. 987 271, 287, 359
State, Kelley v 244, 259, 263
State, Kemp v 294, 310
TABLE OF CASES CITED xliii
State, Kendrick v Ill
State, Kerney v 372
State v. Kiefer, 172 la. 306, 151 N. W. 440 176, 449
State v. Killeen (N. H.), 107 Atl. 601 85, 355, 426
State v. Killian (N. C.), 101 S. E. 109 100, 322
State, Killough v 261
State, Kindrix v 462
State v. King, 92 Kan. 669, 141 Pac. 247 273
State, Kirk v 278, 381. 382, 399
State, Kirkpatrick v 164
State v. Kirkwood Leisure Hours Social, etc., Club (Mo.
App.), 187 S. W. 819 174
State v. Klein (la.), 174 N. W. 481 86, 179, 355
State v. Knapp, 177 la. 278, 158 N. W. 517 169
State v. Knapp, 178 la. 25, 158 N. W. 515 186, 189, 192, 193
State, Knowles v 413
State -v. Koerner (Wash.), 175 Pac. 175, 176 265
State, Kunsberg v 66, 333
State v. Kurent (Kan.), 181 Fac. 603 .' 62
State v. Kurent (Kan.), 184 Pac. 721 199, 200, 285, 375
State v. Labrecque, 78 N. H. 182, 97 Atl. 747 66, 81
State, Lacey v 351
State v. Ladd, 15 Mo. 430 266
State, Ladson v 246
State v. Lafargue, 141 La. 936, 75 So. 998 403, 404
State, Lambie v 65
State, Land v 72, 206
State, Landers v 85
State v. Laymon (S. D.), 167 N. iW. 402 252, 403, 406
State v. Leary, 75 N. H. 459, 76 Atl. 192, 44 L. R. A., N. S.,
457n 188
State, Lebrecht v 220
State v. Lee, 164 N. C. 533, 80 S. E. 405 203
State, Lee v 326
State v. Legendre, 89 Vt. 526, 96 Atl. 9 109, 386
State v. Leonard (Mo. App.), 190 S. W. 957 266
State v. Lesh, 27 N. D. 165, 145 N. W. 829 149, 261, 283
State, Lester v 263
State, Lewis v 84, 269, 446
State v. Lieber, 143 La. 158, 78 So. 431 121, 286
State v. Li Fieri (Del.), 102 Atl. 77 254, 269
State, Lindsay v 388 450
State, Lippman -v 222
State, Liquor Transp. Cases v 120, 123, 124, 130, 258, 277
State v. Little, 171 N. C. 805, 88 S. E. 723 362
State, Littlefield v Ill, 320
xliv TABLE OF CASES CITED
State, Littleton v 372, 4O2
State, Lochinar v 103
State, Loeb v 103
State, Longmire v 64, 248
State, Looper v 434
State, Lopez v 109
State, Loudermilk v 318, 368, 369
State, Louisville, etc., R. Co. v 66
State v. Lovell, 47 Vt. 493 62
State, Lowery v 99, 296, 408, 429
State v. Lunsford, 150 N. C. 862, 64 S. E. 765 274
State, Lupo v 106
State, Luther v 66
State v. Lynch, 5 Boyce's (28 Del.) 569, 96 Atl. 32 93
State, Lynn v 456
State v. Lyon, 83 S. C. 509, 65 S. E. 730 172, 173, 181
State v. Lyons (Mo. App.), 215 S. W. 484 402
State, McAdams v 247, 251, 252
State, McAlester v 370, 443, 450
State, McAllister v 143, 276, 352, 389, 429
State v. McCasky, 97 Wash. 401, 166 Pac. 1163 149, 382, 386
State v. McCowen (Mo. App.), 189 S. W. 618 351, 362
State, McCruen v 386
State v. Macek, 104 Kan. 742, 180 Pac. 985 62, 257, 272, 285
State, McElwee v 360
State, M|cGee v 298
State, McGovern v 347
State v. McGuire, 139 La. 88, 71 So. 239 356
State, Mclntosh v 371
State, Mack v 343. 347
State v. McKone, 31 N. D. 547, 154 N. W. 256 419, 420
State, McNeal v 123, 240, 258
State, McNeil v 246
State v. Maguire, 31 Idaho 24, 169 Pac. 175 167, 187, 425
State, Maisel v 326, 336
State, Malick v 316, 346
State, Malone v 311
State v. Manship, 174 N. C. 798, 94 S. E. 2 392
State, Maples v 215, 226
State v. Marastoni, 85 Ore. 37, 165 Pac. 1177 67, 99, 101
State, Marks v 65, 80, 81, 84, 85, 86, 87, 91, 92, 94, 263, 3'55, 413
State v. Markuson, 5 N. D. 147, 64 N. W. 934 197
State v. Markuson, 7 N. D. 155, 73 N. W. 82 197
State v. Maroun, 133 La. 1083', 63 So. 593 241
State v. Marquardt (La.), 169 N. W. 338 202
State v. Marshall, 100 Miss. 626, 56 So. 729, Ann. Cas. 1914A,
434 172, 173, 182, 185
TABLE OF CASES CITED xlv
State v. Martin, 92 Wash. 3"66, 159 Pac. 88 145, 151, 232
State, Martin v 396, 409
State, Martoni v 376, 383, 385, 460
State v. Matarazza (N. J. Sup.), 107 Atl. 266 275
State v. Mathews, 115 Me. 84, 97 Atl. 824 305
State v. Mattox Cigar, etc., Co. (Ala.), 77 So. 756 66, 91
State, Maynes v 123', 240
State, Medlock v 106, 397, 398, 401
State v. Meyers, 132 Minn. 4, 155 N. W. 766 292, 302, 311
State v. Midland Aerie No. 412, Fraternal Order of Eagles,
98 Kan. 793, 161 Pac. 903 179
State v. Miller, 92 Kan. 994, 142 Pac. 979, L. R. A. 1917F, 238,
Ann. Cas. 1916B, 365 83, 84, 437
State, Mills v 383', 385
State, Milwaukee Beer Co. v 207
State v. Missouri Athletic Club (Mo.), 170 S. W. 904, 905 97
State, Mitchell v 112
State, Montgomery v 377
State, Monyean v Ill
State, Moody v 115
State v. Moore, 166 N. C. 284, 81 S. E. 294 249
State, Moore v 383, 384
State, Morris v 445
State, Morse v 416
State v. Morton, 38 S. D. 504, 162 N. W. 155 145, 146, 147. 352
State, Morton v 352
State, Moses v 359
State, Mosley v 367
State, Moss v 287
State v. Mostella, 159 N. C. 459, 74 S. E. 578 356, 416
State, Motlow v t>2
State v. Mountain City Club, 136 Tenn. (9 Thompson) 102, 188
S. W. 579 178
State v. Mull (N. C.), 101 S. E. 89 98
State v. Muller, 80 Wash. 368, 141 Pac. 910 240
State, Mulling v 347
State, Mullins v 433
State, Mundy v 293, 300, 308
State, Munn v 122
State, Murray v 291, 327, 417, 450
State, Myers v 347
State, Neal v. 317
State, Nelson v 288, 353, 354, 460
State v. Newlin (Ore.), 165 Pac. 225 364
State v. Nocolay (Mo. App.), 184 S. W. 1183 86, 147
State, Nixon v 307, 435
State, Norred v 325
xlvi TABLE OF CASES CITED
State, Nowell v 132, 444
State, O'Brien v 281
State i: O'Connell, 99 Me. 61, 58 Atl. 59 66
State v. Ogleston (N. C.), 98 b. E. 537 363, 437
State v. O'Kelley, 258 Mo. 345, 167 S. W. 980, 52 L. R. A., N.
S., 860n 151, 153
State, Oldacre v 284, 319
State, One Cadillac Automobile v 215, 220
State, One Moon Automobile v 223
State v. One Packard Automobile (Okla.), 172 Pac. 66 220
State, O'Rear v 13 1
State v. O'Toole (Me.), 108 Atl. 99 387, 388, 405
State v. Otto, 38 S. D. 353, 161 N. W. 340 275, 455
State, Overton v 378, 381
State, Page v 256, 388
State, Pappenburg v 432, 450
State, Park v 239
State, Parker v 133
State, Parks v,.\ 444
State, Pate v 445
State, Patterson v ..88, 99, 301, 381, 387, b91, 394, 414
State, Payne v 456
State, Peebles v 286, 356
State v. Peloquin, 106 Me. 358, 76 Atl. 888 261 262
State, Pennell v 66
State v. Pensacola, etc., S. S. Co. (Ala.), 75 So. 892 230, 231
State, Perdue v 290
State v. Perello, 102 Kan. 695, 171 Pac. 6oO 249
State, Perro v 222
State v. Peters, 142 La. 249, 76 So. 702 400
State, Peyton v 295, 317
State, Phelps v 460
State v. Phillips, 109 Miss. 22, 67 So. 651 93
State, Phillipps v 387
State v. Pierce, 88 Vt. 277, 92 Atl. 218 397, 398
State, Pines v 256, 264, 273
State, Pitts v 457
State, Plair v 317
State v. Pope, 79 S. C. 87, 60 S. E. 234 120, 450
State, Pope v 114, 269, 456
State, Porras v 386
State, Price v 316
State, Procter v 272
State, Proctor v 235
State v. Provencher, 135 Minn. 214, 160 N. W. 673, Ann. Cas.
1917E, 598 116
TABLE OF CASES CITED xlvii
State, Pruett v 440
State, Quinn v 3«8, 396, 450
State v. Radke, 139 Minn. 276, 166 N. W. 346 305
State, Ragan v 362, 400
State v. Ragghianti, 129 Tenn. (2 Thompson) 560, 167 S. W.
689 180, 181, 198
State v. Randall, 170 N. C. 757, 87 S. E. 227, Ann. Cas. 1918A,
438 133', 373
State v. Raph (la.), 168 N. W. 259 191, 233
State, Rash v 107, 204, 250, 335, 363
State v. Raub (Wash.), 173 Pac. 1094 431
State v. Raven, 91 S. C. 265, 74 S. E. 500 99, 100, 270
State v. Rawlings, 232 Mo. 544, 134 S. W. 530 334, 342
State, Ray v 255, 320, 361
State, Reddick v ; 370, 396, 403, 406
State, Regadanz v 253
State f. Reisen, 165 Wis. 258, 161 N. W. 747, 748 172
State, Ren v 450
State v. Reno Brewing Co. (Neb.), 178 Pac. 902 97, 177
State, Reynolds v 296, ai6, 432
State v. Richardson (Mo. App.), 182 S. W. 782 342
State, Rigrish v 256
State, Rivard v 122
State, Rabbins v 258
State, Roberts v 90, 96, 103', 205
State, Robertson v 126, 297
State, Robinson <v 295, 317, 358
State, Roden v 289, .360, 390
State v. Rogers, 80 W. Va. 680, 93 S. E. 757 168
State, Rogers v 244, 276,. 288, 3'42, 343, 389
State, Rose v 165, 166, 286
State, Rosenburg v 271, 307, 403
State v. Ross (N. D.), 170 N. W. 121 163
State v. Ross, 70 W. Va. 549, 74 S. E. 670, 39 L. R. A., N. S.,
814n 152, 377
State, Ross v 451
State, Rothschild v 135, 292
State, Rupard v 122
State v. Russel, 164 N. C. 482, 80 S. E. 66, 33-8
State v. Ryan, 1 Boyce's (Del.) 23, 75 Atl. 869 115, 344, 363
State, Saddler v 131, 371
State, Salvador v 84, 293, 412
State, Sanders v 118, 363, 375
State, Sapp v 298, 368, 3«0
State, Sangfield v 321
State v. Sarlin (Ind), 123 N. E. 800 134, 251, 253
xlviii TABLE OP CASES CITED
State, Sasser v 400
State, Schave v 258
State v. Schmidt, 92 Kan. 457, 140 Pac. 843 270, 432
State v. Schoppe, 113' Me. 10, 92 Atl. 867 223
State, Schulmeyer v 258, 432
State v. Schweiter, 27 Kan. 499 265
State, Scott v 103, 113, 168, 242, 296, 347, 348, 371
State v. Seaboard Air-Line R. Co., 169 N. C. 295, 81 S. E. 283.
62, 154, 464, 465
State, Seaboard Air Line Railway v 207, 426
State v. Seaborn, 166 N. C. 373, 81 S. E. 687 308
Stater. Lee, 177 La. 316, 158 N. W. 667 169, 315
State, Sellers v „ 333,336
State, Sewell v 44>
State, Shaneyfelt v 92, 367, 436
State, Sharpe v 220
State, Shaw v 347
State v. Shelton (la.), 169 N. W. 351 354
State, Shepherd v 305, 375
State v. Silka, 179 la. 663, 161 N. W. 703 187, 188, 189
State, Sills v 245
State, Silva v 433
State v. Simmerson (N. C.), 98 S. E. 784 134
State v. Simons (N. C), 100 S. E 239 134, 377, 378, 379
State, Simpson v 109
State v. Sixo, 77 W. Va. 243, 87 S. E. 267 333
State, Shermetta v 105
State, Staten v 442
State, Slaughter v 347
State v. Small, 80 Me. 452, 14 Atl. 942 357
State v. Small, 82 S. C. 93, 63 S. E. 4 166
State v. Smith, 96 Kan. 320, 150 Pac. 640 237
State v. Smith, 139 La. 442, 71 So. 734 264
State v. Smith (Mo. App.), 201 S. W. 942 318
State v. Smith, 89 N. J. L. 52, 97 Atl. 780 267, 323, 326
State, Smith t/..84, 126, 245, 322, 3'43, 347, 371, 392, 409, 410,
431, 440, 446
State, Snead v 344, 436
State v. Snell, 99 Wash. 195, 169 Pac. 320 151
State, Snider v 88, 398
State v. Snyder (la.), 171 N. W. 8 312
State v. Soucie, 109 Me. 251, 83 Atl. 700 210
State v. Southern Exp. Co. (Ala.), 75 So. 343. 160, 203, 228
State, Southern Exp. Co. z>..121, 122, 155, 156, 160, 185, 252, 294, 452
State v. Spain, 29 Mo. 415 266
State, Spigener v 241 287, 370, 403, 405, 428
TABLE OF CASES CITED xlix
State v. Spirituous Liquors, 75 N. H. 273, 73 Atl. 169 223
State, Springer v 264, 419, 421, 422
State f. Stanley, 38 N. D. 311, 164 N. W. 702 107, 257, 4031
State v. Stanley, 134 La. 131, 63 So. 850 3«9
State. Stapleton v 290
State, Starr v 347, 348
Slate, State Nat. Bank v 219, 223
State r. Stickney, 111 Me. 590, 90 Atl. 705 112
State, Stocks v 329
State, Stokes v 340
State, Stoner v 87
State v. Stoughton Club, 163 Wis. 362, 158 N. W. 93 180, 182
State v. Stout, 112 Ind. 245, 13 N. E. 715 253
State, Stout v 203, 299, 339, 401
State, Stover v 117
Slate, Stramler v 397, 39S
State, Strickland v 101
State, Strozier v 263, 36J
State, Stubblefield v 445
State, Sturgeon v 248, 282
State f. Sullivan, 97 Wash. 639, 166 Pac. 1123 102, 243, 292, 415
State, Sweatt v 403, 404
State v. Synder (la), 171 N. W. 8 455
State v. Taggart (la.), 172 N. W. 299 285, 324
State, Taylor v 349, 385
State, Telico v 445
State, Terretto v 69, 70, 453
State v. Terry, 128 La. 680, 55 So. 15 149
State, Thames v 370
State, Tharpe v 285
State, Thayer r 279
State, Theatrical Club v *>G
State :•. Theodore (Mo.), 191 S. W. 422 334, 343
State, Thomas v 100, 311, 392, 415, 417, 447
State, Thompson v 84
State, Thurman v 3S8
State v. Tincher, 81 W. Va. 441, 94 S. E. 503 60, 333, 334,
339, 3*1, 399
State, Tooke v 206
State, Toole v 209. 230
State v. Tooley, 107 S. C. 408, 93 S. E. 132 202, 203
State, Touchstone v 343, 347
State, Trentham v 393
State r. Trione, 97 Kan. 365, 155 Pac. 29 416, 436
State, Troutner v 140, 280
State f. Trowbridge, 112 Me. 16, 90 Atl. 494 243
— d
1 TABLE OF CASES CITED
State v. Truba, 88 Vt. 557, 93 Atl. 293 274, 35ft
State v. Tullos, 135 La. 640, 65 So. 870 145
State v. Turner, 171 N. C. 803, 88 S E. 523 392
State, Turner v 119, 285, 346
State v. Tygart (la.), 172 N. W. 299 324
State v. Tygarts Valley Brewing Co., 71 W. Va. 38, 75 S. E.
149 350
State, Untreinor v 371
State, Vance v 255, 403, 404
State v. Van Vleet (Minn.), 165 N. W. 962 403, 408
State, Van Winkle v 150
State, Voves v 283
State v. Wainscott, 169 N. C. 379, 85 S. E. 380 249, 303
State, Waldemar v 290
State, Wales v 350, 437, 442
State v. Walker, 221 Mo. 511, 120 S. W. 1198 96
State, Walker v 237, 306
State v. Walters, 178 la. 1108, 160 N. W. 821, 822.. 368, 369,
452, 459, 462
State, Walters v 108
State, Ward v 443
State, Warrick v 287, 288, 413
State v. Watkins, 164 N. C. 425, 79 S. W. 619 267
State, Watkins v 123, 12 1
State v. Watson, 92 Kan. 983, 142 Pac. 956 235, 416
State, Watson v 3«2, 419, 427
State v. Waxman (N. J. Supp.), 107 Atl. 150 98, 296, 349
State v. Webb, 36 N. D. 235, 162 N. W. 358 168, 271, 357
State, Webb v 284, 419, 421, 460
State, Weimberg v 84, 387
State v. Whalen (Wash.), 183' Pac. 130 374
State v .Wheeler, 38 N. D. 456, 165 N. W. 574, 575 177
State, White v 101, 227, 347, 435, 458
State, Whitley, v 276, 279, 350, 451
State, Whitten v 105
State v. Wilbur (Ore.), 166 Pac. 51 283, 284, 307
State, Wilburn v 84, 361
State, Wilcox v 290
State, Wiley v 72
State v. Wilkerson, 164 N. C. 431, at p. 435, 79 S. E. 888, at
p. 890 338, 344
State, Wilkins v 243, 376
State v. Willey (Del.), 108 Atl. 79 j.,2
State v. Williams, 172 N. C. 973, 90 S. E. 905 110
State, Williams v 112, 264, 303, 316, 434, 438
State, Willingham v 340
TABLE OF CASES CITED li
State v. Wills, 73 W. Va. 446, 80 S. E. 783 146
State, Wilson v 113, 118, 310, 336, 350
State, Windom v 366
State, Winfrey v 125, 247, 251, 267, 295, 361
States. Winner, 153 N. C. 602, 69 S. E. 9 110, 403, 406
State, Wolf v 347
State, Womack v 306
State, Woods v 114, 362
State, Woodward v 183, 412
State v. Woolfolk (Mo.), 190 S. W. 877 184
State, Wooten v 383, 385
State, Wozniak v 271
State, Wright v 135, 136, 413, 444
State, Wynn v 348
State, Yaughan v 235
State v. Yocum (Mo. App.), 205 S. W. 232 106, 297
State v. York, 74 N. H. 125, 127, 65 Atl. 685, 13 Ann. Cas. 116. 6*>
State, Young v 253
State v. Zagone, 13'5 La. 550, 65 So. 737 365
State v. Zehnder, 182 Mo. App. 161, 168 S. W. 661 105
State Nat. Bank v. State (Okla.), 172 Pac. 1073 219, 223
Stickney, State v 112
Stocks v. State, 19 Ga. App. 607, 91 S. E. 944 329
Stoevenor & Co., Fisher v 183
Stokes v. State, 5 Ala. App. 159, 59 So. 310 340
Stone, Commonwealth v 107
Stoner v. State, 5 Ga. App. 716, 63 S. E. 602 81
Stoughton Club, State v 180, 182
Stout v. State, 15 Ala. App. 260, 72 So. 762 203, 299, 339, 401
Stout, State v 253
Stover v. State, 19 Ariz. 308, 170 Pac. 788 117
Stramler v. State, 15 Ala. App. 600, 74 So. 727 397, 398
Stratford v. Seattle Brewing, etc., Co., 94 Wash. 125, 162 Pac.
31, L. R. A. 1917C, 931n 60
Stratton, Mead v 97
Strickland v. State, 9 Ga. App. 201, 70 S. E. 990 101
Strickler, People v 93
Strozier v. State, 127 Ark. 543, 192 S. W. 884 263, 360
Stubblefield v. State (Okla. Cr. App.), 180 Pac. 252 445
Stubblefield v. State (Okla. Cr. App.), 180 Pac. 561 445
Sturgeon v. State, 17 Ariz. 513, 154 Pac. 1050, L. R. A. 1917B,
1230 248, 260
Sue Chung Kee, People v 397
Sullivan, State v 102, 243, 292, 415
Sweatt v. State, 153 Ala. 70, 45 So. 588 403, 404
Synder, State v 312, 455
lii TABLE OF CASES CITED
Taggart, State v 285, 324
Tay, Commonwealth v 447
Taylor v. State, 5 Ga. App. 237, 62 S. E. 1048 387
Taylor v. State, 14 Ga. App. 114 80 S. E. 292 349
Taylor v. Wildman (la.), 145 N. W. 449, 451 60
Telico v. State, 13 Okla. Cr. App. 608, 166 Pac. 76 445
Terretto v. State (Tex. Cr. App.), 215 S. W. 329 69, 70, 453
Territory v. Robertson, 19 Okla. 149, 92 Pac. 144 175
Terry, State v 149
Texas, Rippey v 143
Thames v. State, 10 Ala. 210, 64 So. 648 370
Tharpe v. State (Ga. App.), 100 S. E. 754 285
Thatcher v. Reno Brewing Co. (Nev.), 178 Pac. 902.. ..61, 80, 81, 82
Thayer, Commonwealth v 441
Thayer v. State (Okla. Cr. App.), 183 Pac. 931 279
Theatrical Club v. State (Ala.), 74 So. 969 66
Theodore, State v 334, 342
Thomas, Skinner v 215, 226
Thomas v. State, 12 Ala. App. 293, 68 So. 549 311
Thomas v. State, 13 Ala. App. 246, 68 So. 799 392, 415, 417, 447
Thomas v. State (Ga. App.), 100 S. E. 760 100
Thomasville, Campbell v 87
Thompkins v. State, 2 Ga. App. 639, 58 S. E. 1111 84
Thompson v. Simmons & Co., 139 Ga. 845, 78 S. E. 419 186
Thornton v. Skelton (Ga.), 99 S. E. 299 192, 223, 352, 353
Thurman v. State, 14 Ga. App. 543, 81 S. E. 796. . . 388
Tierman, Giozza v 61
Tincher, State v 60, 333, 334, 341, 399
Tomlin v. Commonwealth (Va.), 97 S. E. 305 314
Tooke v. State, 4 Ga. App. 495, 61 S. E. 917, 918 206
Toole v. State, 170 Ala. 41, 54 So. 195 209, 230
Tooley, State v 202, 203
Touchstone v. State, 17 Ga. App. 333, 86 S. E. 744 343, 347
Trentham v. State, 22 Ga. App. 134, 95 S. E. 538 393
Tribe of the Sioux, Shideler v 134, 189
Trione, State v 416, 437
Troutner v. State, 17 Ariz. 506, 154 Pac. 1048, L. R. A. 1916D,
262 140, 280
Trowbridge, State v 243
Truba, State v 274, 356
True v. Hunter, 174 la. 442, 156 N. W. 363 334, 342
Tullos, State v 148
Turner v. State, 14 Ala. App. 29, 70 So. 971 346
Turner v. State, 13 Ark. 48, 196 S. W. 477 285
Turner v. State. 18 Ga. App. 393, 89 S. E. 538 119
TABLE OF CASES CITED liii
Turner, State v 392
Turner v. United States (C. C. A.), 259 Fed. 103 324
Tuscaloosa, Lane v 398
Tuscaloosa, Merriwether v 343
Tuttle v. Hutchison, 173' la. 503, 151 N. W. 845, 851 197
Tygart, State v 324
Tygarts Valley Brewing Co., State v 350
U
Union Nat. Bank v. Finley, 180 Ind. 470, 475, 103 N. E. 110.. 432
United States v. Baumgartner (D. C.), 259 Fed. 722 75, 85, 89, 270
United States, Berryman v 129, 453
United States, Biandi v 399, 400
United States, Bishop v 127, 362, 380, 451
United States, Blackman v 323
United States, Bradley v 451
United States, Bullard v 297, 305, 315
United States, Butterfield v 65
United States r. Cerecedo Hermanos Y. Compania, 209 U. S.
337, 339, 2-8 Sup. Ct. 532, 52 L. Ed. 821 90
United States, Cihok v 414
United States v. Collins (D. C.), 254 Fed. 869 99, 126, 128, 129
United States, De Moss v 67, 381
United States, Dosset v 278, 294, 300
United States v. Ellis (D. C.), 51 Fed. 808 80
United States, Faraone v 409
United States, Fetters v 282, 366
United States, Ford v 378
United States, Goldstein v 282
United States v. Gudger, 249 U. S. 373, 39 Sup. Ct. 323, 63 L.
Ed 129
United States, Guignard v 436, 439
United States v. Hill, 248 U. S. 420, 39 S. Ct. 143 68, 129
United States v. Hillsdale Distillery Co. (D. C.), 242 Fed. 536
159, 268
United States v. James (D. C.), 256 Fed. 102 64, 67, 68
United States, Jones v 127
United States, Komada & Co. v 90
United States, Laughter v 121, 128, 432
United States v. Luther (D. C.), 260 Fed. 579 124, 250, 259
United States, McKnight v 157
United States, Malcolm v 258, 378
United States, Mayer v 246
United States v. Minery (D. C.), 259 Fed. 707 75, 76
United States v. One Buick Automobile (D. C.), 255 Fed. 7&3. 217
United States v. One Cadillac Eight Automobile (D. C.). 255
Fed. 173... 211
liv TABLE OF CASES CITED
United States v. One Ford Automobile (D. C), 259 Fed. 894. 216
United States v. One Ford Five Passenger Automobile (D. C.),
259 Fed. 645 220
United States v. One Seven Passenger Paige Car (D. C.), 259
Fed. 641 227
United States, Preyer v 129
United States v. Ranier Brewing Co. (D. C.), 259 Fed. 350 89
United States v. Ranier Brewing Co. (D. C.), 259 Fed. 359 75
United States, Robilio v 400, 432, 453
United States, Sarlls v 80
United States v. Schmauder (D. C.), 258 Fed. 251.. 75, 76, 82,
88, 89, 90, 270, 282, 346
United States, Schmidt Brewing Co. v 159
United States, Scoggins v 350, 441, 442
United States, Scroggins v 102
United States, Shawnee Nat. Bank v 217, 219, 226, 227. 233
United States v. Simpson (D. C.), 257 Fed. 860 122, 249
United States, Smiling v 438
United States v. Standard Brewery (D. C.), 260 Fed. 486 270
United States, Turner v 324
United States, Villers v 454
United States, Weems v 450
United States, Williams v 330
United States, Young v 249, 357
Untreinor v. State, 146 Ala. 133, 41 So. 170 371
V
Van Bug Fish Co. v. Herstrom (Wash.), 177 Pac. 334, 335.. 219
Vance v. State, 80 Tex. Cr. App. 177, 190 S. W. 176 255, 403
Van Deman, etc., Co., Rast v 61
Van Pelt, Marasso v 69
Van Vleet, State v....: 403, 408
Van Winkle v. State, 4 Boyce's (27 Del.) 578, 91 Atl. 385 150
Villers v. United States (C. C. A.), 255 Fed. 75 454
Voves v. States, 161 C. C. A. 227, 249 Fed. 191 283
W
Wachal v. Davis, 145 N. W. 867 148
Wainscott, State v 249, 302
Waldemar v. State, 21 Ga. App. 504, 94 S. E. 624, 625 290
Wales v. State (Tex. Cr. App.), 212 S. W. 503 350. 437. 442
Walker v. State (Ala. App.), 81 So. 179 237, 366
Walker, State v 96
Wallace, Emsweller v 212, 272
Walters v. State, 174 Ind. 545, 92 N. E. 537 108
Walters, State v 368, 369, 452, 459, 462
Ward v. State (Okla. Cr. App.), 175 Pac. 60 443
TABLE OF CASES CITED Iv
Warrick v. State, 8 Ala. App. 391, 62 So. 342 287, 288, 413
Washington, Butler v 431
Watkins v. State, 13 Okla. Cr. App. 507, 165 Pac. 621 123, 124
Watkins, State v 264
Watkins v. Wilkerson, 141 Ga. 163, 80 S. E. 71S, Ann. Cas.
1915C, 1124 191
Watson v. State, 8 Ala. App. 414, 62 So. 997 382, 419
Watson v. State, 11 Ala. App. 199, 65 So. 689 427
Watson, State v 235, 416
Waxman, State v 98, 296, 349
Waycross, Highsmith v 347
Webb v. State (Ark.), 212 S. W. 567 460
Webb v. State, 13 Ga. App. 733, 80 S. E. 14 284, 419, 421
Webb, State v 168, 270, 357
Weems v. United States (C. C. A.), 257 Fed. 57 450
Weinberg v. State, 81 Tex. Cr. App. 306, 194 S. W. 116 84, 387
Wells v. District Court, 126 la. 340, 102 N. W. 106 197
Wells Fargo & Co. Exp., McAdams v 128
Westbrook, Ex parte 125, 128
Westbrook, Mack v 60, 61, 215, 221, 223
Western Maryland R. Co., Clark Distilling Co. z>...60, 61, 65,
68, 464, 465
Whalen, State v 374
Wheeler, People v 60, 204
Wheeler, State v 177
White, Commonwealth v 118
White, Le Clair v 333
White v. State, 93 Ga. 47, 19 S. E. 49 347, 458
White v. State, 18 Ga. App. 214, 89 S. E. 175 101
White v. State (Ga. App.), 98 S. E. 171 227
White v. State, 88 Neb. 177, 129 N. W. 259 435
Whitley v. State (Ark.), 215 S. W. 331 276
Whitley v. State (Ark.), 215 S. W. 703 279, 451
Whitley v. State, 14 Ga. App. 577, 81 S. E. 797 350
Whitlock, Monumental Brewing Co 104
Whitten v. State, 75 Tex. Cr. App. 225, 170 S. W. 718 105
Whittle, Southern Exp. Co. v 65, 334
Wilbur, State v 284, 307
Wilburn v. State, 8 Ga. App. 28, 68 S. E. 460 84, 361
Wilcox v. State, 19 Ga. App. 83, 90 S. E. 1032 290
Wildman, Taylor v 60
Wiley v. State (Ala.), 81 So. 343 72
Wilkerson v. Commonwealth, 122 Va. 920, 95 S. E. 388 244
Wilkerson, State v 338, 344
Wilkerson, Watkins v 191
Wilkins v. State (Fla.), 78 So. 523 243, 376
Willey, State v 132
Ivi TABLE OP CASES CITED
Williams v. State, 129 Ark. 344, 196 S. W. 125 112, 434
Williams v. State, 89 Ga. 438, 15 S. E. 552 264
Williams v. State (Ga. App.), 99 S. E. 711 303, 316
Williams v. State (Ga. App.), 100 S. E. 763 438
Williams, State v 110
Williams v. United States (C. C. A.), 254 Fed. 48 330
Willingham v. State, 11 Ala. App. 205, 65 So. 847 340
Wills, State v 146
Wilson v. Commonwealth, 181 Ky. 370, 205 S. W. 39-1.. 342, 419, 447
Wilson v. New, 243 U. S. 332, 346, 37 Sup. Ct. 298, 61 L. Ed.
755, L,. R. A. 1917E, 938 65
Wilson v. State, 114 Ark. 574, 169 S. W. 795 113
Wilson v. State, 130 Ark. 204, 196 S. W. 921 118, 310, 350
Wilson v. State, 11 Okla. Cr. App. 510, 148 Pac. 823 336
Windom v. State, 19 Ga. App. 452, 91 S. E. 911 366
Winfrey v. State, 133 Ark. 357, 202 S. W. 23.. 125, 247, 251, 267,
295, 361
Winner, State v 110, 403, 406
Wittman, Ah Sin v 61
Wolf v. State, 16 Ga. App. 250, 85 S. E. 86 347
Womack v. State, 130 Okla. Cr. App. 323, 164 Pac. 477 306
Wood, Commonwealth v 357
Woods v.. Commonwealth 171 Ky. 200, 188 S. W. 350 432
Woods v. State, 114 Ark. 391, 170 S. W. 79 114, 362
Woodward, Ex parte i 65
Woodward v. State, 173 Ala. 7, 55 So. 506 183
Woodward v. State, 5 Ala. App. 202, 59 So. 688 412
Woolfolk, State v 184
Wooten v. State, 17 Ga. App. 333, 86 S. E. 740 383, 385
Wozniak v. State (Neb.), 174 N. W. 298 271
Wright v. State, 4 Ala. App. 150, 58 So. 803 413
Wright v. State, 14 Ga. App. 185, 80 S. E. 544 135, 136, 444
Wynn v. State, 11 Ga. App. 182, 65 So. 687 348
Y
Yaughan v. State, 148 Ga. 517, 97 S. E. 540 235
Yocum, State v 106, 297
York, State v 66
Young, Adams Exp. Co. v 330
Young, Cowart v 224
Young v. State (Ind.), 124 N. E. 679 253
Young v. United States, 162 C. C. A. 133, 249 Fed. 935, 936.. 249, 357
Z
Zagone, State v 365
Zamata v. Browning (Utah), 170 Pac. 1057 69
Zehnder, State v 105
Zwissig, Ex parte 206
NATIONAL PROHIBITION LAW
ANALYSIS
Manufacture
Sale
Transporta-
tion
Intoxicating
Liquors
Concurrent
Power
Ratification
Constitutional-
ity
Treated p.
56-74
CONSTITUTIONAL AMENDMENT.
ARTICLE 18.
SECTION 1. After one year from the
ratification of this article the manufac-
ture, sale or transportation of intoxicat-
ing liquors within, the importation there-
of into, or the exportation thereof from
the United States and all territory subject
to the jurisdiction thereof for beverage
purposes is hereby prohibited.
SEC. 2. The Congress and the several
States shall have concurrent power to en-
force this article by appropriate legisla-
tion.
SEC. 3. This article shall be inoperative
unless it shall have been ratified as an
amendment to the Constitution by the leg-
islatures of the several States, as provided
in the Constitution, within seven years
from the date of the submission hereof to
the States by the Congress.
Ratification was proclaimed by the
State Department, January 16, 1919.
NATIONAL PROHIBITION ACT
Title to Act
This title,
relating
solely to
War Prohibi-
tion, is
superseded
by title II
since January
16, 1920
See p. 75
LEGISLATIVE ENFOECEMENT.
AN ACT
To prohibit intoxicating beverages, and
to regulate the manufacture, produc-
tion, use, and sale of high-proof spir-
its for other than beverage purposes,
and to insure an ample supply of al-
cohol and promote its use in scientific
research and in the development of
fuel, dye, and other lawful industries.
Be it enacted by the Senate and House
of Representatives of the United States
of America in Congress assembled, That
the short title of this Act shall be the
"National Prohibition Act."
TITLE I.
TO PROVIDE FOR THE ENFORCEMENT OF WAR
PROHIBITION.
The term " War Prohibition Act" used
in this Act shall mean the provisions of
any Act or Acts prohibiting the sale and
manufacture of intoxicating liquors until
the conclusion of the present war and
thereafter until the termination of de-
mobilization, the date of which shall be
determined and proclaimed by the Presi-
dent of the United States. The words
NATIONAL PROHIBITION ACT 3
"beer, wine, or other intoxicating malt
or vinous liquors" in the War Prohibi-
tion Act shall be hereafter construed to
mean any beverages which contain one-
half of 1 per centum or more of alcohol
by volume.
SEC. 2. That the Commissioner of In-
ternal Revenue, his assistants, agents,
and inspectors, shall investigate and re-
port violations of the War Prohibition
Act to the United States attorney for the
district in which committed, who shall
be charged with the duty of prosecuting,
subject to the direction of the Attorney
General, the offenders as in the case of
other offenses against laws of the United
States; and such Commissioner of Inter-
nal Revenue, his assistants, agents, and
inspectors may swear out warrants be-
fore United States commissioners or other
officers or courts authorized to issue the
same for the apprehension of such of-
fenders, and may, subject to the control
of the said Unted States attorney, con-
duct the prosecution at the committing
trial for the purpose of having the of-
fenders held for the action of a grand
jury.
SEC. 3. Any room, house, building, boat,
vehicle, structure, or place of any kind
where intoxicating liquor is sold, manu-
factured, kept for sale, or bartered in vi-
NATIONAL PROHIBITION ACT
olation of the War Prohibition Act, and
all intoxicating liquor and all property
kept and used in maintaining such a
place, is hereby declared to be a public
and common nuisance, and any person
who maintains or assists in maintaining
such public and common nuisance shall
be guilty of a misdemeanor, and upon
conviction thereof shall be fined not less
than $100 nor more than $1,000, or be im-
prisoned for not less than thirty days or
more than one year, or both. If a person
has knowledge that his property is occu-
pied or used in violation of the provisions
of the War Prohibition Act and suffers
the same to be so used, such property
shall be subject to a lien for and may be
sold to pay all fines and costs assessed
against the occupant of such building or
property for any violation of the War
Prohibition Act occurring after the pas-
sage hereof, which said lien shall attach
from the time of the filing of notice of the
commencement of the suit in the office
where the records of the transfer of real
estate are kept; and any such lien may be
established and enforced by legal action
instituted for that purpose in any court
having jurisdiction. Any violation of
this title upon any leased premises by the
lessee or occupant thereof shall, at the
option of the lessor, work a forfeiture of
the lease.
NATIONAL PROHIBITION ACT 5
SEC. 4. The United States attorney for
the district where such nuisance as is de-
fined in this Act exists, or any officer des-
ignated by him or the Attorney General
of the United States, may prosecute a suit
in equity in the name of the United States
to abate and enjoin the same. Actions in
equity to enjoin and abate such nuisance
may be brought in any court having ju-
risdiction to hear and determine equity
cases. The jurisdiction of the courts of
the United States under this section shall
be concurrent with that of the courts of
the several States.
If it be made to appear by affidavit, or
other evidence under oath, to the satisfac-
tion of the court, or judge in vacation,
that the nuisance complained of exists, a
temporary writ of injunction shall forth-
with issue restraining the defendant or
defendants from conducting or permitting
the continuance of such nuisance until
the conclusion of the trial. Where a tem-
porary injunction is prayed for, the court
may issue an order restraining the de-
fendants and all other persons from re-
moving or in any way interfering with
the liquor or fixtures, or other things
used in connection with the violation
constituting the nuisance. No bond shall
be required as a condition for making
any order or issuing any writ of injunc-
tion under this Act. If the court shall
NATIONAL PROHIBITION ACT
find the property involved was being un-
lawfully used as aforesaid at or about the
time alleged in the petition, the court
shall order that no liquors shall be manu-
factured, sold, bartered, or stored in such
room, house, building, boat, vehicle,
structure, or places of any kind, for a pe-
riod of not exceeding one year, or during
the war and the period of demobilization.
Whenever an action to enjoin a nuisance
shall have been brought pursuant to the
provisions of this Act, if the owner,
lessee, tenant, or occupant appears and
pays all costs of the proceedings and files
a bond, with sureties to be approved by
the clerk of the court in which the action
is brought, in the liquidated sum of not
less than $500 nor more than $1,000, con-
ditioned that he will immediately abate
said nuisance and prevent the same from
being established or kept therein a period
of one year thereafter, or during the war
and period of demobilization, the court,
or in vacation the judge, may, if satisfied
of his good faith, direct by appropriate
order that the property, if already closed
or held under the order of abatement, be
delivered to said owner, and said order
of abatement canceled, so far as the same
may relate to said property; or if said
bond be given and costs therein paid be-
fore judgment on an order of abatement,
the action shall be thereby abated as to
NATIONAL PROHIBITION ACT 7
said room, house, building, boat, vehicle,
structure, or place only. The release of
the property under the provisions of this
section shall not release it from any judg-
ment, lien, penalty, or liability to which
it may be subject by law.
In the case of the violation of any in-
junction, temporary or permanent, granted
pursuant to the provisions of this title,
the court, or in vacation a judge thereof,
may summarily try and punish the de-
fendant. The proceedings for punish-
ment for contempt shall be commenced
by filing with the clerk of the court from
which such injunction issued information
under oath setting out the alleged facts
constituting the violation, whereupon the
court or judge shall forthwith cause a
warrant to issue under which the defend-
ant shall be arrested. The trial may be
had upon affidavits, or either party may
demand the production and oral exami-
nation of the witnesses. Any person
found guilty of contempt under the pro-
visions of this section shall be punished
by a fine of not less than $500 nor more
than $1,000, or by imprisonment of not
less than thirty days nor more than twelve
months, or by both fine and imprison-
ment.
SEC. 5. The Commissioner of Internal
Revenue, his assistants, agents, and in-
NATIONAL PROHIBITION ACT
specters, and all other officers of the
United States whose duty it is to enforce
criminal laws, shall have all the power
for the enforcement of the War Prohibi-
tion Act or any provisions thereof which
is conferred by law for the enforcement
of existing laws relating to the manufac-
ture or sale of intoxicating liquors under
the laws of the United States.
SEC. 6. If any section or provision of
this Act shall be held to be invalid, it is
hereby provided that all other provisions
of this Act which are not expressly held
to be invalid shall continue in full force
and effect.
SEC. 7. None of the provisions of this
Act shall be construed to repeal any of
the provisions of the "War Prohibition
Act," or to limit or annul any order or
regulation prohibiting the manufacture,
sale, or disposition of intoxicating liq-
uors within certain prescribed zones or
districts, nor shall the provisions of this
Act be construed to prohibit the use of
the power of the military or naval au-
thorities to enforce the regulations of the
President or Secretary of War or Navy
issued in pursuance of law, prohibiting
the manufacture, use, possession, sale, or
other disposition of intoxicating liquors
during the period of the war and demobi-
lization thereafter.
NATIONAL PROHIBITION ACT 9
TITLE II.
PROHIBITION OF INTOXICATING BEVERAGES.
SEC. 1. When used in Title II and Ti-
tle III of this Act (1) the word "liquor"
or the phrase "intoxicating liquor" shall
be construed to include alcohol, brandy,
whisky, rum, gin, beer, ale, porter, and
wine, and in addition thereto any spirit-
uous, vinous, malt, or fermented liquor,
liquids, and compounds, whether medi-
cated, proprietary, patented, or not, and
by whatever name called, containing one-
half of 1 per centum or more of alcohol
by volume which are fit for use for bev-
erage purposes: Provided, That the fore-
going definition shall not extend to deal-
coholized wine nor to any beverage or
liquid produced by the process by which
beer, ale, porter or wine is produced, if it
contains less than one-half of 1 per cen-
tum of alcohol by volume, and is made as
prescribed in section 37 of this title, and
is otherwise denominated than as beer,
ale, or porter, and is contained and sold
in, or from, such sealed and labeled bot-
tles, casks, or containers as the commis-
sioner may by regulation prescribe.
(2) The word "person" shall mean
and include natural persons, associations,
copartnerships, and corporations.
10
NATIONAL PROHIBITION ACT
"Commis-
sioner"
'Application"
"Permit"
"Bond"
'Regulation'
Authority of
Commissioner
Authority
of Agents
Records
(3) The word "commissioner" shall
mean Commissioner of Internal Revenue.
(*) The term "application" shall mean
a formal written request supported by a
verified statement of facts showing that
the commissioner may grant the request.
(5) The term "permit" shall mean a
formal written authorization by the com-
missioner setting forth specifically therein
the things that are authorized.
(6) The term "bond" shall mean an
obligation authorized or required by or
under this Act or any regulation, exe-
cuted in such form and for such a penal
sum as may be required by a court, the
commissioner or prescribed by regulation.
(7) The term "regulation" shall mean
any regulation prescribed by the com-
missioner with the approval of the Secre-
tary of the Treasury for carrying out the
provisions of this Act, and the commis-
sioner is authorized to make such regula-
tions.
Any act authorized to be done by the
commissioner may be performed by any
assistant or agent designated by him for
that purpose. Records required to be
filed with the commissioner may be filed
with an assistant commissioner or other
person designated by the commissioner
to receive such records.
NATIONAL PROHIBITION ACT
11
Duties of
Commissioner
Prosecution
Warrants
Preliminary
Trial
Search
Warrants
See p. 95
SEC. 2. The Commissioner of Internal
Revenue, his assistants, agents, and in-
spectors shall investigate and report viola-
tions of this Act to the United States at-
torney for the district in which committed,
who is hereby charged with the duty
of prosecuting the offenders, subject to
the direction of the Attorney General, as
in the case of other offenses against the
laws of the United States; and such Com-
missioner of Internal Revenue, his assist-
ants, agents, and inspectors may swear
out warrants before United States com-
missioners or other officers or courts au-
thorized to issue the same for the appre-
hension of such offenders, and may, sub-
ject to the control of the said United
States attorney, conduct the prosecution
at the committing trial for the purpose of
having the offenders held for the action
of a grand jury. Section 1014 of the Re-
vised Statutes of the United States is
hereby made applicable in the enforce-
ment of this Act. Officers mentioned in
said section 1014 are authorized to issue
search warrants under the limitations
provided in Title XI of the Act approved
June 15, 1917 (fortieth Statutes at Large,
page 217, et seq.).
SEC. 3. No person shall on or after the
date when the eighteenth amendment to
the Constitution of the United States
12
NATIONAL PROHIBITION ACT
Acts Pro-
hibited
Liberal
Construction
Thingn
Permitted
In General
Warehouse
Receipts
Specific
Articles
Permitted
Denatured
Alcohol
or Rum
goes into effect, manufacture, sell, barter,
transport, import, export, deliver, fur-
nish, or possess any intoxicating liquor
except as authorized in this Act, and all
the provisions of this Act shall be liber-
ally construed to the end that the use of
intoxicating liquor as a beverage may be
prevented.
Liquor for nonbeverage purposes and
wine for sacramental purposes may be
manufactured, purchased, sold, bartered,
transported, imported, exported, deliv-
ered, furnished, and possessed, but only
as herein provided, and the commissioner
may, upon application, issue permits
therefor: Provided, That nothing in this
Act shall prohibit the purchase and sale
of warehouse receipts covering distilled
spirits on deposit in Government bonded
warehouses, and no special tax liability
shall attach to the business of purchasing
and selling such warehouse receipts.
SEC. 4. The articles enumerated in this
section shall not, after having been man-
ufactured and prepared for the market,
be subject to the provisions of this Act if
they correspond with the following de-
scriptions and limitations namely:
(a) Denatured alcohol or denatured rum
produced and used as provided by laws
and regulations now or hereafter in force.
NATIONAL PROHIBITION ACT
13
Medicinal
Preparations
Patent
Medicines
Toilet, etc.
Preparations
Flavoring
Extracts, etc.
Vinegar and
Cider
Liquor for
Manufacturing
Purposes
Permits
Use of Liquor
for Manufac-
turing
(b) Medicinal preparations manufac-
tured in accordance with formulas pre-
scribed by the United States Pharma-
copoeia, National Formulary, or the
American Institute of Homeopathy that
are unfit for use for beverage purposes.
(c) Patented, patent, and proprietary
medicines that are unfit for use for bev-
erage purposes.
(d) Toilet, medicinal, and antiseptic
preparations and solutions that are unfit
for use for beverage purposes.
(e) Flavoring extracts and sirups that
are unfit for use as a beverage, or for in-
toxicating beverage purposes.
(f) Vinegar and preserved sweet cider.
A person who manufactures any of the
articles mentioned in this section may
purchase and possess liquor for that pur-
pose, but he shall secure permits to man-
ufacture such articles and to purchase
such liquor, give the bonds, keep the rec-
ords, and make the reports specified in
this Act and as directed by the commis-
sioner. No such manufacturer shall sell,
use, or dispose of any liquor otherwise
than as an ingredient of the articles au-
thorized to be manufactured therefrom.
No more alcohol shall be used in the man-
ufacture of any extract, sirup, or the ar-
ticles named in paragraphs b, c, and d of
14
NATIONAL PROHIBITION ACT
Sale of
Permitted
Articles for
Beverage
Purposes
Unlawful
Notice to
Desist
Penalty
this section which may be used for bever-
age purposes than the quantity necessary
for extraction of solution of the elements
contained therein and for the preserva-
tion of the article.
Any person who shall knowingly sell
any of the articles mentioned in para-
graphs a, b, c, and d of this section for
beverage purposes, or any extract or sirup
for intoxicating beverage purposes, or
who shall sell any of the same under cir-
cumstances from which the seller might
reasonably deduce the intention of the
purchaser to use them for such purposes,
or shall sell any beverage containing one-
half of 1 per centum or more of alcohol
by volume in which any extract, sirup, or
other article is used as an ingredient,
shall be subject to the penalties provided
in section 29 of this Title. If the commis-
sioner shall find, after notice and hearing
as provided for in section 5 of this Title,
that any person has sold any flavoring
extract, sirup, or beverage in violation of
this paragraph, he shall notify such per-
son, and any known principal for whom
the sale was made, to desist from selling
such article; and it shall thereupon be
unlawful for a period of one year there-
after for any person so notified to sell any
such extract, sirup, or beverage without
making an application for, giving a bond,
and obtaining a permit so to do, which
NATIONAL PROHIBITION ACT
15
Analysis
of Alcoholic
Articles
Notice to
Show Cause
Revocation
of Permit
permit may be issued upon such condi-
tions as the commissioner may deem nec-
essary to prevent such illegal sales, and
in addition the commissioner shall re-
quire a record and report of sales.
SEC. 5. "Whenever the commissioner has
reason to believe that any article men-
tioned in section 4 does not correspond
with the descriptions and limitations
therein provided, he shall cause an analy-
sis of said article to be made, and if, upon
such analysis, the commissioner shall find
that said article does not so correspond, he
shall give not less than fifteen days' no-
tice in writing to the person who is the
manufacturer thereof to show cause why
said article should not be dealt with as an
intoxicating liquor, such notice to be
served personally or by registered mail,
as the commissioner may determine, and
shall specify the time when, the place
where, and the name of the agent or of-
ficial before whom such person is re-
quired to appear.
If the manufacturer of said article fails
to show to the satisfaction of the com-
missioner that the article corresponds to
the descriptions and limitations provided
in section 4 of this Title, his permit to
manufacture and sell such article shall be
revoked. The manufacturer may by ap-
propriate proceeding in a court of equity
16
NATIONAL PROHIBITION ACT
Review
by Court
When Permit
Necessary
When Un-
necessary
Physicians'
Prescriptions
Hospitals
Duration
of Permits
have the action of the commissioner re-
viewed, and the court may affirm, modify,
or reverse the finding of the commis-
sioner as the facts and law of the case
may warrant, and during the pendency of
such proceedings may restrain the manu-
facture, sale, or other disposition of such
article.
SEC. 6. No one shall manufacture, sell,
purchase, transport, or prescribe any liq-
uor without first obtaining a permit from
the commissioner so to do, except that a
person may, without a permit, purchase
and use liquor for medicinal purposes
when prescribed by a physician as herein
provided, and except that any person who
in the opinion of the commissioner is con-
ducting a bona fide hospital or sanato-
rium engaged in the treatment of persons
suffering from alcoholism, may, under
such rules, regulations, and conditions as
the commissioner shall prescribe, pur-
chase and use, in accordance with the
methods in use in such institution, liquor,
to be administered to the patients of such
institution under the direction of a duly
qualified physician employed by such in-
stitution.
All permits to manufacture, prescribe,
sell, or transport liquor, may be issued
for one year, and shall expire on the 31st
day of December next succeeding the is-
NATIONAL PROHIBITION ACT
17
suance thereof: Provided, That the com-
missioner may without formal application
or new bond extend any permit granted
under this Act or laws now in force after
August 31 in any year to December 31 of
the succeeding year: Provided further,
That permits to purchase liquor for the
purpose of manufacturing or selling as
provided in this Act shall not be in force
to exceed ninety days from the day of is-
suance. A permit to purchase liquor for
any other purpose shall not be in force to
exceed thirty days. Permits to purchase
liquor shall specify the quantity and kind
to be purchased and the purpose for
which it is to be used. No permit shall be
issued to any person who within one year
prior to the application therefor or issu-
ance thereof shall have violated the terms
of any permit issued under this Title or
any law of the United States or of any
State regulating traffic in liquor. No per-
mit shall be issued to anyone to sell liq-
uor at retail, unless the sale is to be made
through a pharmacist designated in the
permit and duly licensed under the laws
of his State to compound and dispense
medicine prescribed by a duly licensed
physician. No one shall be given a permit
to prescribe liquor unless he is a physician
duly licensed to practice medicine and ac-
tively engaged in the practice of such
profession. Every permit shall be in
18
NATIONAL PROHIBITION ACT
Form of
Permit
Application
for Permit
Permit
Bond
Review by
Court of Re-
fusal of Per-
mit
Wine for
Sacramental
Purposes
writing, dated when issued, and signed
by commissioner or his authorized agent.
It shall give the name and address of the
person to whom it is issued and shall des-
ignate and limit the acts that are per-
mitted and the time when and place where
such acts may be performed. No permit
shall be issued until a verified, written
application shall have been made there-
for, setting forth the qualification of the
applicant and the purpose for which the
liquor is to be used.
The commissioner may prescribe the
form of all permits and applications and
the facts to be set forth therein. Before
any permit is granted the commissioner
may require a bond in such form and
amount as he may prescribe to insure
compliance with the terms of the permit
and the provisions of this Title. In the
event of the refusal by the commissioner
of any application for a permit, the appli-
cant may have a review of his decision
before a court of equity in the manner
provided in section 5 hereof.
Nothing in this title shall be held to
apply to the manufacture, sale, transpor-
tation, importation, possession, or distri-
bution of wine for sacramental purposes,
or like religious rites, except section 6
(save as the same requires a permit to
purchase) and section 10 hereof, and the
NATIONAL PROHIBITION ACT
19
Permit
Restrictions
Ecclesiastical
Manufacture
See p. 142
Prescriptions
provisions of this Act prescribing penal-
ties for the violation of either of said sec-
tions. No person to whom a permit may
be issued to manufacture, transport, im-
port, or sell wines for sacramental pur-
poses or like religious rites shall sell,
barter, exchange, or furnish any such to
any person not a rabbi, minister of the
gospel, priest, or an officer duly author-
ized for the purpose by any church or
congregation, nor to any such except
upon an application duly subscribed by
him, which application, authenticated as
regulations may prescribe, shall be filed
and preserved by the seller. The head of
any conference or diocese or other eccle-
siastical jurisdiction may designate any
rabbi, minister, or priest to supervise the
manufacture of wine to be used for the
purposes and rites in this section men-
tioned, and the person so designated may,
in the discretion of the commissioner, be
granted a permit to supervise such manu-
facture.
SEC. 7. No one but a physician holding
a permit to prescribe liquor shall issue
any prescription for liquor. And no
physician shall prescribe liquor unless
after careful physical examination of the
person for whose use such prescription is
sought, or if such examination is found
impracticable, then upon the best infor-
20
NATIONAL PROHIBITION ACT
Necessity
as Medicine
Amount
Permissible
Refilling
Prohibited
Pharmacist
Record
Physician's
Record
Prescription
Blanks
mation obtainable, he in good faith be-
lieves that the use of such liquor as a
medicine by such person is necessary and
will afford relief to him from some known
ailment. Not more than a pint of spirit-
uous liquor to be taken internally shall be
prescribed for use by the same person
within any period of ten days and no pre-
scription shall be filled more than once.
Any pharmacist filling a prescription shall
at the time indorse upon it over his own
signature the word "canceled," together
with the date when the liquor was deliv-
ered, and then make the same a part of
the record that he is required to keep as
herein provided.
Every physician who issues a prescrip-
tion for liquor shall keep a record, alpha-
betically arranged in a book prescribed
by the commissioner, which shall show
the date of issue, amount prescribed, to
whom issued, the purpose or ailment for
which it is to be used and directions for
use, stating the amount and frequency
of the dose.
SEC. 8. The commissioner shall cause
to be printed blanks for the prescriptions
herein required, and he shall furnish the
same, free of cost, to physicians holding
permits to prescribe. The prescription
blanks shall be printed in book form and
shall be numbered consecutively from
NATIONAL PROHIBITION ACT
21
Violation
of Permit
Procedure
one to one hundred, and each book shall
be given a number, and the stubs in each
book shall carry the same numbers as and
be copies of the prescriptions. The books
containing such stubs shall be returned
to the commissioner when the prescrip-
tion blanks have been used, or sooner, if
directed by the commissioner. All un-
used, mutilated, or defaced blanks shall
be returned with the book. No physician
shall prescribe and no pharmacist shall
fill any prescription for liquor except on
blanks so provided, except in cases of
emergency, in which event a record and
report shall be made and kept as in other
cases.
SEC. 9. If at any time there shall be
filed with the commissioner a complaint
under oath setting forth facts showing,
or if the commissioner has reason to be-
lieve, that any person who has a permit
is not in good faith conforming to the
provisions of this Act, or has violated the
laws of any State relating to intoxicating
liquor, the commissioner or his agent
shall immediately issue an order citing
such person to appear before him on a
day named not more than thirty and not
less than fifteen days from the date of
service upon such permittee of a copy of
the citation, which citation shall be ac-
companied by a copy of such complaint,
22
NATIONAL PROHIBITION ACT
Revocation
of Permit
Review by
Court
Record of
Liquor
Handled
or in the event that the proceedings be
initiated by the commissioner, with a
statement of the facts constituting the
violation charged, at which time a hear-
ing shall be had unless continued for
cause. Such hearings shall be held within
the judicial district and within fifty miles
of the place where the offense is alleged
to have occurred, unless the parties agree
on another place. If it be found that
such person has been guilty of willfully
violating any such laws, as charged, or
has not in good faith conformed to the
provisions of this Act, such permit shall
be revoked, and no permit shall be granted
to such person within one year thereafter.
Should the permit be revoked by the com-
missioner, the permittee may have a re-
view of his decision before a court of eq-
uity in the manner provided in section 5
hereof. During the pendency of such ac-
tion such permit shall be temporarily re-
voked.
SEC. 10. No person shall manufacture,
purchase for sale, sell, or transport any
liquor without making at the time a per-
manent record thereof showing in detail
the amount and kind of liquor manufac-
tured, purchased, sold or transported, to-
gether with the names and addresses of
the persons to whom sold, in case of sale,
and the consignor and consignee in case
NATIONAL PROHIBITION ACT
23
Manufacturers
and Druggists
Records
Sale Re-
stricted to
Permittees
Labels
Specifications
in Labels
of transportation, and the time and place
of such manufacture, sale, or transporta-
tion. The commissioner may prescribe
the form of such record, which shall at all
times be open to inspection as in this Act
provided.
SEC. 11. All manufacturers and whole-
sale or retail druggists shall keep as a
part of the records required of them a
copy of all permits to purchase on which
a sale of any liquor is made, and no man-
ufacturer or wholesale druggist shall sell
or otherwise dispose of any liquor except
at wholesale and only to persons having
permits to purchase in such quantities.
SEC. 12. All persons manufacturing liq-
uor for sale under the provisions of this
title shall securely and permanently at-
tach to every container thereof, as the
same is manufactured, a label stating
name of manufacturer, kind and quantity
of liquor contained therein, and the date
of its manufacture, together with the
number of the permit authorizing the
manufacture thereof; and all persons pos-
sessing such liquor in wholesale quanti-
ties shall securely keep and maintain
such label thereon; and all persons selling
at wholesale shall attach to every pack-
age of liquor, when sold, a label setting
forth the kind and quantity of liquor
contained therein, by whom manufac-
24
NATIONAL PROHIBITION ACT
See p. 154
Duties of
Carriers
Records
Delivery
Oath of
Consignee
See p. 158
Duty of
Consignor
tured, the date of sale, and the person to
whom sold; which label shall likewise be
kept and maintained thereon until the
liquor is used for the purpose for which
such sale was authorized.
SEC. 13. It shall be the duty of every
carrier to make a record at the place of
shipment of the receipt of any liquor
transported, and he shall deliver liquor
only to persons who present to the car-
rier a verified copy of a permit to pur-
chase, which shall be made a part of the
carrier's permanent record at the office
from which delivery is made.
The agent of the common carrier is
hereby authorized to administer the oath
to the consignee in verification of the
copy of the permit presented, who, if not
personally known to the agent, shall be
identified before the delivery of the liq-
uor to him. The name and address of the
person identifying the consignee shall be
included in the record.
SEC. 14. It shall be unlawful for a per-
son to use or induce any carrier, or any
agent or employee thereof, to carry or
ship any package or receptacle contain-
ing liquor without notifying the carrier
of the true nature and character of the
shipment. No carrier shall transport nor
shall any person receive liquor from a
carrier unless there appears on the out-
NATIONAL PROHIBITION ACT
25
Information
on Package
See p. 161
False
Statement
Order for
Delivery
to False
Consignee
See p. 162
Advertisement
of Liquor
side of the package containing such liq-
uor the following information:
Name and address of the consignor or
seller, name and address of the consignee,
kind and quantity of liquor contained
therein, and number of the permit to pur-
chase or ship the same, together with the
name and address of the person using the
permit.
SEC. 15. It shall be unlawful for any
consignee to accept or receive any pack-
age containing any liquor upon which ap-
pears a statement known to him to be
false, or for any carrier or other person
to consign, ship, transport, or deliver any
such package, knowing such statement to
be false.
SEC. 16. It shall be unlawful to give
to any carrier or any officer, agent, or
person acting or assuming to act for such
carrier an order requiring the delivery to
any person of any liquor or package con-
taining liquor consigned to, or purporting
or claimed to be consigned to a person,
when the purpose of the order is to en-
able any person not an actual bona fide
consignee to obtain such liquor.
SEC. 17. It shall be unlawful to adver-
tise anywhere, or by any means or
method, liquor, or the manufacture, sale,
keeping for sale or furnishing of the
26
NATIONAL PROHIBITION ACT
Legitimate
Price Lists
Advertisement,
Manufacture
or Sale of
Things for
Making Liq-
See p. 165
same, or where, how, from whom, or at
what price the same may be obtained.
No one shall permit any sign or billboard
containing such advertisement to remain
upon one's premises. But nothing herein
shall prohibit manufacturers and whole-
sale druggists holding permits to sell liq-
uor from furnishing price lists, with de-
scription of liquor for sale, to persons
permitted to purchase liquor, or from ad-
vertising alcohol in business publications
or trade journals circulating generally
among manufacturers of lawful alcoholic
perfumes, toilet preparations, flavoring
extracts, medicinal preparations, and like
articles: Provided, however, That noth-
ing in this Act or in the Act making ap-
propriations for the Post Office Depart-
ment, approved March 3, 1917 (Thirty-
ninth Statutes at Large, Part 1, page
1058, et seq.), shall apply to newspapers
published in foreign countries when
mailed to this country.
SEC. 18. It shall be unlawful to adver-
tise, manufacture, sell, or possess for sale
any utensil, contrivance, machine, prepa-
ration, compound, tablet, substance, for-
mula direction, or recipe advertised, de-
signed, or intended for use in the unlaw-
ful manufacture of intoxicating liquor.
SEC. 19. No person shall solicit or re-
ceive, nor knowingly permit his employee
NATIONAL PROHIBITION ACT
27
Order for or
Information
Regarding
Liquor
Civil Suit
for Causing
Intoxication
to solicit or receive, from any person any
order for liquor or give any information
of how liquor may be obtained in viola-
tion of this Act.
SEC. 20. Any person who shall be in-
jured in person, property, means of sup-
port, or otherwise by any intoxicated
person, or by reason of the intoxication
of any person, whether resulting in his
death or not, shall have a right of action
against any person who shall, by unlaw-
fully selling to or unlawfully assisting in
procuring liquor for such intoxicated
person, have caused or contributed to
such intoxication, and in any such action
such person shall have a right to recover
actual and exemplary damages. In case
of the death of either party, the action or
right of action given by this section shall
survive to or against his or her executor
or administrator, and the amount so re-
covered by either wife or child shall be
his or her sole and separate property.
Such action may be brought in any court
of competent jurisdiction. In any case
where parents shall be entitled to such
damages, either the father or mother may
sue alone therefor, but recovery by one of
such parties shall be a bar to suit brought
by the other.
SEC. 21. Any room, house, building,
boat, vehicle, structure, or place where
28
NATIONAL PROHIBITION ACT
Liquor
Nuisances
See p. 167
Punishment
Injunction
against Such
Nuisance
intoxicating liquor is manufactured, sold,
kept, or bartered in violation of this ti-
tle, and all intoxicating liquor and prop-
erty kept and used in maintaining the
same, is hereby declared to be a common
nuisance, and any person who maintains
such a common nuisance shall be guilty
of a misdemeanor and upon conviction
thereof shall be fined not more than $1,000
or be imprisoned for not more than one
year, or both. If a person has knowledge
or reason to believe that his room, house,
building, boat, vehicle, structure, or place
is occupied or used for the manufacture
or sale of liquor contrary to the provision
of this title, and suffers the same to be so
occupied or used, such room, house,
building, boat, vehicle, structure, or place
shall be subject to a lien for and may be
sold to pay all fines and costs assessed
against the person guilty of such nui-
sance for such violation, and any such
lien may be enforced by action in any
court having jurisdiction.
SEC. 22. An action to enjoin any nui-
sance defined in this title may be brought
in the name of the United States by the
Attorney General of the United States or
by any United States attorney or any
prosecuting attorney of any State or any
subdivision thereof or by the commis-
sioner or his deputies or assistants. Such
NATIONAL PROHIBITION ACT
29
Trial
Temporary
Injunction
Bond
Order
Abatement
action shall be brought and tried as an
action in equity and may be brought in
any court having jurisdiction to hear and
determine equity cases. If it is made to
appear by affidavits or otherwise, to the
satisfaction of the court, or judge in va-
cation, that such nuisance exists, a tem-
porary writ of injunction shall forthwith
issue restraining the defendant from con-
ducting or permitting the continuance of
such nuisance until the conclusion of the
trial. If a temporary injunction is prayed
for, the court may issue an order re-
straining the defendant and all other per-
sons from removing or in any way inter-
fering with the liquor or fixtures, or other
things used in connection with the vio-
lation of this Act constituting such nui-
sance. No bond shall be required in in-
stituting such proceedings. It shall not
be necessary for the court to find the
property involved was being unlawfully
used as aforesaid at the time of the hear-
ing, but on finding that the material alle-
gations of the petition are true, the court
shall order that no liquors shall be manu-
factured, sold, bartered, or stored in such
room, house, building, boat, vehicle,
structure, or place, or any part thereof.
And upon judgment of the court ordering
such nuisance to be abated, the court may
order that the room, house, building,
structure, boat, vehicle, or place shall not
30 NATIONAL PROHIBITION ACT
be occupied or used for one year there-
after; but the court may, in its discretion,
permit it to be occupied or used if the
owner, lessee, tenant, or occupant thereof
shall give bond with sufficient surety, to
be approved by the court making the
order, in the penal and liquidated sum of
not less than $500 nor more than $1,000,
payable to the United States, and con-
ditioned that intoxicating liquor will not
thereafter be manufactured, sold, bar-
tered, kept, or otherwise disposed of
therein or thereon, and that he will pay
all fines, costs, and damages that may be
assessed for any violation of this title
upon said property.
See 171 SEC. 23. That any person who shall,
with intent to effect a sale of liquor, by
against™" himself, his employee, servant, or agent,
Trafficing for himself or any person, company, or
corporation, keep or carry around on his
person, or in a vehicle, or other convey-
ance whatever, or leave in a place for an-
other to secure, any liquor, or who shall
travel to solicit, or solicit, or take, or ac-
cept orders for the sale, shipment, or de-
livery of liquor in violation of this title is
guilty of a nuisance and may be re-
strained by injunction, temporary and
permanent, from doing or continuing to
do any of said acts or things.
In such proceedings it shall not be nee-
NATIONAL PROHIBITION ACT
31
Intent
Officers'
Fees
Forfeiture
of Lease
Violation
of Injunction
Contempt
Proceedings
essary to show any intention on the part
of the accused to continue such violations
if the action is brought within sixty days
following any such violation of the law.
For removing and selling property in
enforcing this Act the officer shall be en-
titled to charge and receive the same fee
as the sheriff of the county would receive
for levying upon and selling property un-
der execution, and for closing the prem-
ises and keeping them closed a reasonable
sum shall be allowed by the court.
Any violation of this title upon any
leased premises by the lessee or occupant
thereof shall, at the option of the lessor,
work a forfeiture of the lease.
SEC. 24. In the case of the violation of
any injunction, temporary or permanent,
granted pursuant to the provisions of this
title, the court, or in vacation a judge
thereof, may summarily try and punish
the defendant. The proceedings for pun-
ishment for contempt shall be commenced
by filing with the clerk of the court from
which such injunction issued information
under oath setting out the alleged facts
constituting the violation, whereupon the
court or judge shall forthwith cause a
warrant to issue under which the defend-
ant shall be arrested. The trial may be
had upon affidavits, or either party may
demand the production and oral exami-
32
NATIONAL PROHIBITION ACT
Punishment
See p. 201
Property
Rights in
Liquor or
Articles for
Manufacturing
Unlawfully
Search
Warrants
Seizure
Search of
Private
Dwelling
nation of the witnesses. Any person
found guilty of contempt under the pro-
visions of this section shall be punished
by a fine of not less than $500 nor more
than $1,000, or by imprisonment of not
less than thirty days nor more than
twelve months, or by both fine and im-
prisonment.
SEC. 25. It shall be unlawful to have
or possess any liquor or property designed
for the manufacture of liquor intended
for use in violating this title or which has
been so used, and no property rights shall
exist in any such liquor or property. A
search warrant may issue as provided in
Title XI of public law numbered 24 of the
Sixty-fifth Congress, approved June 15,
1917, and such liquor, the containers
thereof, and such property so seized shall
be subject to such disposition as the court
may make thereof. If it is found that
such liquor or property was so unlawfully
held or possessed, or had been so unlaw-
fully used, the liquor and all property de-
signed for the unlawful manufacture of
liquor shall be destroyed unless the court
shall otherwise order. No search war-
rant shall issue to search any private
dwelling occupied as such unless it is be-
ing used for the unlawful sale of intoxi-
cating liquor, or unless it is in part used
for some business purpose such as a store,
NATIONAL PROHIBITION ACT
33
See p. 213
Seizure of
Vehicle
Bond for
Return of
Seized Ve-
hicles
shop, saloon, restaurant, hotel, or board-
ing house. The term "private dwelling"
shall be construed to include the room or
rooms used and occupied not transiently
but solely as a residence in an apartment
house, hotel, or boarding house. The
property seized on any such warrant
shall not be taken from the officer seizing
the same on any writ of replevin or other
like process.
SEC. 26. When the commissioner, his
assistants, inspectors, or any officer of the
law shall discover any person in the act
of transporting in violation of the law,
intoxicating liquors in any wagon, buggy,
automobile, water or air craft, or other
vehicle, it shall be his duty to seize any
and all intoxicating liquors found therein
being transported contrary to law.
Whenever intoxicating liquors trans-
ported or possessed illegally shall be
seized by an officer he shall take posses-
sion of the vehicle and team or automo-
bile, boat, air or water craft, or any other
conveyance, and shall arrest any person
in charge thereof. Such officer shall at
once proceed against the person arrested
under the provisions of this title in any
court having competent jurisdiction; but
the said vehicle or conveyance shall be
returned to the owner upon execution by
him of a good and valid bond, with suffi-
34
NATIONAL PROHIBITION ACT
Sale of
Vehicle
upon Convic-
tion
Liens on
Vehicles
Advertisement
for Claimant
cient sureties, in a sum double the value
of the property, which said bond shall be
approved by said officer and shall be con-
ditioned to return said property to the
custody of said officer on the day of trial
to abide the judgment of the court. The
court upon conviction of the person so
arrested shall order the liquor destroyed,
and unless good cause to the contrary is
shown by the owner, shall order a sale by
public auction of the property seized, and
the officer making the sale, after deduct-
ing the expenses of keeping the property,
the fee for the seizure, and the cost of the
sale, shall pay all liens, according to their
priorities, which are established, by in-
tervention or otherwise, at said hearing
or in other proceeding brought for said
purpose, as being bona fide and as having
been created without the lienor having
any notice that the carrying vehicle was
being used or was to be used for illegal
transportation of liquor, and shall pay
the balance of the proceeds into the
Treasury of the United States as miscel-
laneous receipts. All liens against prop-
erty sold under the provisions of this
section shall be transferred from the prop-
erty to the proceeds of the sale of the
property. If, however, no one shall be
found claiming the team, vehicle, water
or air craft, or automobile, the taking of
the same, with a description thereof,
NATIONAL PROHIBITION ACT 35
shall be advertised in some newspaper
published in the city or county where
taken, or if there be no newspaper pub-
lished in such city or county, in a news-
paper having circulation in the county,
once a week for two weeks, and by hand-
bills posted in three public places near
the place of seizure, and if no claimant
shall appear within ten days after the last
publication of the advertisement, the
property shall be sold and the proceeds
after deducting the expenses and costs
shall be paid into the Treasury of the
United States as miscellaneous receipts.
Disposition SEC. 27. In all cases in which intoxi-
of Confiscated .
Liquors eating liquors may be subject to be de-
stroyed under the provisions of this Act
the court shall have jurisdiction upon the
application of the United States attorney
to order them delivered to any depart-
ment or agency of the United States
Government for medicinal, mechanical,
or scientific uses, or to order the same
sold at private sale for such purposes to
any person having a permit to purchase
liquor the proceeds to be covered into the
Treasury of the United States to the
credit of miscellaneous receipts, and all
liquor heretofore seized in any suit or
proceeding brought for violation of law
may likewise be so disposed of, if not
claimed within sixty days from the date
this section takes effect.
36
NATIONAL PROHIBITION ACT
General
Powers
of Officers
See p. 234
Punishment
In General
Punishment
of Permittee
SEC. 28. The commissioner, his assist-
ants, agents, and inspectors, and all other
officers of the United States, whose duty
it is to enforce criminal laws, shall have
all the power and protection in the en-
forcement of this Act or any provisions
thereof which is conferred by law for the
enforcement of existing laws relating to
the manufacture or sale of intoxicating
liquors under the law of the United
States.
SEC. 29. Any person who manufactures
or sells liquor in violation of this title
shall for a first offense be fined not more
than $1,000, or imprisoned not exceeding
six months, and for a second or subse-
quent offense shall be fined not less than
$200 nor more than $2,000 and be impris-
oned not less than one month nor more
than five years.
Any person violating the provisions of
any permit, or who makes any false rec-
ord, report, or affidavit required by this
title, or violates any of the provisions of
this title, for which offense a special pen-
alty is not prescribed, shall be fined for a
first offense not more than $500; for a
second offense not less than $100 nor
more than $1,000, or be imprisoned not
more than ninety days; for any subse-
quent offense he shall be fined not less
than $500 and be imprisoned not less than
NATIONAL PROHIBITION ACT
37
Prior
Conviction
Cider and
Fruit Juices
Incrimination
No Excuse
from Testify-
ing
Immunity
three months nor more than two years.
It shall be the duty of the prosecuting
officer to ascertain whether the defend-
ant has been previously convicted and to
plead the prior conviction in the affidavit,
information, or indictment. The penal-
ties provided in this Act against the man-
ufacture of liquor without a permit shall
not apply to a person for manufacturing
nonintoxicating cider and fruit juices ex-
clusively for use in his home, but such
cider and fruit juices shall not be sold or
delivered except to persons having per-
mits to manufacture vinegar.
SEC. 30. No person shall be excused,
on the ground that it may tend to incrim-
inate him or subject him to a penalty or
forfeiture, from attending and testifying,
or producing books, papers, documents,
and other evidence in obedience to a sub-
poena of any court in any suit or proceed-
ing based upon or growing out of any al-
leged violation of this Act; but no natural
person shall be prosecuted or subjected
to any penalty or forfeiture for or on ac-
count of any transaction, matter, or thing
as to which, in obedience to a subpoena
and under oath, he may so testify or pro-
duce evidence, but no person shall be ex-
empt from prosecution and punishment
for perjury committed in so testifying.
SEC. 31. In case of a sale of liquor
38
NATIONAL PROHIBITION ACT
Venue of
Prosecution
See p. 236
Indictments,
etc.
Unnecessary
Allegations
Bill of
Particulars
See p. 331
Possession
as Prima Fa-
cie Evidence
where the delivery thereof was made by a
common or other carrier the sale and de-
livery shall be deemed to be made in the
county or district wherein the delivery
was made by such carrier to the con-
signee, his agent or employee, or in the
county or district wherein the sale was
made, or from which the shipment was
made, and prosecution for such sale or
delivery may be had in any such county
or district.
SEC. 32. In any affidavit, information,
or indictment for the violation of this
Act, separate offenses may be united in
separate counts and the defendant may
be tried on all at one trial and the penalty
for all offenses may be imposed. It shall
not be necessary in any affidavit, infor-
mation, or indictment to give the name of
the purchaser or to include any defensive
negative averments, but it shall be suffi-
cient to state that the act complained of
was then and there prohibited and unlaw-
ful, but this provision shall not be con-
strued to preclude the trial court from
directing the furnishing the defendant a
bill of particulars when it deems it proper
to do so.
SEC. 33. After February 1, 1920, the
possession of liquors by any person not
legally permitted under this title to pos-
sess liquor shall be prima facie evidence
NATIONAL PROHIBITION ACT
39
Possession
in Private
Dwelling
Records
Subject to
Inspection
that such liquor is kept for the purpose of
being sold, bartered, exchanged, given
away, furnished, or otherwise disposed of
in violation of the provision of this title.
Every person legally permitted under
this title to have liquor shall report to the
commissioner within ten days after the
date when the eighteenth amendment of
the Constitution of the United States
goes into effect, the kind and amount of
intoxicating liquors in his possession.
But it shall not be unlawful to possess
liquors in one's private dwelling while
the same is occupied and used by him
as his dwelling only and such liquor
need not be reported, provided such liq-
uors are for use only for the personal
consumption of the owner thereof and his
family residing in such dwelling and of
his bona fide guests when entertained by
him therein; and the burden of proof
shall be upon the possessor in any action
concerning the same to prove that such
liquor was lawfully acquired, possessed,
and used.
SEC. 34. All records and reports kept
or filed under the provisions of this Act
shall be subject to inspection at any rea-
sonable hour by the commissioner or any
of his agents or by any public prosecutor
or by any person designated by him, or
by any peace officer in the State where
40
NATIONAL PROHIBITION ACT
Copies as
Evidence
See p. 463
Repeal of
Inconsistent
Laws
Taxes and
Stamps
the record is kept, and copies of such rec-
ords and reports duly certified by the per-
son with whom kept or filed may be in-
troduced in evidence with like effect as
the originals thereof, and verified copies
of such reports shall be furnished to the
commissioner when called for.
SEC. 35. All provisions of law that are
inconsistent with this Act are repealed
only to the extent of such inconsistency
and the regulations herein provided for
the manufacture or traffic in intoxicating
liquor shall be construed as in addition
to existing laws. This Act shall not re-
lieve anyone from paying any taxes or
other charges imposed upon the manu-
facture or traffic in such liquor. No liq-
uor revenue stamps or tax receipts for
any illegal manufacture or sale shall be
issued in advance, but upon evidence of
such illegal manufacture or sale a tax
shall be assessed against, and collected
from, the person responsible for such il-
legal manufacture or sale in double the
amount now provided by law, with an ad-
ditional penalty of $500 on retail dealers
and $1,000 on manufacturers. The pay-
ment of such tax or penalty shall give no
right to engage in the manufacture or
sale of such liquor, or relieve anyone from
criminal liability, nor shall this Act re-
lieve any person from any liability, civil
NATIONAL PROHIBITION ACT
41
Compromise
of Civil
Action
Invalidity
Part of Act
Storage and
Transporta-
tion of
Bonded
Liquor
Manufacture
of Non-Alco-
holic Bever-
ages
or criminal, heretofore or hereafter in-
curred under existing laws.
The commissioner, with the approval
of the Secretary of the Treasury, may
compromise any civil cause arising under
this title before bringing action in court;
and with the approval of the Attorney
General he may compromise any such
cause after action thereon has been com-
menced.
SEC. 36. If any provision of this Act
shall be held invalid it shall not be con-
strued to invalidate other provisions of
the Act.
SEC. 37. Nothing herein shall prevent
the storage in United States bonded ware-
houses of all liquor manufactured prior
to the taking effect of this Act, or pre-
vent the transportation of such liquor to
such warehouses or to any wholesale
druggist for sale to such druggist for pur-
poses not prohibited when the tax is paid,
and permits may be issued therefor.
A manufacturer of any beverage con-
taining less than one-half of 1 per centum
of alcohol by volume may, on making ap-
plication and giving such bond as the
commissioner shall prescribe, be given a
permit to develop in the manufacture
thereof by the usual methods of fermenta-
tion and fortification or otherwise a liq-
42 NATIONAL PROHIBITION ACT
uid such as beer, ale, porter, or wine, con-
Over y^% taining more than one-half of 1 per centum
of alcohol by volume, but before any such
liquid is withdrawn from the factory or
otherwise disposed of the alcoholic con-
tents thereof shall under such rules and
regulations as the commissioner may pre-
Reduction scribe be reduced below such one-half of
1 per centum of alcohol: Provided, That
such liquid may be removed and trans-
ported, under bond and under such regu-
lations as the commissioner may pre-
scribe, from one bonded plant or ware-
house to another for the purpose of hav-
ing the alcohol extracted therefrom. And
such liquids may be developed, under
permit, by persons other than the manu-
facturers of beverages containing less
than one-half of 1 per centum of alcohol
by volume, and sold to such manufact-
urers for conversion into such beverages.
Tax The alcohol removed from such liquid, if
evaporated and not condensed and saved,
shall not be subject to tax; if saved, it
shall be subject to the same law as other
alcoholic liquors.
Credit shall be allowed on the tax due
on any alcohol so saved to the amount of
any tax paid upon distilled spirits or
brandy used in the fortification of the
liquor from which the same is saved.
When fortified wines are made and used
NATIONAL PROHIBITION ACT
43
Burden of
Proof of
Alcoholic
Percentage
for the production of nonbeverage alco-
hol and dealcoholized wines containing
less than one-half of 1 per centum of al-
cohol by volume, no tax shall be assessed
or paid on the spirits used in such forti-
fication, and such dealcoholized wines
produced under the provisions of this
Act, whether carbonated or not, shall not
be subject to the tax on artificially carbo-
nated or sparkling wines, but shall be
subject to the tax on still wines only.
In any case where the manufacturer is
charged with manufacturing or selling
for beverage purposes any malt, vinous,
or fermented liquids containing one-half
of 1 per centum or more of alcohol by vol-
ume, or in any case where the manufac-
turer, having been permitted by the com-
missioner to develop a liquid such as ale,
beer, porter, or wine containing more
than one-half of 1 per centum of alcohol
by volume in the manner and for the pur-
pose herein provided, is charged with
failure to reduce the alcoholic content of
any such liquid below such one-half of 1
per centum before withdrawing the same
from the factory, then in either such case
the burden of proof shall be on such man-
ufacturer to show that such liquid so
manufactured, sold, or withdrawn con-
tains less than one-half of 1 per centum
of alcohol by volume. In any suit or pro-
44 NATIONAL PROHIBITION ACT
ceeding involving the alcoholic content of
any beverage, the reasonable expense of
analysis of such beverage shall be taxed
as costs in the case.
Appointment gEC> 3g. The Commissioner of Internal
of Necessary
Assistants Revenue and the Attorney General of the
United States are hereby respectively au-
thorized to appoint and employ such as-
sistants, experts, clerks, and other em-
ployees in the District of Columbia or
elsewhere, and to purchase such supplies
and equipment as they may deem neces-
sary for the enforcement of the provisions
of this Act, but such assistants, experts,
clerks, and other employees, except such
executive officers as may be appointed
by the commissioner or the Attorney Gen-
eral to have immediate direction of the
enforcement of the provisions of this Act,
and persons authorized to issue permits,
and agents and inspectors in the field
service, shall be appointed under the rules
and regulations prescribed by the Civil
Service Act: Provided, That the commis-
sioner and Attorney General in making
such appointments shall give preference
to those who have served in the military
or naval service in the recent war, if oth-
erwise qualified, and there is hereby au-
thorized to be appropriated, out of any
money in the Treasury not otherwise ap-
propriated, such sum as may be required
NATIONAL PROHIBITION ACT
45
"Alcohol"
Defined
for the enforcement of this Act, including
personal services in the District of Co-
lumbia, and for the fiscal year ending
June 30, 1920, there is hereby appropri-
ated, out of any money in the Treasury
not otherwise appropriated, the sum of
$2,000,000 for the use of the Commis-
sioner of Internal Revenue and $100,000
for the use of the Department of Justice
for the enforcement of the provisions of
this Act, including personal services in
the District of Columbia, and necessary
printing and binding.
SEC. 39. In all cases wherein the prop-
erty of any citizen is proceeded against
or wherein a judgment affecting it might
be rendered, and the citizen is not the one
who in person violated the provisions of
the law, summons must be issued in due
form and served personally, if said per-
son is to be found within the jurisdiction
of the court.
TITLE III.
INDUSTRIAL ALCOHOL.
SEC. 1. When used in this title —
The term " alcohol" means that sub-
stance known as ethyl alcohol, hydrated
oxide of ethyl, or spirit of wine, from
whatever source or whatever processes
produced.
46
"Container"
Industrial
Alcohol
Permits
Warehouses
for Industrial
Alcohol
NATIONAL PROHIBITION ACT
The term "container" includes any re-
ceptacle, vessel, or form of package, tank,
or conduit used or capable of use for
holding, storing, transferring, or ship-
ment of alcohol.
INDUSTRIAL ALCOHOL PLANTS AND WARE-
HOUSES.
SEC. 2. Any person now producing al-
cohol shall, within thirty days after the
passage of this Act, make application to
the commissioner for registration of his
industrial alcohol plant, and as soon
thereafter as practicable the premises
shall be bonded and permit may issue for
the operation of such plant, and any per-
son hereafter establishing a plant for the
production of alcohol shall likewise be-
fore operation make application, file
bond, and receive permit.
SEC. 3. Warehouses for the storage and
distribution of alcohol to be used exclu-
sively for other than beverage purposes
may be established upon filing of appli-
cation and bonds, and issuance of permit
at such places, either in connection with
the manufacturing plant or elsewhere, as
the commissioner may determine; and
the entry and storage of alcohol therein,
and the withdrawals of alcohol therefrom
shall be made in such containers and by
such means as the commissioner by regu-
lation may prescribe.
NATIONAL PROHIBITION ACT
47
Transfer
Tax
Withdrawal
from Bonded
Warehouse
SEC. 4. Alcohol produced at any regis-
tered industrial alcohol plant or stored in
any bonded warehouse may be trans-
ferred under regulations to any other reg-
istered industrial alcohol plant or bonded
warehouse for any lawful purpose.
SEC. 5. Any tax imposed by law upon
alcohol shall attach to such alcohol as
soon as it is in existence as such, and all
proprietors of industrial alcohol plants
and bonded warehouses shall be jointly
and severally liable for any and all taxes
on any and all alcohol produced thereat
or stored therein. Such taxes shall be a
first lien on such alcohol and the prem-
ises and plant in which such alcohol is
produced or stored, together with all im-
provements and appurtenances thereunto
belonging or in any wise appertaining.
SEC. 6. Any distilled spirits produced
and fit for beverage purposes remaining
in any bonded warehouse on or before
the date when the eighteenth amendment
of the Constitution of the United States
goes into effect, may, under regulations,
be withdrawn therefrom either for de-
naturation at any bonded denaturing
plant or for deposit in a bonded ware-
house established under this Act; and
when so withdrawn, if not suitable as to
proof, purity, or quality for other than
beverage purposes, such distilled spirits
48
NATIONAL PROHIBITION ACT
Denaturing
Continuation
of Distillery
or Bonded
Warehouse
Production
of Industrial
Alcohol
Exemption
from Existing
Statutes
shall be redistilled, purified, and changed
in proof so as to render such spirits suit-
able for other purposes, and having been
so treated may thereafter be denatured
or sold in accordance with the provisions
of this Act.
SEC. 7. Any distillery or bonded ware-
house heretofore legally established may,
upon filing application and bond and the
granting of permit, be operated as an in-
dustrial alcohol plant or bonded ware-
house under the provisions of this title
and regulations made thereunder.
SEC. 8. Alcohol may be produced at
any industrial alcohol plant established
under the provisions of this title from
any raw materials or by any processes
suitable for the production of alcohol,
and, under regulations, may be used at
any industrial alcohol plant or bonded
warehouse or sold or disposed of for any
lawful purpose, as in this Act provided.
SEC. 9. Industrial alcohol plants and
bonded warehouses established under the
provisions of this title shall be exempt
from the provisions of sections 3154, 3244,
3258, 3259, 3260, 3263, 3264, 3266, 3267,
3268, 3269, 3271, 3273, 3274, 3275, 3279,
3280, 3283, 3284, 3285, 3286, 3287, 3288,
3289, 3290, 3291, 3292, 3293, 3294, 3295,
3302, 3303, 3307, 3308, 3309, 3310, 3311,
3312, 3313, 3314, and 3327 of the Revised
NATIONAL PROHIBITION ACT
49
Statutes; sections 48 to 60, inclusive, and
sections 62 and 67 of the Act of August
27, 1894 (Twenty-eighth Statutes, pages
563 to 568), and from such other provi-
sions of existing laws relating to distill-
ers and bonded warehouses as may, by
regulations, be declared inapplicable to
industrial alcohol plants and bonded
warehouses established under this Act.
Regulations may be made embodying
any provision of the sections above
enumerated.
Denaturing
Plants
Sale of
Denatured
Alcohol
Distilled
Vinegar
TAX-FREE ALCOHOL,.
SEC. 10. Upon the filing of application
and bond and issuance of permit dena-
turing plants may be established upon the
premises of any industrial alcohol plant,
or elsewhere, and shall be used exclusively
for the denaturation of alcohol by the ad-
mixture of such denaturing materials as
shall render the alcohol, or any compound
in which it is authorized to be used, unfit
for use as an intoxicating beverage.
Alcohol lawfully denatured may, under
regulations, be sold free of tax either for
domestic use or for export.
Nothing in this Act shall be construed
to require manufacturers of distilled vine-
gar to raise the proof of any alcohol used
in such manufacture or to denature the
same.
50
NATIONAL PROHIBITION ACT
Removal for
Denaturing
Tax Free
Withdrawal
SEC. 11. Alcohol produced at any in-
dustrial alcohol plant or stored in any
bonded warehouse may, under regula-
tions, be withdrawn tax free as provided
by existing law from such plant or ware-
house for transfer to any denaturing
plant for denaturation, or may, under
regulations, before or after denaturation,
be removed from any such plant or ware-
house for any lawful tax-free purpose.
Spirits of less proof than one hundred
and sixty degrees may, under regulations,
be deemed to be alcohol for the purpose
of denaturation, under the provisions of
this title.
Alcohol may be withdrawn, under reg-
ulations, from any industrial plant or
bonded warehouse tax free by the United
States or any governmental agency
thereof, or by the several States and Ter-
ritories or any municipal subdivision
thereof or by the District of Columbia, or
for the use of any scientific university or
college of learning, any laboratory for use
exclusively in scientific research, or for
use in any hospital or sanitorium.
But any person permitted to obtain al-
cohol tax free, except the United States
and the several States and Territories
and subdivisions thereof, and the District
of Columbia, shall first apply for and se-
cure a permit to purchase the same and
NATIONAL PROHIBITION ACT
51
give the bonds prescribed under Title II
of this Act, but alcohol withdrawn for
nonbeverage purposes for use of the
United States and the Several States,
Territories, and subdivisions thereof, and
the District of Columbia may be pur-
chased and withdrawn subject only to
such regulations as may be prescribed.
GENERAL PROVISIONS.
Penalties SEC. 12. The penalties provided in this
title shall be in addition to any penalties
provided in Title II of this Act, unless
expressly otherwise therein provided.
Regulations SEC. 13. The commissioner shall from
time to time issue regulations respecting
the establishment, bonding, and opera-
tion of industrial alcohol plants, denatur-
ing plants, and bonded warehouses au-
thorized herein, and the distribution, sale,
export, and use of alcohol which may be
necessary, advisable, or proper, to secure
the revenue, to prevent diversion of the
alcohol to illegal uses, and to place the
nonbeverage alcohol industry and other
industries using such alcohol as a chem-
ical raw material or for other lawful
purpose upon the highest possible plane
of scientific and commercial efficiency
consistent with the interests of the Gov-
ernment, and which shall insure an am-
ple supply of such alcohol and promote
52
NATIONAL PROHIBITION ACT
Remission
of Tax on
Lost Alcohol
Punishment
for Violation
of This Title
its use in scientific research and the de-
velopment of fuels, dyes, and other law-
ful products.
SEC. 14. Whenever any alcohol is lost
by evaporation or other shrinkage, leak-
age, casualty, or unavoidable cause dur-
ing distillation, redistillation, denatura-
tion, withdrawal, piping, shipment, ware-
housing, storage, packing, transfer, or
recovery of any such alcohol the commis-
sioner may remit or refund any tax in-
curred under existing law upon such al-
cohol, provided he is satisfied that the al-
cohol has not been diverted to any illegal
use: Provided, also, That such allowance
shall not be granted if the person claim-
ing same is indemnified against such loss
by a valid claim of insurance.
SEC. 15. Whoever operates an industrial
alcohol plant or a denaturing plant with-
out complying with the provisions of this
title and lawful regulations made there-
under, or whoever withdraws or attempts
to withdraw or secure tax free any alco-
hol subject to tax, or whoever otherwise
violates any of the provisions of this title
or of regulations lawfully made thereun-
der shall be liable, for the first offense, to
a penalty of not exceeding $1,000, or im-
prisonment not exceeding thirty days, or
both, and for a second or cognate offense
to a penalty of not less than $100 nor more
NATIONAL PROHIBITION ACT
53
Collection
of Tax
Seizure of
Property
Application of
Existing Laws
Repeal of
Conflicting
Statutes
than $10,000, and to imprisonment of not
less than thirty days nor more than one
year. It shall be lawful for the commis-
sioner in all cases of second or cognate
offense to refuse to issue for a period of
one year a permit for the manufacture or
use of alcohol upon the premises of any
person responsible in any degree for the
violation.
SEC. 16. Any tax payable upon alcohol
under existing law may be collected ei-
ther by assessment or by stamp as regula-
tions shall provide; and if by stamp, reg-
ulations shall issue prescribing the kind
of stamp to be used and the manner of
affixing and canceling the same.
SEC. 17. When any property is seized
for violation of this title it may be re-
leased to the claimant or to any interven-
ing party, in the discretion of commis-
sioner, on a bond given and approved.
SEC. 18. All administrative provisions
of internal-revenue law, including those
relating to assessment, collection, abate-
ment, and refund of taxes and penalties,
and the seizure and forfeiture of prop-
erty, are made applicable to this title in
so far as they are not inconsistent with
the provisions thereof.
SEC. 19. All prior statutes relating to
alcohol as denned in this title are hereby
54 NATIONAL PROHIBITION ACT
repealed in so far as they are inconsistent
with the provisions of this title.
Canal Zone SEC. 20. That it shall be unlawful to
import or introduce into the Canal Zone,
or to manufacture, sell, give away, dis-
pose of, transport, or have in one's pos-
session or under one's control within the
Canal Zone, any alcoholic, fermented,
brewed, distilled, vinous, malt, or spirit-
uous liquors, except for sacramental, sci-
entific, pharmaceutical, industrial, or me-
dicinal purposes, under regulations to be
made by the President, and any such liq-
uors within the Canal Zone in violation
hereof shall be forfeited to the United
States and seized: Provided, That this
section shall not apply to liquor in transit
through the Panama Canal or on the Pan-
ama Railroad.
That each and every violation of any
of the provisions of this section shall be
punished by a fine of not more than
$1,000 or imprisonment not exceeding six
months for a first offense, and by a fine
not less than $200 nor more than $2,000
and imprisonment not less than one month
nor more than five years for a second or
subsequent offense.
That all offenses heretofore committed
within the Canal Zone may be prosecuted
and all penalties therefor enforced in the
NATIONAL PROHIBITION ACT 55
same manner and to the same extent as
if this Act had not been passed.
*
When Act SEC. 21. Titles I and III and sections
Effective ^ 2?> 37> and gg Qf title jj Qf ^ A(jt
shall take effect and be in force from and
after the passage and approval of the
Act. The other sections of title II shall
take effect and be in force from and after
the date when the eighteenth amendment
of the Constitution of the United States
goes into effect.
Constitutionality and Preliminary
Consideration
There have been many judicial decisions as to the constitu-
tionality of the various state prohibition laws, but the en-
tirely new point of departure supplied by the Prohibition
Amendment to the Federal Constitution, makes it exceed-
ingly unlikely, if not impossible, that any question as to the
constitutionality of this "National Prohibition Act" will be
successfully raised ; except, possibly, as to whether the
Eighteenth Amendment itself was constitutionally adopted,
or whether the provisions of the Act are within the author-
ity conferred upon Congress by the said amendment. We
shall therefore be very brief in our treatment of its consti-
tutionality as substantive law, in most cases giving merely
a citation of the decisions.
As to Constitutionality of Special Provisions. — See
post, where their subject matter is treated.
The XVmth Amendment to the Constitution of the United
States.
Not a Law Complete in Itself. — The prohibition
amendment to the federal Constitution is not a law complete
in itself, in that it fixes no penalty for its violation.
Ford v. State (Tex. Civ. App.), 209 S. W. 490, 494.
Validity and Mode of Adoption. — The addition to the
Constitution of the United States of an amendment prohib-
iting the manufacture, sale, etc., of intoxicating liquors, is an
amendment of the organic law, and not prohibited by article
10, reserving to the states or people the powers not dele-
gated'to the United States by the Constitution, nor prohib-
ited by it to the states.
Ohio v. Cox (D. C), 257 Fed. 334, 335.
58 CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION
The requirement of Const. U. S. art. 5, that "two-thirds
of both houses" shall propose amendments for adoption or
rejection by the state Legislatures, means two-thirds of a
quorum of each house, and not two-thirds of the whole
membership of each, since "house" means a body of men
united in their legislative capacity.
Ohio v. Cox (D. C.), 257 Fed. 334, 336.
Congress has no concern of the manner in which the peo-
ple of the several states pass upon proposed amendments
to the United States Constitution.
Mullen v. Howell (Wash.), 181 Pac. 920.
The authority to act in the matter of a proposed amend-
ment to the Constitution of the United States does not arise
in or out of the Constitution of the state, but arises out of
the federal Constitution, and any act, whether by resolution
or bill, on the part of the state Legislature, is a sufficient
expression of the legislative will, unless Congress itself chal-
lenges the method or manner of its adoption.
Mullen v. Howell (Wash.), 181 Pac. 920.
Referendums. — Const. U. S. art. 5, providing that pro-
posed amendment shall be valid "when ratified by the Leg-
islatures of three-fourths of the several states, or by con-
ventions in three-fourths thereof," does not preclude sub-
mission of joint resolution of state Legislature ratifying
proposed amendment to a referendum, the words "Legisla-
tures" and "conventions" not having present-day meanings,
the former referring to legislative authority, including all
its branches, and not merely the legislative assembly.
Mullen v. Howell (\Vash.), 181 Pac. 920.
Under the Washington State Const, Amend. 7, art. 2, § 1,
providing for referendum of "acts, bills, or laws," joint
resolution of state Legislature ratifying constitutional
amendment for national prohibition proposed by Res. Dec.
19, 1917, 40 Stat. 1050, is subject to referendum, the amend-
ment to the United States Constitution being a law within
the seventh amendment of the state Constitution.
Mullen v. Howell (Wash.), 181 Pac. 920.
But it was held by the Oregon Supreme Court that nei-
CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION 59
ther House Joint Resolutions No. 1, ratifying proposed
"National Prohibition Amendment," nor any other resolu-
tion of the Legislature, is subject to referendum by Oregon
Const, art. 4, §§ 1, la; such sections applying only to pro-
posed laws.
Herbring v. Brown, (Ore.), 180 Pac. 328.
To ascertain what is meant by the term "bill" and "act"
in Const, art. 4, §§ 1, la (amended), as to initiative and ref-
erendum, reference must be made to the sense in which the
words were used before such amendments were passed, and,
when reference is so made, it is found that the first term
means a proposed law (article 4, § 1 [original], and sections
18, 19; article 5, § 15), while the second means a bill which
has been enacted by the Legislature into a law (article 4, §§
20, 21, 22, 28) ; a "joint resolution" being neither a bill nor
an act.
Herbring v. Brown, (Ore.), 180 Pac. 328.
The subject matter upon which the powers given by Const,
art. 4, §§ 1, la, may be exercised, namely, initiative laws,
constitutional amendments, and acts of the Legislature re-
ferred to the people, are referred to collectively as "meas-
ures merely as a matter of convenience and not with intent
to include other and different powers."
Herbring v. Brown, (Ore.), 180 Pac. 328.
But in mandamus to compel submission of joint resolution
ratifying amendment to United States constitution, the con-
tention that the Legislature has no power to act by resolution
is nonjusticiable ; the power to question the manner of adop-
tion being in Congress, and not the courts.
Mullen v. Howell, (Wash.), 181 Pac. 920.
Police Powers of States to Regulate, Restrict or Forbid
the Manufacture or Sale, Gift, Purchase and Trans-
portation of Intoxicating Liquors, Fully Recognized.
In General. — It must now be regarded as settled that, on
account of their well-known noxious qualities and the extra-
ordinary evils shown by experience commonly to be conse-
quent upon their use. a state has power absolutely to pro-
hibit manufacture, gift, purchase, sale, or transportation of
60 CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION
intoxicating liquors within its borders without violating the
guarantees of the fourteenth Amendment.
Seaboard Air Line Railway v. North Carolina, 245 U.
S. 298, 38 Sup. Ct. 96, 62 L. Ed. 299.
Clark Distilling Co. v. Western Maryland R. Co., 242 U.
S. 311, 321, 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A.
1917B, 1218n, Ann. Cas. 1917B, 845.
Crane v. Campbell, 245 U. S. 304, 38 Sup. Ct. 98, 62 L.
Ed. 304.
Eberle v. Michigan, 232 U. S. 700, 34 Sup. Ct. 464.
Purity Extract, etc., Co. v. Lynch, 226 U. S. 192, 201,
33 Sup. Ct. 44, 57 L. Ed. 184.
Crowley v. Christensen, 137 U. S. 86, 91, 77 Sup. Ct.
13, 9 Sup. Ct. 6, 34 L. Ed. 620.
Kidd v. Pearson, 128 U. S. 1, 32 L. Ed. 346, 2 Interst.
Com. Rep. 232.
Mugler v. Kansas, 123 U. S. 623, 662, 8 Sup. Ct. 273,
31 L. Ed. 205.
Beer Co. v. Massachusetts, 97 U. S. 25, 33, 24 L. Ed.
989.
Bartemeyer v. Iowa, 18 Wall. 29, 21 L. Ed. 929.
Black v. Delaye, 193 Ala. 500, 68 So. 993, L. R. A.
1915E, 640.
Fine v. Moran (Fla.), 77 So. 533.
Henderson v. Heyward, 109 Ga. 373, 34 S. E. 590, 47
L. R. A. 366, 77 Am. St. Rep. 384.
Mack v. Westbrook, 148 Ga. 690, 98 S. E. 339, 341.
Fitch v. State, 102 Neb. 361, 167 N. W. 417, 419.
State v. Germain (N. D.), 170 N. W. 121.
State v. Tincher, 81 W. Va. 441, 94 S. E. 503.
Stratford v. Seattle Brewing, etc., Co., 94 Wash. 125,
162 Pac. 31, L. R. A. 1917C, 931n.
Taylor v. Wildman (la.), 145 N. W. 449, 451.
People v. Wheeler, 185 Mich. 164, 151 N. W. 710.
Ex parte Davis (Tex. Cr. App.), 215 S. W. 341.
It is also well established that, when a state, exerting its
recognized authority, undertakes to suppress what it is free
to regard as a public evil, it may adopt such measures hav-
ing reasonable relation to that end as it may deem necessary
in order to make its action effective. It does not follow that
because a transaction separately considered, is innocuous,
CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION 61
it may not be included in a prohibition the scope of which is
regarded as essential in the legislative judgment to accom-
plish a purpose within the admitted power of the govern-
ment.
Booth v. Illinois, 184 U. S. 425, 22 Sup. Ct. 425, 46 L.
Ed. 623.
Otis v. Parker, 187 U. S. 606, 23 Sup. Ct. 168, 47 L.
Ed. 323.
Ah Sin v. Wittman, 198 U. S. 500, 504, 25 Sup. Ct.
756,49 L. Ed. 1142, 1144.
Silz r. Hesterburg, 211 U. S. 31, 29 Sup. Ct. 10, 53 L.
Ed. 75.
Murphy v. California, 225 U. S. 623, 32 Sup. Ct. 697,
56 L. Ed. 1229, 41 L. R. A., N. S., 153.
Purity Extract, etc., Co. v. Lynch, 226 U. S. 192, 33
Sup. Ct. 44, 57 L. Ed. 184.
See also, Crane v. Campbell, 245 U. S. 304, 38 Sup. Ct.
98, 62 L. Ed. 304.
Rast v. Van Deman, etc., Co., 140 U. S. 342, 36 Sup. Ct.
370, 60 L. Ed. 679, L. R. A. 1917A, 421n, Ann Cas.
1917B, 455.
Mack v. Westbrook, 148 Ga. 690, 98 S. E. 339, 341.
Fitch v. State, 102 Neb. 361, 167 N. W. 417.
Thatcher v. Reno Brewing Co. (Nev.), 178 Pac. 902.
Johnson v. State, 75 Tex. Cr. App. 177, 171 S. W. 211.
The power of the states, under their Constitutions and
under the federal Constitution, to prohibit the manufacture
and sale of intoxicating liquor and to provide such means
for the enforcement of prohibition as seems expedient to
the Legislature, is now so well settled that it is no longer an
open question.
Crane v. Campbell, 245 U. S. 304, 38 Sup. Ct. 98, 62
L. Ed. 304.
Seaboard Air-Line Railway v. Ncrth Carolina, 245 U.
S. 298, 38 Sup. Ct. 96, 62 L. Ed. 299.
Clark Distilling Co. v. Western Maryland R. Co., 242
U. S. 311. 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A.
1917B, 1218n, Ann. Cas. 1917B, 845.
Giozza i'. Tierman, 148 U. S. 657, 13 Sup. Ct. 721, 37
L. Ed. 599.
62 CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION
Crowley v. Christensen, 137 U. S. 86, 11 Sup. Ct. 13, 34
L. Ed. 620.
Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L.
Ed. 205.
Bartemeyer v. Iowa, 18 Wall. 129, 21 L. Ed. 929.
Black v. Delaye, 193 Ala. 500, 68 So. 993, L. R. A.
191 5E, 640.
Delaney v. Plunkett, 146 Ga. 547, 91 S. E. 561, L. R. A.
1917D, 926, Ann. Cas. 1917E, 685.
Cureton v. State, 135 Ga. 660, 70 S. E. 332, 49 L. R.
A., N. S., 182n.
In re Crane, 27 Idaho 671, 151 Pac. 1006, L. R. A.
1918A, 942.
Schmitt v. Cook Brewing Co. (Ind.), 120 N. E. 19, 22.
State v. Kurent (Kan.), 181 Pac. 603.
State v. Macek, 104 Kan. 742, 180 Pac. 985.
State v. Durein, 70 Kan. 1, 78 Pac. 152, 15 L. R. A.,
N. S., 908, and note.
State v. Seaboard Air-Line R. Co., 169 N. C. 295, 84
S. E. 283.
State v. Fargo Bottling Works Co., 19 N. D. 396, 124
N. W. 387, 26 1L. R. A., N. S., 872n.
Motlow v. State, 125 Tenn. 547, 145 S. W. 177, L. R
A. 1916F, 177.
Ex parte Fulton (Tex. Cr. App.), 215 S. W. 331.
State v. Lovell (1847), 47 Vt. 493.
State v. Fabbri, 98 Wash. 207, 167 Pac. 133, L. R. A.
1918A, 416.
State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A.
1917B, 962n.
State v. Davis, 77 W. Va. 271, 87 S. E. 262, L. R. A.
1917C, 639.
And a state act making it unlawful "to have or keep"
intoxicating liquors in a public place in local option terri-
tory, or to transport liquor therein, does not deny any right
guaranteed by the federal Constitution.
Ex parte Fulton (Tex. Cr. App.), 215 S. W. 331.
Prohibition of Possession as Ex Post Facto Law or
Denial of Due Process of Law. — A state statute making
it unlawful to have possession of intoxicating liquor for
CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION 63
sale, in force from and after April 1, 1913, and ratified
March 3, 1913, is not objectionable as ex post facto when
applied to the finding of liquor in the possession of accused
April 17, 1913, in the absence of anything to show that the
liquor was acquired prior to the ratification of the act.
State v. Denton, 164 N. C. 530, 80 S. E. 401.
And the application of Laws Ga. (Ex. Sess.) 1915, pt.
1, tit. 2, §§ 16 and 30, making it illegal to have in possession
more than one gallon of vinous liquor, to the possession of
liquor acquired after the law was enacted, but before it be-
came effective, does not render that act invalid.
Barbour v. Georgia, 249 U. S. 454, 39 S. Ct. 316.
Nor does it render that act invalid as depriving of prop-
erty without due process of law.
Barbour v. Georgia, 249 U. S. 454, 39 S. Ct. 316.
Whether the prohibition of sale may be constitutionally
applied to liquor acquired before the enactment of the stat-
ute was raised in Bartemeyer v. Iowa, 18 Wall. 129, 21 L.
Ed. 929, and Beer Co. v. Massachusetts, 97 U. S. 25, 33, 24
L. Ed. 989, but was not decided. The question presented
here, however, is simpler.
Barbour v. Georgia, 249 U. S. 454, 39 S. Ct. 316.
Right to Define as Intoxicant and Otherwise Pre-
vent the Traffic. — "To prohibit the traffic the Legislature
may define as an intoxicant that which is far from intoxi-
cating, in order to prevent the manufacture and sale of that
which is intoxicating; that it may prevent the possession
of liquor; that it may provide that the place where liquor
is kept or manufactured may be declared a nuisance and
closed ; that it may designate those who are to handle and
dispense liquor and upon what terms ; that it may forbid
advertisements of liquor; that it may provide what shall
make a prima facie case of violation of the law. All of
these provisions are properly connected with the purpose of
the Legislature to prevent the traffic in intoxicating liquor
as a beverage and are therefore within the title of the act."
Schmitt v. Cook Brewing Co. (Ind.), 120 N. E. 19, 23.
Nor does the clause, "or any alcoholic compound of malt
64 CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION
or liquors whether intended for beverage purposes or not,
but which can be diluted, and when so diluted may be used
as a beverage and will produce intoxication," etc., render
the act obnoxious to the paragraph of a state constitution
which declares that protection to person and property is the
paramount duty of government, and shall be impartial and
complete. Nor does it render the act void because violative
of the due process clause of that constitution.
Jackson v. State, 148 Ga. 351, % S. E. 1001.
While total prohibition of nonintoxicants is recognized
as a valid means of suppressing the liquor traffic (Purity
Extract, etc., Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44,
57 L. Ed. 184), yet it is a means which ought to appear
plainly in the act. Such a suppression of a drink confess-
edly harmless in itself cannot be implied from general lan-
guage prohibiting intoxicating liquors.
Hoffmann Brewing Co. v. McElligott (D. C.), 259
Fed. 321.
Constitutional Provision Not an Implied Limitation
on Legislative Power. — A constitutional provision au-
thorizing the prohibition of the sale of intoxicating liquor,
is not an implied limitation on legislative power, and the
Legislature has not only the authority, but must pass all
laws necessary and appropriate to prevent illegal sales.
Longmire v. State, 75 Tex. Cr. App. 616, 171 S. W.
1165, L. R. A. 1917A, 726.
The Virginia Constitution, 1902, § 62, providing that the
General Assembly shall have full power to enact local op-
tion laws, gives no new power to the Legislature, but is
simply declaratory of the existing law, although it places no
restriction whatever upon the legislative power.
Pine v. Commonwealth, 121 Va. 812, 93 S. E. 652.
See also, Ex parte Fulton (Tex. Cr. App.), 215 S. W.
331.
Ex parte Davis (Tex. Cr. App.), 215 S. \V. 341.
Gulf, etc., R. Co. v. State (Tex. Cr. App.), 212 S. W.
845.
United States v. James (D. C.), 256 Fed. 102, as to
effect of like provision of Texas Constitution.
CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION 65
Prohibiting Importation. — The state has plenary power
to prohibit the importation of ardent spirits into the state
for any purpose.
Lucchesi v. Commonwealth, 122 Va. 872, 94 S. E. 925.
Prohibition of All Shipments. — A state may, consist-
ently with the due process of law clause of U. S. Const.
14th Amend., forbid all shipments of intoxicating liquor,
whether intended for personal use or otherwise.
Clark Distilling Co. v. Western Maryland R. Co., 242
U. S. 311, 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A.
1917B, 1218n, Ann. Cas. 1917B, 845.
Right to Regulate Other Liquors, Whether Intoxi-
cating or Not, in Connection with Prohibited Liquors.
— The right of the Legislature to reasonably prohibit the
manufacture, sale, or other disposition of other liquors,
whether intoxicating or not, in connection with the prohib-
ited liquors is well settled.
Southern Pac. Co. v. Jensen, 244 U. S. 205, 217, 37
Sup. Ct. 524, 61 L. Ed. 1086, Ann. Cas. 1917E, 900.
Wilson v. New, 243 U. S. 332, 346, 37 Sup. Ct. 298, 61
L. Ed. 755, L. R. A. 1917E, 938.
Clark Distilling Co. v. Western Maryland R. Co., 242
U. S. 311, 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A.
1917B, 1218n, Ann. Cas. 1917B, 845.
Purity Extract, etc., Co. v. Lynch, 226 U. S. 192, 33
Sup. Ct. 44, 57 L. Ed. 184.
Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L.
'Ed. 205.
Butterfield v. United States, 154 C. C. A. 332, 241
Fed. 556.
Southern Exp. Co. v. Whittle, 194 Ala. 406, 423, 69 So.
652, L. R. A. 1916C. 278.
Black v. Delaye, 193 Ala. 500, 520, 68 So. 993, L. R.
A. 1915E, 640.
Ex parte Woodward, 181 Ala. 97, 106, 61 So. 295.
Marks v. State, 159 Ala. 71, 80, 48 So. 864, 133 Am. St.
Rep. 20.
Lambie v. State. 151 Ala. 86, 91, 44 So. 51.
Dinkins v. State, 149 Ala. 49, 43 So. 114.
—5
66 CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION
State v. Mattox Cigar, etc., Co. (Ala.), 77 So. 756.
Louisville, etc., R. Co. v. State (Ala. App.), 76 So. 505,
512.
Black v. Southern Exp. Co. (Ala.), 75 So. 343.
Theatrical Club v. State (Ala.), 74 So. 969.
State v. O'Connell, 99 Me. 61, 58 Atl. 59.
State v. Jenkins, 64 N. H. 375, 10 Atl. 699.
Luther v. State, 83 Neb. 455, 120 N. W. 125, 20 L. R.
A., N. S., 1146n.
State v. York, 74 N. H. 125, 127, 65 Atl. 685, 13 Ann.
Cas. 116.
Guilbert v. Kaufman, 68 Ohio St. 635, 67 N. E. 1062.
Pennell v. State, 141 Wis. 35, 123 N. W. 115.
A state may, in the exercise of its police power, prohibit
the manufacture and sale of intoxicating liquor, and to the
end of making the prohibition effectual may include in the
prohibition nonintoxicating malt liquors.
Purity Extract, etc., Co. v. Lynch, 226 U. S. 192, 33
Sup. Ct. 44, 57 L. Ed. 184.
S. C., 100 Miss. 650, 56 So. 316.
State v. George, 136 La. 906, 67 So. 953.
Fine v. Moran (Fla.), 77 So. 533.
See contra, Elder v. State, 162 Ala. 41, 50 So. 370.
See also post, "Powers to Define under Sec. 1, Title II.
"The manufacture and sale of drinks made in imitation
of or intended as a substitute for intoxicating drinks as
specified in the Act, although not intoxicating themselves,
afford a cloak for clandestine manufacture, sale, etc., of
intoxicants — the evil which the legislation was designed to
prevent. Under such circumstances, the power to prohibit
the manufacture, sale, etc., of the beverages will include the
power also to prohibit the manufacture and sale of substi-
tutes and imitations."
Purity Extract, etc., Co. v. Lynch, 226 U. S. 192, 33
Sup. Ct. 44, 57 L. Ed. 184.
Kunsberg v. State, 147 Ga. 591, 95 S. E. 12.
See also, State v. George, 136 La. 906, 67 So. 953.
Claunch v. State (Tex. Cr. App.), 203 S. W. 981.
State v. Labrecque, 78 N. H. 182, 97 Atl. 747.
CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION 67
Prohibition of Manufacture. — "There is no difference
in constitutional principle between the prohibition of the
sale of intoxicating liquor as a beverage and the prohibition
of the manufacture in order to stop the sale. The thing
aimed at is the traffic in liquor as a beverage. If the peo-
ple of the state, in order to stop the traffic in the beverage,
deem it necessary to stop the manufacture, they have a
right to do this as far as any limitations in our Constitu-
tion are concerned."
Schmitt v. Cook Brewing Co. (Ind.), 120 N. E. 19, 21.
See also, United States v. James (D. C.), 256 Fed. 102.
A state law prohibiting manufacture for personal use
solely does not violate the Fourteenth Amendment to the
Federal Constitution, or the provisions of State Constitu-
tions, declaring that no person shall be deprived of life,
liberty, or property without due process of law, and that no
person shall be disturbed in his private affairs or his home
invaded without authority of law.
State v. Fabbri, 98 Wash. 207, 167 Pac. 133.
State v. Marastoni, 85 Ore. 37, 165 Pac. 1177.
Prohibiting Action as Agent in Purchase or Sale. —
A statute prohibiting any person from acting as the agent
of another in the purchase or sale of intoxicating liquors,
does not abridge any privilege or immunity guaranteed to
citizens of the United States by the fourteenth amendment
to the federal Constitution.
State v. Germain (N. D.), 170 N. W. 121.
Under Interstate Commerce Clause of Federal Con-
stitution.—Act March 1, 1895, c. 145, 28 Stat. 693, for-
bidding the introduction of intoxicating liquor into Indian
Territory, as limited to interstate commerce by the Okla-
homa Enabling Act, is not unconstitutional, as discriminat-
ing between the States in respect of trade and commerce in
intoxicating liquors.
De Moss v. United States, 162 C. C. A. 259, 250 Fed. 87.
Effect of Webb-Kenyon Act. — The Acts 35th Leg. of
Texas (Fourth Called Sess.) c. 24, § 3, making it unlawful
for any railroad to transport within or import into the state
68 CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION
intoxicants, or for any person to receive the same or to de-
liver the same, in so far as it interferes with interstate com-
merce, is made valid by Webb-Kenyon Act (U. S. Comp. St.
845.)
Gulf, etc., R. Co. v. State (Tex. Civ. App.), 212 S. W.
854.
For other cases construing Reed Amendment, the
Webb-Kenyon Act, and similar Acts of Congress,
see post under Sec. 3, where transportation of
liquor into or through dry territory is treated.
Constitutionality of Reed Amendment and Webb-
Kenyon Act. — ''Whatever doubt may have existed as to
the power of Congress to pass the Reed Amendment has
been finally and fully set at rest by the decision of the Su-
preme Court in the case of Clark Distilling Co. v. Western
Maryland R. Co., 242 U. S. 311, 325, 37 Sup. Ct. 180, 61
L. Ed. 326, L. R. A. 1917B, 1218n, Ann. Cas. 1917B, 845,
followed by Seaboard Air Line Railway v. North Carolina,
245 U. S. 298, 303, 38 Sup. Ct. 96, 62 L. Ed. 299. Though
these cases are specific affirmations of the validity of the
Webb-Kenyon Law (Act March 1, 1913, c. 90, 37 Stat. 699
[Comp. St. § 8739]), they as certainly establish the valid-
ity of the Reed Amendment, because they concern, not
merely a specific legislative act, but the principle upon which
it rests."
United States v. James (D. C.), 256 Fed. 102, 103.
Conflicting Laws and Constitutional Provisions.—
Congress having exercised its authority in a matter within
its control, conflicting state laws must give way.
United States v. Hill, 248 U. S. 420, 39 S. Ct. 143.
The provision of Florida Laws 1918 (Sp. Sess.) c. 7736,
making it unlawful for any person to have in his possession
any intoxicating liquors, except that any person over 21 may
possess for his personal use or that of himself and family
four quarts of intoxicating liquors and 20 quarts in malt liq-
uors, does not violate section 1, Declaration of Rights, pro-
viding that all men have the right of enjoying life, liberty,
and property; nor article 19 of state Constitution as
CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION 69
amended (see Laws 1917, vol. 1, pp. 323, 324), forbidding
manufacture and sale of intoxicating liquors.
Marasso v. Van Pelt (Fla.), 81 So. 529.
There is no such repugnance or doubt as to the meaning
of the provisions of Texas Acts 35th Leg. (Fourth Called
Sess.) c. 24, relating to transportation and receipt of intoxi-
cating liquors as to render the same void.
Gulf, etc., R. Co. v. State (Tex. Civ. App.), 212 S. W.
845.
Acts 35th Leg. (Fourth Called Sess.) c. 24, § 3, making
it unlawful for any railroad to transport within or import
into the state intoxicants, or for any person to receive the
same or to deliver the same, is not in conflict with any ex-
isting law.
Gulf, etc., R. Co. v. State (Tex. Civ. App.), 212 S. W.
845.
Right of Cities to Prohibit and Regulate. — Even
though the state has assumed jurisdiction of the subject of
intoxicating liquors, this does not impliedly remove the right
of cities to prohibit the sale and use of liquors within their
limits.
Zamata v. Browning (Utah), 170 Pac. 1057.
South Carolina Civ. Code 1912, § 2994, giving city coun-
cils authority to make all ordinances necessary for preserv-
ing health and good government within the city, authorized
an ordinance prohibiting the sale of cider without a certifi-
cate of a licensed physician that it is to be used for medi-
cinal purposes.
Dillon v. Saleeby (S. C.), 81 S. E. 153.
When authorized by its charter, a municipal corporation
may by ordinance duly enacted designate the localities with-
in its corporate limits wherein the sale of intoxicating liq-
uors licensed under the state law may be sold and make it
unlawful to sell elsewhere within the bounds of the city.
Terretto v. State (Tex. Cr. App.), 215 S. W. 329.
When authorized by its charter, a municipal corporation
may by ordinance duly enacted designate the localities with-
70 CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION
in its corporate limits wherein the sale of intoxicating liq-
uors licensed under the state law may be sold and make it
unlawful to sell elsewhere within the bounds of the city,
and the Constitution does not restrict the power of the Leg-
islature to prescribe a penalty for refusal to observe such
city regulations.
Terretto v. State (Tex. Cr. App.), 215 S. W. 329.
Repeal of Statutes and Amendment of Constitu-
tions.— The Zone Liquor Law, § 3, was not repealed or
superseded by Acts 35th Leg. 4th Called Sess. 1918, c. 24,
§ 3, nor was the latter act repealed or superseded by chap-
ter 31, relating to sales and transportation of intoxicating
liquor.
Ex parte Roya (Tex. Cr. App.), 215 S. W. 322.
Any law which might be in conflict with Texas Acts 35th
Leg. (Fourth Called Sess.) c. 24, § 3, as to transportation
or receipt of intoxicants, would be repealed thereby by im-
plication, notwithstanding other sections of the chapter pro-
vide that all other laws prohibiting or regulating sale of in-
toxicants shall remain in full force and effect.
Gulf, etc., R. Co. v. State (Tex. Civ. App.), 212 S. W.
845.
Article 19 of the Florida state Constitution, providing for
local option sales of intoxicating liquors, remained in force
until January 1, 1919, when it was superseded by the amend-
ment to article 19 forbidding the manufacture, sale, barter,
or exchange of alcoholic or intoxicating liquors and bev-
erages in this state; therefore a conviction for a violation
in November and December, 1918, of the local option pro-
visions of the statute, was authorized.
Correlis v. State (Fla.), 82 So. 601.
If Liquor Cannot Be Legally Acquired or Procured,
It May Not Be Legally Used. — "It necessarily follows
that the very purpose and intent of the act was to preclude
the right to use intoxicating liquor within the state except
for the specific purposes in the act expressly mentioned and
reserved. If liquor can not be legally acquired or procured,
it may not be legally used. While the law is somewhat
CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION 71
drastic in some of its provisions — doubtless it was so in-
tended to be — yet in view of the tendency of present day
legislative enactments, designed to protect the health,
safety, morals and promote the general welfare of organized
society, it is not the province of the courts to disregard the
purpose and intent of the Legislature so long as the consti-
tutional rights of the individual have not been invaded."
State v. Certain Intoxicating Liquors (Utah), 172 Pac.
1050, 1052.
Title of Act and Mode of Adoption. — Where an act
of the legislature has for its subject "traffic in intoxicating
and nonintoxicating liquors," it is not void as being in vio-
lation of the constitutional requirements regarding titles to
statutes because it contains provisions prohibiting the manu-
facture, sale, or keeping for sale intoxicating and nonin-
toxicating liquors, as that term is defined by the act.
Fine v. Moran (Fla.), 77 So. 533.
A clause extending the prohibitory provisions of the act
to any alcoholic compound or malt or liquors, whether in-
tended for beverage purposes or not, but which can be di-
luted, and when so diluted may be used as a beverage and
will produce intoxication, does not render the act obnox-
ious to the constitution, which inhibits the passage of any
law containing matter different from what is expressed in
the title thereof. Nor does that clause render the act vio-
lative of the constitutional provision embraced in the para-
graph of the constitution referred to, which declares that no
law shall pass which refers to more than one subject mat-
ter, although the law also contains a provision extending its
prohibition to any spirituous, vinous malt, fermented or in-
toxicating liquors, or any of the prohibited liquors or bev-
erages, which are defined in an act entited: "An act to
make clearer and more certain the prohibition laws."
Jackson v. State, 148 Ga. 351, 96 S. E. 1001.
The Virginia Prohibition Act, § 39, is not unconstitu-
tional under Const. 1902, § 52 (Code 1904, p. ccxxi), in
that the body of the act makes it a crime merely to "trans-
port" liquor, and the title of the act relates to "transporta-
72 CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION
tion for sale," because such regulation is germane to and in
furtherance of the "enforcement" of the statute.
Burton v. Commonwealth, 122 Va. 847, 94 S. E. 923.
See also, People v. Humphrey, 194 Mich. 10, 160 N.
W. 445, set out post under Sec. 8.
As to validity of act passed at special session of state
legislature, under form of proclamation of Govern-
or calling the session, and its conformity thereto,
see Ex parte Fulton (Tex. Cr. App.), 215 S. W. 331.
Ex parte Davis (Tex. Cr. App.), 215 S. W. 341.
Gulf, etc., Co. v. State (Tex. Civ. App.), 212 S. W. 845.
Right to Complain. — A statute, relating to intoxicating
liquors, will not be declared invalid in certain of its sections
at the instance of one convicted under another section, and
not prejudiced by its enforcement, nor affected by it.
Land v. State (Fla.), 81 So. 159.
Construction — Prohibited Liquors as Subject of
Criminal Offense. — An interstate shipment of whisky had
a legal value in Alabama, and contention that defendant
cannot be convicted of breaking into freight cars where liq-
uor was being kept or under larceny count will be overruled.
Wiley v. State (Ala.), 81 So. 343.
Outlawed whisky may be the subject of grand larceny,
where taken from one claiming ownership, although the law
would not afford any one damages for its taking or give any
one relief looking to its recovery.
State v. Donovan (Wash.), 183 Pac. 127.
It is not a defense to a prosecution for having obtained
money under the false pretense that defendant had deliv-
ered whisky, when in fact the bottles delivered contained
only colored water, that the prosecuting witness parted with
his money in an endeavor to get defendant to violate the law
by selling liquor.
Hicks v. State (Ark.), 215 S. W. 685.
Though intoxicating liquor is contraband and without
monetary value, a false representation concerning it can be
CONSTITUTIONALITY AND PRELIMINARY CONSIDERATION 73
made the basis of a prosecution for obtaining money through
a false pretense.
Hicks v. State (Ark.), 215 S. W. 685.
Prohibited Liquors as Subject of Civil Contract. —
Contract of manufacturer, on selling to a soft drink mer-
chant a new beverage, warranting it to be nonintoxicating,
and agreeing to indemnify him against all damages for
prosecution for violation of prohibition law by reason of
retailing it, being entered into and acted on in good faith by
retailer, is not against public policy.
Owens v. Henderson Brewing Co. (Ky.), 215 S. W. 90.
Despite statute prohibiting interest of wholesale liquor
dealer in a saloon business, such a dealer or brewer may be
concerned with a saloon business in a legitimate financial
transaction by way of loan, mortgage, and lease; there be-
ing no direct or indirect payment of the license fee of the
retail saloon business.
Greene v. Atwood (Wash.), 180 Pac. 399.
But a contract made outside of the state for the sale of
whisky to be resold by the purchaser within the state, con-
trary to the law, is contrary to the public policy of the
state, and will not be enforced, even though it was valid in
the state where it was made.
Bluthenthal v. Kennedy, 165 N. C. 372, 81 S. E. 337.
And where defendant's intestate, either as agent or as a
principal, acting with plaintiff, sold intoxicating liquors sup-
plied by plaintiff in violation of the laws of a state, and
collected and received the purchase price therefor, plaintiff
could not sue for the balance of the amount so collected,
after deducting credits due the intestate, since the test of
recovery in such cases is whether there is a legal obligation
in favor of the plaintiff separate from the illegal transac-
tion, and requiring no aid from it, and the obligation of the
estate could not be separated from the sales by the intes-
tate, the debt resting upon such sales and the account aris-
ing therefrom.
Elder Harrison Co. v. Jervey, 97 S. C. 185, 81 S. E.
501.
74 CONSTITUTIONALITY AND PREUMINARY CONSIDERATION
But where part of money loaned by wholesale liquor
dealer or brewer to a saloon business is illegally applied in
payment of a retal liquor license, the courts will recognize
the divisibility of the loan into its legal and illegal parts.
Greene v. Atwood (Wash.), 180 Pac. 399.
Construction of Similar Statutes. — In the interpre-
tation of prohibition statutes, similar to those of other ju-
risdictions, they may reasonably be given the construction
applied by the courts of such jurisdiction, to such statutes
previously enacted.
Brown v. State, 17 Ariz. 314, 152 Pac. 578.
Liberal Construction.
See post, Sec. 3.
TITLE I— SECS. 1-7
[NOTE. As to decided cases applicable to this title, see
post under Title II, where the corresponding sub-
jects are treated.]
Constitutionality and Validity of War- Time Prohi-
bition.— The War-Time Prohibition Act of November 21,
1918, is constitutional.
United States v. Minery (D. C.), 259 Fed. 707.
United States v. Ranier Brewing Co. (D. C.), 259 Fed.
359.
And the provision of Act Nov. 21, 1918, § 1, prohibiting
the manufacture of beer, wine, or other intoxicating malt
or vinous liquors for beverage purposes, whether construed
to prohibit the manufacture of any beer or wine, or only
such as is intoxicating, is constitutional.
Hoffmann Brewing Co. v. McElligott (D. C.), 259 Fed.
321.
The statute intended to conserve food, to increase the
man power of the nation, and to protect the organization of
the army, by prohibiting the sale of beer which has a tend-
ency to intoxicate to such an extent as to interfere with the
morals, the physical welfare, or the good order of the com-
munity. Whether or not the mere sale of malt beer, even
though it have not sufficient alcohol content to fully intoxi-
cate, is of itself detrimental, whether the sale of such liquor
(even though it would not fully intoxicate) is disadvanta-
geous from the standpoint of the conservation of food, are
things with which the court has nothing to do. That is a
question for calm discretion of Congress, and it is evident
that Congress intended by the act under consideration to
prohibit the sale of such beer as it considered detrimental.
United States v. Schmauder (D. C.), 258 Fed. 251.
For Congress has constitutional power to prohibit the
manufacture and sale of intoxicating liquors during war.
United States v. Baumgartner (D. C.), 259 Fed. 722.
76 TITLE I— Sees. 1-7 OF ACT
Act Nov. 21, 1918 — Constitutionality — Power to En-
act.— It is evident if Congress, by making a tremendous
drain upon the resources of the country for immediate war
purposes, should thereby make it necessary to regulate the
use of material immediately thereafter, in order to bring
matters back to a normal base, the laws by which such res-
toration would be had can properly be made a part of the
military measures which must be adopted in order to carry
on the war and are therefore justified under the powers of
the United States in waging war, as has been decided in the
case of United States v. Minery, in this district, in an opin-
ion filed upon this day. 259 Fed. 707.
United States v. Schmauder (D. C.), 258 Fed. 251.
Does Not Infringe Xth Amendment. — War-Time Pro-
hibition Act Nov. 21, 1918, does not violate the Tenth
Amendment to the Federal Constitution, which reserves
to the states powers not delegated to Congress.
United States v. Minery (D. C), 259 Fed. 707.
Not Invalidated by XVHIth Amendment.— The Eigh-
teenth Amendment to the federal Constitution, providing
for national prohibition in 1920, does not invalidate War-
Time Prohibition Act Nov. 21, 1918, upon ground that pro-
hibition legislation is precluded until 1920.
United States v. Minery (D. C.), 259 Fed. 707.
War- Time Prohibition — Duration of Act. — Act Nov.
21, 1918, prohibiting the manufacture and sale of intoxi-
cating liquors "until the conclusion of the present war," is
applicable to a sale on July 8, 1919, since no treaty had
then been signed with Austria, and the army had not been
entirely demobilized.
United States v. Minery (D. C.), 259 Fed. 707.
TITLE II— SEC. 1
Definitions.
Beverages Included under Terms "Liquor" or "Intoxicat-
ing Liquor," etc. — Other Definitions— Powers of
Agents and Assistants — Filing Records.
Alcohol, Brandy, etc. — Spirituous, Vinous, Malt or Fer-
mented Liquor, etc.
Prohibition of Intoxicating Beverages.
Containing One-Half of 1 Per Cent or More of Alcohol
by Volume Fit for Use for Beverage Purposes.
Exceptions as to Dealcoholized Wine, or Any Beverage or
Liquid with Less Than One -Half of One Per Cent Al-
cohol, etc.
SEC. 1. When used in Title II and Title HI of this
Act (1) the word "liquor" or the phrase "intoxicating
liquor" shall be construed to include alcohol, brandy,
whisky, rum, gin, beer, ale, porter, and wine, and in ad-
dition thereto any spirituous, vinous, malt, or fermented
liquor, liquids, and compounds, whether medicated,
proprietary, patented, or not, and by whatever name
called, containing one-half of 1 per centum or more of
alcohol by volume which are fit for use for beverage
purposes: Provided, That the foregoing definition shall
not extend to dealcoholized wine nor to any beverage or
liquid produced by the process by which beer, ale, por-
ter or wine is produced, if it contains less than one-half
of 1 per centum of alcohol by volume, and is made as
prescribed in section 37 of this title, and is otherwise
denominated than as beer, ale, or porter, and is con-
tained and sold in, or from, such sealed and labeled bot-
78 TITLE II — SEC. 1 OF ACT
ties, casks, or containers as the commissioner may by
regulation prescribe.
Person Defined.
(2) The word "person" shall mean and include nat-
ural persons, associations, copartnerships, and corpora-
tions.
Commissioner.
(3) The word "commissioner" shall mean Commis-
sioner of Internal Revenue.
Application.
(4) The term "application" shall mean a formal
written request supported by a verified statement of
facts showing that the commissioner may grant the re-
quest.
Permit.
(5) The term "permit" shall mean a formal written
authorization by the commissioner setting forth specifi-
cally therein the things that are authorized.
Bond.
(6) The term "bond" shall mean an obligation au-
thorized or required by or under this Act or any regu-
lation, executed in such form and for such a penal sum
as may be required by a court, the commissioner or pre-
scribed by regulation.
Regulation.
(7) The term "regulation" shall mean any regula-
tion prescribed by the commissioner with the approval
of the Secretary of the Treasury for carrying out the
TITLE II— SEC. 1 OF ACT 79
provisions of this Act, and the commissioner is author-
ized to make such regulations.
Assistant or Agent of Commissioner.
Any act authorized to be done by the commissioner
may be performed by any assistant or agent designated
by him for that purpose. Records required to be filed
with the commissioner may be filed with an assistant
commissioner or other person designated by the com-
missioner to recive such records.
Dictionary Definitions. — " 'Ardent spirits' and 'spirit-
uous liquors' are terms of general use, and each has a well-
defined, well-understood meaning. In Webster's Interna-
tional Dictionary the term 'ardent' is defined as: 'Hot or
burning; causing a sensation of burning; fiery, as ardent
spirits — that is, distilled liquors.'
"Century Dictionary: Ardent spirits: 'Distilled alco-
holic liquors, as brandy, whisky, gin, rum.'
"Standard Dictionary: Ardent spirits: 'Alcoholic dis-
tilled liquors.'
"Worcester's Dictionary: Ardent spirits: 'A term ap-
plied to liquors obtained by distillation, such as rum,
whisky, brandy, and gin.'
"Black's Law Dictionary: Ardent spirits: 'Spirituous
or distilled liquors.'
" 'Spirituous liquor means distilled liquor.' 1 Woolen &
Thornton on the Law of Intoxicating Liquors, § 7.
"Spirituous: 'Containing much alcohol; distilled, whether
pure or compound, as distinguished from fermented; ar-
dent; applied to a liquor for drink.' Century Dictionary.
"Spirituous liquors: 'Any intoxicating liquor produced
by distillation or by rectifying, compounding or otherwise
treating or using distilled alcoholic fluids in distinction from
fermented or brewed intoxicating beverages.' Standard
Dictionary.
"Spirituous liquors: 'These are inflammable liquids pro-
duced by distillation and forming an article of commerce/
Black's Law Dictionary; Cyclopedic Law Dictionary.
80 TITLE II— SEC. 1 OF ACT
"Spirituous liquor: 'Distilled liquor.' Anderson's Law
Dictionary.
"The term 'spirituous liquor' means distilled liquor.
Black on Intoxicating Liquors, § 3.
" 'Spirituous liquor is that which is in whole or in part
composed of alcohol extracted by distillation; whisky,
brandy, and rum being examples.' 15 R. C. L. 249.
"In Sarlls v. United States, 152 U. S. 570, 14 Sup. Ct.
720, 38 L. Ed. 556, the Supreme Court of the United States
approved the definitions as given by Webster, Worcester,
and Century Dictionaries. In United States v. Ellis (D.
C.), 51 Fed. 808, the court, in speaking of these terms used
in a prohibition statute, said : ' "Ardent" and "spirituous"
are used indiscriminately as having the same meaning.' '
State v. Centennial Brewing Co. (Mont.), 179 Pac.
296, 297.
Definition and Power to Define. — In the exercise of
the police power the legislature may conclusively define a
beverage as intoxicating liquor whenever that course has
any reasonable relation to the accomplishment of the domi-
nating purpose of the act.
State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A.
191 7B, 962n.
Schmitt v. Cook Brewing Co. (Ind.), 120 N. E. 19.
And so the statute may define what are prohibited, and
what are not, and designate them by general or special
terms.
Marks v. State, 159 Ala. 71, 48 So. 864.
Innocuous Beverages. — If necessary to avoid subter-
fuge and fraud, beverages which are in themselves innocu-
ous may be included.
State v. Centennial Brewing Co. (Mont.), 179 Pac. 296.
Nor does a provision that "all malt or brewed drinks,
whether intoxicating or not, shall be deemed malt liquors
within the meaning of this act," contravene either state or
federal Constitution.
Thatcher v. Reno Brewing Co. (Nev.), 178 Pac. 902.
TITLE II— SEC. 1 OF ACT 81
See also ante, "Constitutionality and Preliminary Con-
siderations."
Properties Immaterial. — If it clearly appears that a
given article is within the scope of the forbidden enumera-
tion, and is intoxicating, its properties become immaterial.
Marks v. State, 159 Ala. 71, 48 So. 864.
Percentage of Alcohol. — A statute prohibiting all dis-
tilled liquors, rectified spirits, vinous, fermented, brewed,
and malt liquors and wines, and any beverage, by whatever
name called, containing more than 1 per cent of alcohol by
volume at 60 degrees Fahrenheit, includes any fermented
liquor, regardless of whether such beverage is in fact in-
toxicating.
State v. Labrecque, 78 N. H. 182, 97 Atl. 747.
Conclusive Presumption. — All liquors, specifically men-
tioned in a statute defining intoxicating liquors are conclu-
sively presumed to be intoxicating liquors, without regard
to their actual intoxicating properties.
State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A.
1917B, 962n.
Ejusdem Generis Rule. — The rule of ejusdem generis
has no application to the statutory definition of intoxicat-
ing liquors.
State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A.
1917B, 962n.
Alcoholic Percentage — Construction. — The phrase,
"any other intoxicating drink, mixture or preparation of like
nature," which follows the specific enumeration of certain
named liquors, is not controlled or qualified by the last
clause of said section with reference to beverages contain-
ing one-half per cent alcohol being spirituous liquors.
Thatcher v. Reno Brewing Co. (Nev.), 178 Pac. 902.
Enumerated Liquors Not Limited. — The clause, "ev-
—6
82 TITLE II — SEC. 1 OF ACT
ery other liquor," after specified liquors was not intended to
limit or qualify the enumerated liquors.
State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A.
1917B, 962n.
The prohibition of ardent spirits, ale, beer, wine or in-
toxicating liquor or liquors of whatever kind includes all
forms of beer, whether intoxicating or not, since the words
"intoxicating liquor or liquors of whatever kind" do not
limit the specifically prohibited liquors to intoxicating
forms, but those enumerated are absolutely prohibited in
any form, and the limitation applies only to liquors not
enumerated.
Brown v. State, 17 Ariz. 314, 152 Pac. 578.
The phrase, "any other intoxicating drink, mixture or
preparation of like nature," which follows the specific
enumeration of certain named liquors instead of limiting the
class of liquor enumerated, described another merely by their
intoxicating quality.
Thatcher v. Reno Brewing Co. (Nev.), 178 Pac. 902.
See also, United States v. Schmauder (D. C.), 258
Fed. 251.
"In People v. Strickler, 25 Cal. App. 60, 142 Pac. 1121,
the court was called upon to construe a section of the local
option law which reads as follows: 'The term "alcoholic
liquors" as used in this act shall include spirituous, vinous
and malt liquors, and any other liquor or mixture of liq-
uors which contain one per cent by volume, or more, of
alcohol, and which is not so mixed with other drugs as to
prevent its use as a beverage.' The rule of the last ante-
cedent was disregarded, and it was held that the clause,
'which contain one per cent by volume, or more, of alcohol,'
modifies the term 'spirituous, vinous and malt liquors,' as
well as the terms 'liquor' or 'mixture of liquors.' In State
v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A. 1917B,
962n, the Washington Supreme Court construed a section
of the prohibition law which provides : 'The phrase "in-
toxicating liquor," wherever used in this Act, shall be held
and construed to include whisky, brandy, gin, rum, wine,
ale, beer and any spirituous, vinous, fermented or malt liq-
II— SEC. 1 OF ACT 83
uor, and every other liquor or liquid containing intoxicat-
ing properties.' The doctrine of the last antecedent was
applied, and it was held that the phrase 'containing intoxi-
cating properties' modifies the terms 'other liquor or liquid,'
and does not modify any of the other preceding terms. The
strained construction given to the statute considered in Ex
parte Hunnicutt, 7 Okl. Cr. 213, 123 Pac. 179, may have
been justified under the circumstances, but the reasoning by
which the conclusion was reached does not commend it to
our judgment. None of the decisions is particularly per-
suasive here."
State v. Centennial Brewing Co. (Mont.), 179 Pac. 296,
299.
Liquor Synonymous with Liquid. — The meaning of
the word "liquor" is not restricted to alcoholic or intoxi-
cating liquids, but the word is to be given its original mean-
ing as synonymous or inclusive of the word "liquid."
State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A.
1917B, 962n.
Unspecified Liquor or Liquors — Test of Unspecified
Liquors. — The test to be applied in determining whether or
not the sale and keeping for sale of liquors other than those
specifically mentioned in the statute is prohibited is this: If
the liquor in question be of such a kind that the distinctive
character and effect of intoxicating liquor be absent, it is
outside the statute; if the distinctive character and effect
of intoxicating liquor be present, it ;s Avithin the statute.
State .v. Miller, 92 Kan. 994, 142 Pac. 979, L. R. A.
1917F, 238, Ann. Cas. 1916B, 365.
"Liquor"— "Spirituous Fluid"— "Intoxicating." —
The term "liquor," in its limited sense and in its more com-
mon application implies spirituous fluids, whether fer-
mented or distilled, such as brandy, whisky, gin, beer, and
wine.
Mullins v. Commonwealth, 115 Va. 945, 79 S. E. 324.
" 'Generally the word "liquor"' implies intoxicating liq-
uor, and therefore proof that a defendant sold "liquor" is
84 TITLE II— SEC. 1 OF ACT
sufficient to show, in the absence of adverse testimony, that
he sold intoxicating liquor.' Carswell v. State, 7 Ga. App.
198, 66 S. E. 488; Howard v. State, 7 Ga. App. 61, 65 S. E.
1076; Lewis v. State, 6 Ga. App. 779, 65 S. E. 842; Tomp-
kins i). State, 2 Ga. App. 639, 58 S. E. 1111; Wilburn v.
State, 8 Ga. App. 28, 68 S. E. 460."
Smith v. State, 17 Ga. App. 118, 86 S. E. 283.
Intoxicating Decoctions. — The term liquor or liquors
includes all kinds of intoxicating decoctions, whether spirit-
ous, vinous, malt, or alcoholic.
Marks w. State, 159 Ala. 71, 48 So. 864.
"Intoxicating Liquor" — What Is and What Is Not
— Statutory Signification. — The words "intoxicating liq-
uors," wherever used in the intoxicating liquor laws, be-
came impressed with the signification given them by that
statute.
State v. Miller, 92 Kari. 994, 142 Pac. 979, L. R. A.
1917F, 238, Ann. Cas. 1916B, 365.
"Intoxicant" Defined. — "Any liquor intended for use
as a beverage, or capable of being used, which contains al-
cohol, either obtained by fermentation or by the additional
process of distillation, in such proportion as it will produce
intoxication when taken in such quantities as may practi-
cally be drunk, is an intoxicant. This has been recognized
by the authorities and elementary writers as a proper defi-
nition of what is an intoxicant."
Weinberg v. State, 81 Tex. Cr. App. 306, 194 S. W.
1116.
Under the law of some states the test is whether the liq-
uor, when taken in reasonable quantities, will intoxicate.
Salvador v. State, 79 Tex. Cr. App. 343, 185 S. W. 12.
In order to come under the ban of some state laws, liq-
uor must either contain more than one half of 1 per cent of
alcohol, or a sufficient quantity of it in a liquor or com-
pound, capable of being used as a beverage to intoxicate a
human being.
Estes v. State (Okla. Cr. App.), 166 Pac. 77.
TITLE II— SEC. 1 OF ACT 85
The term "intoxicating liquor," as used in War-Time Pro-
hibition Act Nov. 21, 1918, means any liquor, intended or
capable of being used as a beverage, containing a proportioo
of alcohol which will produce intoxication when the bever-
age is taken in such quantities as it is practically possible
for a man to drink.
United States v. Baumgartner (D. C), 259 Fed. 722.
A law prohibiting the sale of, or keeping for sale, intox-
icating liquors, includes intoxicating liquors of every kind
and character which are now in use, or which in the future
may come into use as a beverage, no matter by what name
they may be named or called, and no matter how small a
percentage of alcohol they may contain, and no matter what
other ingredients may be in them.
McLean v. People, — Ala. — , 180 P. 676.
"Intoxicating Bitters." — Intoxicating bitters includes
those bitters, beverages, or decoctions in which the distinc-
tive character and effect of intoxicating liquors are present,
so that it may be used as a beverage notwithstanding the
other ingredients it may contain ; and if it can be used as a
beverage, though the other ingredients are medicinal and
predominate, and alcohol is used to preserve these medicinal
ingredients and serve as a vehicle therefor, then it may or
may not be included, depending on the evidence in each
particular case, it being without the province of any court
to declare as a matter of law that a particular bitters or bev-
erage is or is not intoxicating, unless the statute or law so
declares, or it be one the effect of which every one is pre-
sumed to know.
Marks v. State, 159 Ala. 71, 48 So. 864.
Whisky, Porter and Ale. — \Yhisky, porter, and ale are
taken to be intoxicating liquors.
State v. Barr (Vt.). 77 All. 914.
State v. Killeen (N. H.), 107 Atl. 601.
Coats v. State (Tex. Cr. App.), 215 S. W. 856.
Landers v. State (Tex. Cr. App.), 210 S. W. 694.
Jamaica Ginger. — Jamaica ginger, containing more than
1 per cent of alcohol, is intoxicating liquor.
State v. Intoxicating Liquors and Vessels (Me.), 106
Atl. 711.
86 TITLE II— SEC. 1 OF ACT
It is a matter of common knowledge that for years Ja-
maica ginger, whatever its merits may be, has been used as a
substitute for other intoxicants.
State v. Intoxicating Liquors and Vessels (Me.), 106
Atl. 711.
Jamaica ginger containing 92 per cent alcohol and kept
for sale as a beverage was "intoxicating liquor" within the
meaning of Laws 1917, c. 147, § 19, and a prosecution could
be had under such section, notwithstanding section 21, re-
lating to Jamaica ginger.
State v. Agalos (N. H.), 107 Atl. 314.
Peach Brandy. — It may be inferred that a liquor denom-
inated by the seller as peach brandy, and for which payment
is received as such, is brandy, and therefore an intoxicating
liquor.
Howard v. State, 7 Ga. App. 61, 65 S. E. 1076.
Alcohol. — It is a matter of common knowledge that al-
cohol is an intoxicant and an intoxicating liquor.
State v. Klein (la.), 174 N. \V. 481.
McLean v. People (Colo.), 180 Pac. 676.
State v. Nicolay (Mo. App.), 184 S. W. 1183.
Pure alcohol is without the term "spirituous and intoxi-
cating" liquors.
Marks v. State, 159 Ala. 71, 48 So. 864.
And a sale of alcohol as a beverage, however, diluted or
disguised, violates a law specifically prohibiting the sale of
alcohol.
Feagin v. Andalousia, 12 Ala. App. 611, 67 So. 630.
"Alcoholic or Spirituous." — "Alcoholic means contain-
ing or pertaining to alcohol, which is a volatile organic
body, a limpid colorless liquid, hot and pungent to the taste,
having a slight, but not offensive, scent. It has but one
source, namely, fermentation, and is extracted from its by-
products by distillation ; its purity and strength depending on
the degree of perfection or completeness of distillation.
While it is the intoxicating principle of all intoxicating
TITLE II— SEC. 1 OF ACT 87
drinks, within the meaning of ordinary prohibition stat-
utes, it is rarely in its pure state used as a beverage."
Marks v. State, 159 Ala. 71, 48 So. 864.
The phrase, "alcoholic or spirituous liquors," necessarily
means intoxicating liquors.
Marks v. State, 159 Ala. 71, 48 So. 864.
Near Beer. — But the expression, "near beer," does not
import an intoxicating liquor.
Stoner v. State, 5 Ga. App. 716, 63 S. E. 602.
Campbell v. Thomasville, 6 Ga. App. 212, 64 S. E. 815.
Abbott v. State, 11 Ga. App. 43, 74 S. E. 621.
"Potability" or Beverage Character. — "The sale of
spirituous, vinous, fermented, or malt liquor, not capable of
being used as a beverage, is not prohibited. The word
'beverage' means a drink or liquor for drinking. Century
Dictionary. Every one of the terms — 'spirituous liquor,'
'vinous liquor,' 'fermented or malt liquor' — has a well-un-
derstood meaning. Every one of those liquors is not merely
capable of being used as a beverage, but it is in fact a bev-
erage, and it is a contradiction of terms to speak of spirit-
uous, vinous, fermented, or malt liquor, not capable of be-
ing used as a beverage."
State v. Centennial Brewing Co. (Mont.), 179 Pac. 296,
297.
Nonpotable Intoxicant. — Liquor which will not intoxi-
cate by immoderate use because one using it "would become
sick long before he becomes intoxicated" is not "intoxicat-
ing liquor."
Geer Drug Co. v. Atlantic Coast Line R. Co., 104 S.
C. 207, 88 S. E. 448, Ann. Cas. 191 7C, 908.
"Still Beer." — A substance made of corn meal and mo-
lasses, designed to be used for distilling whisky, and com-
monly called "still beer," or "beer," which is alcoholic, and
intoxicating when drunk to excess, and in such a physical
state that it can be and actually is drunk as a beverage, is a
"beverage," as used in a statute making it an offense to dis-
88 TITLK II— SEC. 1 OF ACT
till or manufacture any alcoholic liquor or beverage, any part
of which is alcoholic.
Patterson v. State (Ga. App.), 100 S. E. 641.
Beer, and Its Varieties. — Judicial notice will be taken
that "beer" without any qualifying term is a malt liquor
containing sufficient alcohol to produce intoxication.
Lyon v. City Club, 83 S. C. 509, 65 S. E. 730.
Mild Beer. — Though not containing sufficient alcohol to
require an internal revenue license for its sale, beer may be
intoxicating within the prohibition amendment.
Hall v. State, 19 Ariz. 12, 165 Pac. 300.
Under the internal revenue laws and all standards by
which Congress could have viewed the matter, beer described
in an information as a malt product, commonly known as
lager beer, and containing as much as one-half of one per
cent of alcohol, is of the class known as intoxicating liquor,
and as such its sale is prohibited.
United States v. Schmauder (D. C.), 258 Fed. 251.
"Not every liquid called beer is judicially known to be
intoxicating. Gripe v. State, 4 Ga. App. 832, 62 S. E. 567;
Snider v. State, 81 Ga. 753, 7 S. E. 613, 12 Am. St. Rep.
350. Some beers are known to be nonintoxicating. In or-
der to show that the sale of a liquid denominated as beer is
unlawful and consequently that the keeping of the liquid for
sale is likewise unlawful it must be shown that the beer in
question comes within one of those classes whose sale is
regulated by law. Persimmon, locust, corn, and other
brewed liquor may be called by the most innocent name and
yet the proof may show that the name is but a disguise, and
that the sale of the fluid in question is prohibited by law."
Lumpkin v. Atlanta, 9 Ga. App. 470, 71 S. E. 755.
Under War Prohibition Act.— Congress extended at the
time of passing this law to prohibit lager beer with an
amount of alcoholic content sufficient to make it taxable by
the revenue department, sufficient to bring it within the gen-
eral definition of lager beer, as known from past experience,
and sufficient to bring the act within the prohibition of the
TITLE II— SEC. 1 OF ACT 89
Selective Service Law, which prohibited the sale of- "any in-
toxicating liquors including wine and beer."
United States v. Schmauder (D. C.), 258 Fed. 251.
Act Nov. 21, 1918, providing that no beer, wine, or other
intoxicating liquors shall be manufactured or sold during
continuance of the war, etc., refers only to intoxicating beer
and wine.
United States v. Baumgartner (D. C.), 259 Fed. 722.
The War-Time Prohibition Act of November 21, 1918,
prevents only the manufacture and sale of beer, wine, etc.,
which is in fact intoxicating.
Hoffman Brewing Co. v. McElligott (C. C. A.), 259
Fed. 525.
The War-Time Prohibition Act of November 21, 1918,
preventing the sale of beer, wine, and other intoxicating
liquors, etc., refers only to beer and wine which is in fact
intoxicating.
United States v. Ranier Brewing Co. (D. C.), 259 Fed.
350.
In the provision of Act Nov. 21, 1918, § 1, that "no grains,
cereals, fruit or other food product shall be used in the
manufacture or production of beer, wine or other intoxi-
cating malt or vinous liquors for beverage purposes," the
words "beer" and "wine" are qualified by "intoxicating," and
the act does not prohibit the manufacture of beer which is
not in fact intoxicating.
Hoffmann Brewing Co. v. McElligott (D. C.), 259 Fed.
321.
Act Nov. 21, 1918. — "Congress had it in mind to say
'beer or any other product of malt of an intoxicating na-
ture.' The thought was that expressed in the Selective Serv-
ice Law (Act May 18, 1917, c. 15, 40 Stat. 76 [Comp. St.
1918, § 2019a]), which says: 'Any intoxicating liquor, in-
cluding beer, ale or wine.' But either statement would sug-
gest that Congress classified, and intended to classify, beer
as intoxicating, and merely made sure that it was covered
by the law in case dispute arose. The law included beer, and
snowed that Congress understood it to be intoxicating."
United States r. Schmauder (D. C.), 258 Fed. 251.
90 TITLE II— SEC. 1 OF ACT
Beer. — It is apparent that the intent of the Congress was
to prohibit the sale of those malt products which were com-
monly known as beer, which were also commonly supposed
to be intoxicating, which had always been classified as in-
toxicating liquor, and which because of their alcoholic con-
tent had some effect upon the production and man power of
the nation, while at the same time using in their manufac-
ture some of the food products of the nation, which were
needed for the purposes of the war and for the purposes of
restoring conditions at the termination of hostilities, so far
as Congress had power to regulate conditions after the war
as a part of its military operation and conduct.
United States v. Schmauder (D. C.), 258 Fed. 251.
That the Treasury Department should have interpreted
the act as only applying to what it considers intoxicating
beer is persuasive and entitled to great weight.
United States v. Cerecedo Hermanos Y. Compania, 209
U. S. 337, 339, 28 Sup. Ct. 532, 52 L. Ed. 821.
Komada & Co. v. United States, 215 U. S. 392, 396, 30
Sup. Ct. 136, 54 L. Ed. 249.
Adams Exp. Co. v. New York, 232 U. S. 14, 30, 34 Sup.
Ct. 203, 58 L. Ed. 483.
Hoffmann Brewing Co. v. McElligott (D. C.), 259 Fed.
321.
Mixtures. — Mixtures of intoxicating liquors retaining
their alcoholic qualities, which will intoxicate and may be
used as a beverage and become a substitute for the ordinary
intoxicating drinks are intoxicating liquors.
Roberts v. State (Ga. App.), 60 S. E. 1082.
"The fact that ardent spirits are mixed with other in-
gredients, and, as thus compounded, labeled Jamaica ginger
and sometimes used for medicinal purposes, does not
change the situation, for as we said in Brown v. State, 17
Ariz. 314, 152 Pac. 578: 'Of course, the name by which it
was called cannot affect its kind or quality. It is the stuff
of which it is made, and not its name, that gives it place
among the prohibited liquors named in the Constitution.' "
Cooper v. State, 19 Ariz. 486, 172 Pac. 276.
TITLE II— SEC. 1 OF ACT 91
Substitutes. — A beverage containing an enzyme, which
is an unorganized ferment, and containing either maltose or
glucose or a substitute therefor, is prohibited as a device
or substitute.
State v. Mattox Cigar, etc., Co. (Ala.), 77 So. 755.
Beer Substitutes. — It is the process and material, and
not the name which classifies the product; and so a liquor
made by the usual process of making beer, is beer, regard-
less of its name, although fermentation is arrested to re-
duce the percentage of alcohol and it is nonintoxicating.
Brown v. State, 17 Ariz. 314, 152 Pac. 578.
Beer Characteristics. — A liquor that foams like beer,
smells, looks, and tastes like it, and is put up in bottles like
it and has a name suggesting it, is a "substitute or device"
under a statute prohibiting any device or substitute for any
intoxicating liquor.
Dees v. State (Ala. App.), 75 So. 645.
Near Beer. — "Near Beer" is a beverage intended as a
substitute for beer, and is a malt liquor.
Howard v. Acme Brewing Co., 143 Ga. 1, 83 S. E. 1096,
L. R. A. 1917A, 91.
Whisky Defined. — Whisky is alcohol, diluted with wa-
ter and mixed with other elements or ingredients.
Marks v. State, 159 Ala. 71, 48 So. 864.
"Cider" Defined.— The word "cider" includes the
pressed juice of apples whether fermented or unfermented.
The terms "sweet cider" and "hard cider" are in popular
use to distinguish between the juice of the apple before and
after fermentation. "Hard cider" is fermented cider.
People v. Emmons, 178 Mich. 126, 144 N. W. 479, Ann.
Cas. 1915D, 425.
"Vinous Liquor" Defined. — Vinous liquor means liq-
uor made from the juice of grapes, and it may also include
92 TITLE II— SEC. 1 OF ACT
wines made from fruits or berries by process of fermenta-
tion, by addition of sugar and alcohol.
Marks v. State, 159 Ala. 71, 48 So. 864.
State v. Coverdale, 1 Boyce's (24 Del.) 555, 77 Atl.
754.
Judicial Notice of Percentage of Alcohol. — In a pros-
ecution for the sale of wine under a statute which defines
alcoholic liquors as including vinous liquors which contain
more than 1 per cent of alcohol, and which are not so mixed
with other products as to prevent their use as a beverage,
the court will take judicial notice that wine is a drinkable
vinous liquor containing more than 1 per cent of alcohol.
People v. Mueller, 168 Cal. 526, 143 Pac. 750.
Spirituous Liquor. — Spirituous liquor is that which is
in whole or in part composed of alcohol, extracted by dis-
tillation, such as whisky, brandy, or rum.
Marks v. State, 159 Ala. 71, 48 So. 864.
Intoxicating Distinguished from Spirituous Liquor.
— Intoxicating liquors are any liquors intended for use as
a beverage, or capable of being so used, which contain al-
cohol, regardless of how obtained, in such per cent that
they will produce intoxication when imbibed in such quan-
tities as may practically be drunk; but the term, however,
is not synonymous with spirituous liquors, since, while all
spirituous liquors are intoxicating, all intoxicating liquors
are not spirituous.
Marks v. State, 159 Ala. 71, 48 So. 864.
Whisky. — Any and all kinds of whisky are included in
the terms spirituous and intoxicating liquors.
Donaldson v. State, 3 Ga. App. 451, 60 S. E. 115.
Shaneyfelt v. State, 8 Ala. App. 370, 62 So. 331.
Malt Liquor Defined. — "Malt liquor, or beer, as is com-
monly known, is a brewed liquor made of grain, especially
barley, flavored with hops, and is a liquor which has under-
gone fermentation, and contains alcohol. 5 Cyc. 678."
State v. Lynch, 5 Boyce's (28 Del.) 569, 96 Atl. 32.
TITLE II— SEC. 1 OF ACT 93
The words "malt liquor," in the law are construed to
mean a fermented or alcoholic liquor and not to include a
liquor containing malt, but neither fermented nor contain-
ing alcohol.
State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A.
1917B, 962n.
Malt liquors include nonintoxicating, as well as intoxi-
cating liquors.
Commonwealth v. Goodwin, 109 Va. 828, 64 S. E. 54.
Bradley v. State, 3 Ala. App. 212, 58 So. 95.
State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A.
1917B, 962n.
A beverage containing 5.73 per cent malt is a malt liquor
though it contains no alcohol, preservatives, or saccharine,
and was nonintoxicating.
Purity Extract, etc., Co. v. Lynch, 100 Miss. 650, 56
So. 316.
The phrase "malt liquors and liquor or liquid * * * which
contains as much as two per centum alcohol," includes malt
liquor containing less than two per centum of alcohol, the
words "malt liquor" meaning any malt beverage, the per-
centage of alcohol being immaterial.
State v. Centennial Brewing Co. (Mont.), 179 Pac. 296.
But under a statute providing that the term alcoholic liq-
uors shall include spirituous, vinous, and malt liquors and
any other liquor which shall contain 1 per cent or more of
alcohol, the sale of malt beverages which do not contain 1
per cent of alcohol is not prohibited.
People v. Strickler, 25 Cal. App. 60, 142 Pac. 1121.
Nonintoxicating malt liquor is a fermented malt liquor
containing alcohol in quantities insufficient to produce in-
toxication when used as a beverage.
Claunch v. State (Tex. Cr. App.), 203 S. W. 891.
Process. — Malt liquors are the product of a process by
which grain is steeped in water to the point of germination,
the starch being thus converted into saccharine matter,
which is kilm dried then mixed with hops, and by a fur-
94 TITLE II— SEC. 1 OF ACT
ther process of brewing made into a beverage; porter, ale,
beer, etc., being embraced within the expression.
Marks v. State, 159 Ala. 71, 48 So. 864.
Potentially Alcoholic. — A malt beverage of such com-
position that it will generate alcohol of itself, under certain
conditions, is potentially a malt liquor.
State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A.
1917B, 962n.
TITLE II— SEC. 3
Acts Prohibited.
"Manufacture" — "Sell" — "Barter" — "Transport" —
"Import" - "Export" - "Deliver" - - "Furnish" -
"Possess" - Liberal Construction — General Excep-
tions— Liquor for Nonbeverage Purposes and Wine
for Sacramental Purposes— Permits— Spirits in Bond
—Warehouse Receipts — Tax Liability.
SEC. 3. No person shall on or after the date when the
eighteenth amendment to the Constitution of the United
States goes into effect, manufacture, sell, barter, trans-
port, import, export, deliver, furnish, or possess any in-
toxicating liquor except as authorized in this Act, and
all the provisions of this Act shall be liberally con-
strued to the end that the use of intoxicating liquor as
a beverage may be prevented.
Liquor for nonbeverage purposes and wine for sacra-
mental purposes may be manufactured, purchased, sold,
bartered, transported, imported, exported, delivered, fur-
nished, and possessed, but only as herein provided, and
the commissioner may, upon application, issue permits
therefor: Provided, That nothing in this Act shall pro-
hibit the purchase and sale of warehouse receipts cov-
ering distilled spirits on deposit in Government bonded
warehouses, and no special tax liability shall attach to
the business of purchasing and selling such warehouse
receipts.
Liberal Construction, Reason and Spirit.
The prohibition laws must be liberally construed to ac-
complish the purposes of their enactment, which is to sup-
press the evils of intemperance and secure obedience to, and
the enforcement of, the laws of the state for the suppres-
96 TITLE II— SEC. 3 OF ACT
sion of illegal manufacture of and traffic in prohibited liq-
uors, and to prevent evasions and subterfuges by which the
law may be violated.
Carson v. State, 3 Ala. App. 206, 58 So. 88.
State v. Philips, 109 Miss. 22, 67 So. 651.
The end sought for is the prevention or at least the dimi-
nution of the drinking of intoxicating liquors by the peo-
ple of the state. The legislation upon the subject, including
the statute in question, should be construed to further that
end, so far as the language, without bending either way,
fairly allows.
State v. Bass Pub. Co., 104 Me. 288, 71 Atl. 894, 20
L. R. A., N. S., 495.
State v. Jones-Hansen-Cadillac Co. (Neb.), 172 N.
W. 36.
As said in one case : "But, as we have attempted to show
in this opinion, we are perfectly clear that the Legislature
in enacting the prohibition statute was aiming to prevent
the evil of intemperance caused by the use of intoxicating
liquors as a beverage. To accomplish this beneficent pur-
pose, the law should receive a reasonable construction,
equally removed on the one hand from a harsh literal in-
terpretation which would render it unpopular and difficult
of enforcement, and, on the other hand, from a latitude that
would tend to fritter away its beneficial purpose and cause
it to become a mere bmtum fulmen."
Roberts v. State, 4 Ga. App. 207, 60 S. E. 1082.
And in another: "Incidentally it may be said in this
connection, that while the statute, of which this section is
a part, prescribes a penalty for its violation, and that penal
statutes are, as a general rule, strictly construed, it has been
held here and elsewhere that laws in regard to the sale of
intoxicating liquors ought to be so construed as to carry
out the true purpose of their enactment. State v. Walker,
221 Mo. 511, 120 S. W. 1198, affirming 129 Mo. App. 371,
108 S. E. 615. And in accomplishing this purpose they
should be liberally construed. Seattle v. Foster, 47 Wash.
172, 91 Pac. 642; Cox v. Burnham, 120 la. 43, 94 N. W.
265; People v. Craig. 128 App. Div. 908, 112 N. Y. Supp.
1142. Probably the rule in regard to the construction of
TITLE II— SEC. 3 OF ACT 97
this case of statute is best stated in a New York case
plead v. Stratton, 87 N. Y. 493, 41 Am. Rep. 386) in which
it is said: "While a statute of this character should not be
enlarged, it should be interpreted, where the language is
clear and explicit, according to its true intent and meaning,
having in view the evil to be remedied and the object to
be attained."
State v. Missouri Athletic Club (Mo.), 170 S. W. 904,
905.
Statutory Signification. — The sentence, "and all malt
or brewed drinks, whether intoxicating or not, shall be
deemed malt liquors within the meaning of this act," can-
not be adjudged out of the act, or restricted or enlarged in
its plain signification, unless, after exhausting every legiti-
mate method of construction, it is found irreconcilable with
the scope and purpose of the act or void for constitutional
reasons.
State v. Reno Brewing Co. (Neb.), 178 Pac. 902.
An act making it unlawful for any railroad to transport
within or import into the state intoxicants, or for any person
to receive the same or to deliver the same, is not indefinitely
framed or of such doubtful construction that it cannot be
understood from the language in which it is expressed.
Gulf. etc.. R. Co. v. State (Tex. Civ. App.), 212 S. W.
845.
Public Policy. — In determining the public policy of a
state with reference to guilt in question of the sale with pur-
chase of intoxicating liquor the court must accept the statute
as fixing the public policy, and have no concern with the
reasons of the lawmakers in failing to condemn the buyer.
Anderson v. Fant (S. C.), 79 S. E. 640, 641.
When Strictly Construed. — But it has been held that
the Reed- Jones Amendment. § 5 (U. S. Comp. St. 1918, §
8739a), declaring that whoever shall cause intoxicants to be
transported in interstate commerce except for certain pur-
poses into any state whose laws prohibit the sale and manu-
facture of such liquors shall be punished, is highly penal in
its nature, therefore to be strictly construed, so that a case
—7
98 TITLE II— SEC. 3 OF ACT
to come within its purview must come both within the spirit
and letter.
Sickel v. Commonwealth (Va.), 99 S. E. 678.
And an act prohibiting the transportation of intoxicating
liquor for another, is a criminal statute, and must be strictly
construed, so that all persons must be excluded from its
operation who are not expressly included within its provi-
sions.
Edwards v. State (Ark.), 213 S. W. 11.
Permit. — In a statute making it unlawful to sell or
permit to be sold without a license certain specified liquors,
the word "permit" must be construed as meaning "assent,"
in view of the strict construction given criminal statutes.
State v. Waxman (N. G. Sup.), 107 Atl. 150.
Prospective Operation of Statute. — In the view of
the North Carolina Revisal, 1905, §§ 2832, 5455, 5456, de-
fendant who sold spirituous liquors in a county December
20, 1918, could be convicted of the offense as a misdemeanor
under the act previous to Public Local Laws 1919, c. 2,
ratified January 23, 1919, making the retailing of spirituous
liquors in the county a felony, made prospective only in its
operation by its provision that it should take effect from its
ratification, more particularly in view of the intention of
the Legislature as shown by the title of the act.
State v. Mull (N. C.), 101 S. E. 89.
Manufacture.
Manufacture "or" Sale — Conjunctive. — "As will be
noted by reference to the Reed Amendment, it is applicable
to any state the laws of which prohibit 'the manufacture
or sale therein of intoxicating liquors for beverage pur-
poses.' Thus it is sufficient if either the manufacture or
the sale is prohibited. Attention is called to a line of deci-
sions in which the disjunctive 'or' is sometimes construed
as 'and,' but such a construction is not applicable in this
case. Congress had the authority to prohibit the shipment
of intoxicating liquors into states which prohibit the manu-
facture of liquors, or which prohibit the sale of liquors,
TITLE II— SEC. 3 OF ACT 99
either one or the other, or both, and there is no good reason
to conclude that Congress did not intend exactly what it
said."
United States v. Collins (D. C.), 254 Fed. Rep. 869,
870.
Manufacture. — "Manufacture," as used in the statute,
means to make, irrespective of quantity produced or use to
which it is to be put.
State v. Marastoni (Ore.), 165 Pac. 1177.
The word "manufacture" means the process of making
by art, or reducing materials into form fit for use, by hand
or machinery.
State v. Raven, 91 S. C. 265, 74 S. E. 500.
One who converts raw material out of which alcoholic
liquors can be made into alcohol is guilty of "manufactur-
ing" alcoholic liquors.
Patterson v. State (Ark.), 215 S. W. 629.
Attempt to Manufacture. — Under the Alabama Prohi-
bition Law of 1915 a mere ineffectual attempt to manufac-
ture whisky was not an offense.
Cochran v. State (Ala. App.), 82 So. 560.
For Personal Use Only. — Under a law providing that
it shall be unlawful for any person to manufacture, sell,
barter, exchange, give away, furnish, or otherwise dispose
of any intoxicating liquors, or to keep any intoxicating liq-
uor, with intent to sell, barter, exchange, give away, etc.,
one who manufactures intoxicating liquor solely for his own
personal use, and without intent to sell, is guilty, since the
words "intent to sell," in the statute refer only to that which
immediately precedes, to wit, "keep any intoxicating liquor."
State v. Fabbri, 98 Wash. 207, 167 Pac. 133.
Distillation. — To run beer or singlings composed of
corn, meal, sugar or molasses, and water through the proc-
ess of distillation once is a violation of the manufacturing
provision of the statute.
Lowery v. State, 135 Ark. 159, 203 S. W. 838.
100 TITLE II— SEC. 3 OF ACT
Aiding and Abetting Manufacture. — Under North
Carolina Revisal 1905, § 3269, providing that on trial of any
indictment the prisoner may be convicted of the crime
charged or of a less degree of the same crime, defendant
could be convicted of a violation of Pub. Laws 1917, c. 157,
prohibiting the manufacture of liquor, whether he was a
principal in the first degree or in the second degree as an
aider and abetter, the latter being but a lower grade of the
principal offense.
State v. Homer, 174 N. C. 788, 94 S. E. 291.
One who fired a gun in the air when he saw an officer
approaching a blockade distillery to aid and abet the dis-
tillers and to enable them to escape was an accessory to the
distillers and was equally guilty with the principals.
State r. Killian (N. C.), 101 S. E. 109.
Participating in Manufacture. — Where defendant not
only permitted the illegal business of manufacturing liquor
to be done in his house, but furnished the still and the place
for using it, he was a participant in the crime of manufac-
turing liquor.
State v. Jones, 174 N. C. 709, 95 S. E. 576.
One who is present at a distillery when whisky is being
manufactured and personally assists in the manufacture of
the same is guilty of manufacturing whisky, and it is imma-
terial whether or not he owns the distillery, and whether or
not he is hired to work there.
Thomas v. State (Ga. App.), 100 S. E. 760.
But to constitute a violation of the law prohibiting the
manufacture of liquor, it is not necessary that the process
of manufacturing should be complete, and hence a person
letting the water out of a still and scraping the still is en-
gaged in the manufacture of liquor and is guilty of a viola-
tion.
State v. Raven, 91 S. C. 265, 74 S. E. 500.
"In the light of the rule that in misdemeanors all who
aid or abet are principals, one who, at a place where a still
is being unlawfully operated, participates in any act nec-
essary or usual in the manufacture of whisky, such as stir-
II— SEC. 3 OF ACT 101
ring the meal, keeping up the fire, or carrying water to be
used in mixing the meal, is so connected with the manufac-
ture prohibited by law as to authorize his conviction upon
an indictment charging him with manufacturing liquor,
when it appears that any act done by him was necessarily a
contribution to the success of the unlawful undertaking."
White v. State, 18 Ga. App. 214, 89 S. E. 175.
Or participates by such acts as helping barrel the liquor
and leveling the still worm when it is about to get out of
proper adjustment.
Strickland v. State, 9 Ga. App. 201, 70 S. E. 990.
But if defendant went to a still where other persons had
manufactured liquor or had been frustrated in so doing,
merely to haul away the remnants and without intention to
take part in the manufacture of liquor, and hauled away
beer as an act disconnected with the manufacture of liquor,
he did not violate a law prohibiting the manufacture of liq-
uor.
State v. Homer, 174 N. C. 788, 94 S. E. 291.
Wine Making. — Extracting the juice of grapes and al-
lowing it to ferment, and thereby letting it become intoxi-
cating liquor, is "manufacturing" intoxicating liquor.
State v. Fabbri, 98 Wash. 207, 167 Pac. 133.
One who presses juice from grapes, puts it in a vat and
permits it to ferment by natural process, with intent to use
part of it in the state, manufactures wine in violation of
law.
State v. Marastoni (Ore.), 165 Pac. 1177.
See also post, under Sec. 19.
Sale.
What Constitutes. — "Where one person delivers to an-
other certain intoxicating liquors in exchange and consid-
eration for a sum of money then and there paid, the trans-
action constitutes a sale of intoxicating liquors, and it is
immaterial whether the purchaser subsequently delivers a
portion of such liquors to other persons who had thereto-
fore contributed to a purse with which such liquors were
102 TITLE II— SEC. 3 OF ACT
purchased, where it appears that the person making such a
sale was ignorant of the fact that such liquors were to be
subsequently delivered to parties other than the one pro-
ducing and paying the money."
Darneal v. State (Okla. Cr. App.), 171 Pac. 737.
See Deal v. State, 14 Ga. App. 121, 80 S. E. 537, 541.
A "sale" is a contract for the transfer of property from
one person to another for a valuable consideration, and to
constitute a sale of whisky there must be the assent of two
parties.
Scroggins v. United States (C. C. A.), 255 Fed. 825,
Where a witness went to defendant, and paid cash for a
barrel of wine, which was delivered to the witness' place of
business on the same day, the transaction was a sale, and
not a contract for the sale of the liquor.
D'Amico v. State (Del.), 102 Atl. 78.
"Delivery." — If defendant told the alleged purchaser
where the liquor might be found, and he found it at such a
place and took possession, there was a sufficient delivery to
constitute the transaction a sale.
State v. Sullivan, 97 Wash. 639, 166 Pac. 1123.
Where accused took money from another undertaking to
procure whisky for him, and gave the money to a third per-
son who advised accused he put some whisky under a cer-
tain box, of which accused informed the purchaser, this
constituted a "delivery" of the whisky by accused to the
purchaser; the whisky placed under the box being under
accused's exclusive control until surrendered to the pur-
chaser.
State v. Elmore (Mo. App.), 189 S. W. 612.
Place of Delivery. — A sale of intoxicating liquor oc-
curs at the place of delivery, where the seller actually parts
with the property.
Blackburn v. State, 79 Tex. Cr. App. 446, 185 S. W.
581.
Where the seller of intoxicating liquors delivers them in
person or by his agent to the purchaser, without the inter-
TITLE II— SEC. 3 OF ACT 103
vention of a common carrier, the place of delivery is the
place of sale.
Lochinar v. State, 111 Md. 660, 76 Atl. 586, 19 Ann.
Cas. 579.
Ownership of Liquor Sold Immaterial. — "The state's
witness approached the defendant and told him that he
wanted a quart of liquor. The defendant replied that he
had none for sale, but that a third person had left a quart
in his (defendant's) house for which he (the third person)
desired a named amount of money. The witness paid the
money to the defendant, and went and got the liquor from
the place designated. Held: (1) The case does not rest
on circumstantial evidence alone. (2) Under the doctrine
that, in misdemeanors, all who participate are principals, it
is immaterial whether the liquor belonged to the defendant
or not."
Loeb v. State, 6 Ga. App. 23, 64 S. E. 338.
Roberts v. State, 8 Ga. App. 476, 69 S. E. 585.
Scott v. State, 3 Ala. App. 142, 57 So. 413.
Under a statute prohibiting any person from selling spir-
itous liquor in any quantity, a servant or agent may be
guilty of unlawfully selling liquor, the property of his prin-
cipal, though the agent have no property in the liquor so
sold.
State v. Gross, 76 N. H. 304, 82 Atl. 533.
Lochinar v. State, 111 Md. 660, 76 Atl. 586, 19 Ann.
Cas. 579.
Defendant who at the request of one who had ordered
whisky made affidavit that it was his and was not intended
for any illegal purpose, paying the notary with money fur-
nished by the party ordering the whisky, took the affidavit
to the express office, signed for and received the liquor and
delivered it to the party who had ordered it, was guilty of
a sale.
Coleman v. State, 74 Tex. Cr. App. 36, 166 S. W. 164.
Where beer is illegally sold, it is immaterial as to who is
the proprietor of place of sale, or that the person making
sale is not interested therein.
Files v. State (Okla. Cr. App.), 182 Pac. 911.
104 TITLE II— SEC. 3 OF ACT
Place of Sale. — The sale of liquor is made at the place
where the minds of the parties meet and where the purposes
of each party become understood.
Huddleston v. Commonwealth, 171 Ky. 310, 188 S. W.
398.
Where accused, owning whisky which was either in the
state or in a sister state, made a contract of sale, received
the price, and through an express company delivered the
whisky in the state, there was an illegal sale in the state.
State v. Cardwell, 166 N. C. 309, 81 S. E. 628.
Where a seller in one state, pursuant to a written order
from a buyer in another shipped the latter two carloads of
beer, the sale took place before arrival of the beer at its
destination and its delivery to buyer.
Monumental Brewing Co. v. Whitlock (S. C.), 97 S.
E. 56.
Where a brewing company located in Illinois gave to the
bankrupt the exclusive right to sell its beer at wholesale, the
same to be delivered f. o. b. at Omaha, Neb., the sales must
be deemed to have occurred in Illinois, where the brewing
company was licensed, so the company was entitled to have
allowed its claim against the bankrupt, based on sales made
under the contract, though it was not licensed in Nebraska
to sell intoxicating liquors.
Belden & Co. v. Leisy Brewing Co., 161 C. C. A. 420,
249 Fed. 462.
One who ordered whisky from a liquor house in a sister
state at the request of a third person and solely for his ac-
commodation was not guilty of illegally selling liquor in the
county of delivery.
State v. Cardwell, 166 N. C. 309, 81 S. E. 628.
Shams to Evade Law. — Where the ordering of the liq-
uor by defendant from a firm outside of the state, and a
shipment by it to the purchasers in local option territory
were shams, defendant was guilty of selling.
State v. Jamison (Mo. App.), 199 S. W. 713.
TITLE II— SEC. 3 OF ACT 105
Contributors to Pool.— Where accused and a third per-
son contributed to a pool to buy whisky, and accused took
the money and brought a bottle of whisky, which he and
the third person consumed, he was guilty of selling liquor.
Horton v. State, 105 Miss. 333, 62 So. 360.
But an accused who ordered a keg of beer, to be drunk
by a number of persons, including himself, the expense be-
ing prorated between them, was not guilty of an unlawful
sale of intoxicants ; it appearing all the money collected was
expended in the purchase of the beer and payment for icing
and transportation.
Dantzler v. State, KM Miss. 233, 61 So. 305.
Sales with Meals. — A boarding house keeper, who as
a part of the dinner, serves beer or wine to his boarders
who pay a specified sum per day for board, is guilty of sell-
ing liquor.
Skermetta v. State, 107 Miss. 429, 65 So. 502, 52 L. R.
A., N. S., 722n.
Purchaser Helping Himself. — Where an accused told
a person desiring whisky that he had some in his trunk and
the purchaser paid him money and went to accused's home,
where another member of accused's family showed him the
trunk containing the whisky from which he took it, the ac-
cused is guilty of a sale.
Whitten v. State, 75 Tex. Cr. App. 225, 170 S. W. 718.
Devices Representing Money. — Where a person pur-
chases from one person ticket or other such device to be
punched or exchanged for intoxicating liquors, and another
person, having charge of such liquors recognizes the pur-
chasing value of such ticket and exchanges liquors therefor
by taking up the ticket or punching it, the transaction is a
sale, and both the person selling the ticket and the person
dispensing the liquors are equally guilty.
State v. Zehnder, 182 Mo. App. 161, 168 S. W. 661.
Sale by Coupons. — W'here a number of persons each
contribute money to an agent, who purchases a stock of
intoxicating liquors and thereafter dispenses, upon the or-
106 TITLE II— SEC. 3 OF ACT
der of one of such persons a quantity of the liquor in ex-
change for a book of coupons which had been purchased,
either by such person or by the person to whom the liquor
was delivered, the transaction is a sale in violation of the
prohibition law, notwithstanding the persons for whose ben-
efit the liquor was purchased composed a bona fide club,
organized for social and intellectual welfare, and the use of
the liquor was only an incident to the main purpose of the
club and although no profit is made on the sale. And this
is true whether the persons have become incorporated as a
social club or whether they constitute a voluntary associa-
tion of persons for mutual pleasure and benefit.
Deal v. State, 14 Ga. App. 121, 80 S. E. 537.
Sale on Credit. — The fact that a sale of liquor was void
because on credit, does not exempt the seller from criminal
liability where sale was illegal.
State v. Yocum (Mo. App.), 205 S. W. 232.
"A sale on credit is a complete sale. Therefore a sale of
whisky, whether cash or on credit or whether subsequently
paid for or not, constitutes a violation of law."
Lupo v. State, 118 Ga. 759, 45 S. E. 602.
Cook v. State, 124 Ga. 653, 53 S. E. 104.
Finch v. State, 6 Ga. App. 338, 64 S. E. 1007.
Single Sale as "Engaging in Business." — A statute
providing that "retail dealers of * * * intoxicating liq-
uors * * * shall be * * * deemed to include all per-
sons who sell any such liquors by the drink or by the bottle,"
and that "each violation * * * shall be construed to con-
stitute a separate and complete offense," was intended to
make a single sale constitute "engaging in business."
State v. Hays, 38 S. D. 546, 162 N. W. 311.
"Bootlegger" Defined. — In prohibition territory a
"bootlegger" means a seller of whisky.
Medlock v. State, 79 Tex. Cr. App. 322, 185 S. W. 566.
"Under section 10144, Complied Laws of 1913 (North
Dakota), which provides that 'the crime of bootlegging
* is committed by any person who sells * *
TITLE II— SEC. 3 OF ACT 107
intoxicating liquors * * in the buildings of any per-
son, * * * without the permission of the owner, or of
the person entitled to the possession of such * * * build-
ings,' no such ownership or right of possession exists in
one who merely has an agreement with a livery stable keeper
that he may keep a horse in a barn which may be rented out,
and, in lieu of charging for the stabling and hay, the liv-
ery stable owner may keep one-half of the proceeds of such
renting, the owner of such horse being held to be a licensee
merely."
State v. Stanley, 38 N. D. 311, 164 N. W. 702.
"Blind Tiger" Construed. — "A blind tiger is a place
where intoxicants are sold on the sly and contrary to the
law." Standard Dictionary Words and Phrases.
Ruston v. Fountain, 118 La. 53, 42 So. 644.
Shreveport v. Maroun, 134 La. 490, 64 So. 388.
"Barroom" Construed. — Under a law forbidding the
sale of intoxicating liquors in less quantities than one-half
pint and the consumption of such liquors on premises where
sold, a barroom is such place, and the operation of barrooms
is prohibited.
Christopher v. Charles Blum Co. (Fla.), 82 So. 765.
Sale to "Intoxicated" Person. — The word "intoxi-
cated" in an indictment charging a violation, a law, provid-
ing that no person shall knowingly sell intoxicating liquor to
any intoxicated person, means a materially changed condi-
tion produced by the immoderate or excessive use of intoxi-
cants, as contrasted with normal condition and conduct
O'Donnell v. Commonwealth, 108 Va. 882, 62 S. E. 373.
Liability for Sale by Agent. — Where intoxicants be-
longing to the master are sold illegally by the servant with
the master's knowledge or consent, the master is liable as
if he made the sale himself.
Rash v. State, 13 Ala. App. 262, 69 So. 239.
Commonwealth r. Stone (Ky.), 176 S. W. 1138.
Clerk. — Where a clerk, acting as agent for accused, sells
spirituous liquor with the authority of or consent or under
108 TITLE II— SEC. 3 OF ACT
the direction of the accused, his act is the act of the accused,
and the accused is as criminally liable as though he himself
made the sale.
State v. Hastings, 2 Boyce (Del.) 482, 81 Atl. 403.
Express or Implied Authority. — The proprietor of a
soft drink place was not liable for the unlawful sale of in-
toxicating liquors by his employee, although committed in
his place of business, unless such unlawful act was directed
or knowingly assented to, acquiesced in, or permitted by the
employer.
Elliott v. State, 19 Ariz. 1, 164 Pac. 1179.
"The fact alone that appellant was engaged in selling beer
at wholesale from the stock there stored is not enough to
support a finding that he had possession of the stock, or
that he had the control, management, or supervision of the
same, or that he was keeping or operating a place where in-
toxicating liquor was being sold, bartered, or given away in
violation of law. [4] It is clear that, unless appellant oc-
cupied the position of owner or manager of the business, or
one having authority to control the doings in and about the
place, he cannot be held amenable for another's acts, al-
though he may have known of the illegal sales."
Boos v. State, 181 Ind. 562, 105 N. E. 117.
Walters v. State, 174 Ind. 545, 92 N. E. 537.
Gable v. State (Ind.), 121 N. E. 113.
To "permit the unlawful use of intoxicating liquor" by
the proprietor of a business implies his knowledge and con-
sent and acquiescence.
Elliott v. State, 19 Ariz. 1, 164 Pac. 1179.
Scope of Authority. — Where the attempt is made to
convict a person and to hold him criminally responsible for
the acts of his employee, it must be clearly shown that such
act was reasonably within the scope of the agent's employ-
ment, or was an act done within the course of the princi-
pal's business. One employed to do the ordinary work in
and around a feed and wagon yard is not ordinarily em-
ployed, nor is it within the scope of the employer's business,
to sell whisky in such yard, and the employer of such per-
TITLE II— SEC. 3 OP ACT 109
son would not be criminally responsible for the acts of such
employee in selling whisky in said yard, unless he was then
engaged in such unlawful business at that place, or had hired
such employee to sell whisky in addition to his general du-
ties as helper in the feed and wagon yard.
Simpson v. State (Okla. Cr. App.), 173 Pac. 529.
Liability for Sale to Agent. — If one desiring intoxicat-
ing liquor gave money to another, who gave it to defendant,
and defendant bought liquor, and gave it to person who
furnished money, it was sale by defendant within contem-
plation of local option law.
Lopez v. State (Tex. Cr. App.), 208 S. W. 167.
Presumption of Agency. — Agency may be presumed
from the conduct of the parties, and may be implied from a
single transaction, and need not be proved as an independ-
ent fact, but may be inferred from a variety of facts.
State v. Legendre, 89 Vt. 526, 96 Atl. 9.
And the authority of an agent may be by parol and col-
lected from the circumstances.
State v. Legendre, 89 Vt. 526, 96 Atl. 9.
Agency a Subterfuge. — Evidence that defendant told a
witness that he had no whisky, but pointed out a negro from
whom he thought it could be obtained, and that witness gave
defendant money to obtain whisky from negro, and defend-
ant returned, told witness that whisky could be found in a
certain place where witness found it, authorized an infer-
ence that defense of agency for purchaser was a subterfuge
and justified conviction of selling intoxicating liquors.
Bragg v. State (Ga. App.), 99 S. E. 310.
Purchase for Resale at Profit, Not as Agent. — Where
accused asked the witness whether he desired whisky, and-
being answered in the affirmative, informed the witness that
he would charge him a quarter a quart more than it cost
in another town, and being given the money shortly returned,
saying that he had procured the whisky from a third per-
son, accused was not the agent of the witness, for, had he
been an agent, he would not have been entitled to make the
110 TITLE II— SEC. 3 OF ACT
profits, and, it appearing that he bought the whisky at one
price and resold it at another, the sale took place in the
county where it was made.
Blackburn v. State, 79 Tex. Cr. App. 466, 185 S. W.
581.
Sale of Homemade Cider by Agent. — Where the law
relating to sales of intoxicating liquors and other liquors,
excepts from its prohibition sales of "cider in any quantity
by the manufacturer from fruits grown on his own land
within the state," and the right of sale by agent or employee
is an incident of ownership, such a manufacturer could sell
through his agent, and neither would be amenable to the
penalty for illegal sale.
State v. Williams, 172 N. C. 973, 90 S. E. 905.
[NOTE. This decision was under an express exception
from the North Carolina prohibition law, common
heretofore in most such laws, but no counterpart to
which is found in the Volstead Act.]
Aiding and Abetting an Unlawful Sale. — Wrhere de-
fendant aided and abetted in an unlawful sale of liquor on
his premises, such offense being made a misdemeanor by
law, defendant was guilty as a principal.
State v. Winner, 153 N. C. 602, 69 S. E. 9.
State v. Denton, 154 N. C. 641, 70 S. E. 839.
Crawley v. State (Ala. App.), 73 So. 222, 223.
Wrongful sale of intoxicating liquor being a misdemeanor,
all who participated therein knowingly, would be separately
liable as principals in the offense.
State v. Gross, 76 N. H. 304, 82 Atl. 533.
"The sale of intoxicating liquor in the state of Georgia is
a misdemeanor. All who procure, counsel, command, aid,
or abet the commission of a misdemeanor are regarded by
the law as principal offenders, and may be indicted as such;
and any one charged in an indictment with the sale of in-
toxicating liquors may be convicted by proof, either that he
directly and personally enacted the criminal transaction, or
that he procured, counseled, commanded, aided, or abetted
the criminal transaction of another, who was the direct and
TITLE II— SEC. 3 OF ACT 111
immediate actor. Loeb v. State, 6 Ga. App. 23, 64 S. E.
338."
Littlefield v. State, 22 Ga. App. 783, 97 S. E. 259.
And where defendant knowingly permitted another to use
his home for the illicit sale of whisky on one occasion, he
was an aider and abettor on that occasion ; that it is as much
a violation of law as if he habitually permitted it.
State v. Denton, 154 N. C. 641, 70 S. E. 839.
And under a statute providing that all persons concerned
in the commission of a crime, whether felony or misde-
meanor, and whether they directly commit the act consti-
tuting the offense, or aid and abet, in its commission are
principals, where restaurant patrons gave a waiter a dollar,
with the request that he secure whisky for them, and the
waiter went to an illegal seller of whisky, who gave him a
pint for the dollar, the waiter returning the bottle to the
restaurant patrons is guilty.
Moyean v. State, 18 Ariz. 491, 62 Pac. 135, L. R. A.
1917D, 1014n.
And a person who acts as go-between in purchasing in-
toxicating liquor at an illegal sale thereof, and who thereby
aids and abets in the consummation of the sale is punishable
under the statute.
Kendrick v. State, 11 Okla. Cr. App. 380, 146 Pac. 727.
See also post, under Sec. 19, Title II.
Advising or Encouraging Sale. — A prosecution for
selling intoxicating liquors brought against the president of
a corporation and its manager, where the president actually
sold the liquor and the manager, although not present at
the sale, prepared the invoice therefor in the usual course
of business on information received from the buyer, and
left the invoice on the desk of the shipping clerk for his at-
tention, such acts did not constitute advising or encourag-
ing the commission of the offense.
Hill v. State, 19 Ariz. 78, 165 Pac. 326.
Participating in Sale. — \Yhere one asked to get liquor
for another takes the other to a house where, on receiving
112 TITLE II— SEC. 3 OF ACT
the other's money, he goes in and returns with a pint of
whisky and gives it to the other without disclosing the name
of the person from whom he procured it, he is guilty of
selling whisky being a necessary factor and active partici-
pant in the sale.
Williams v. State, 129 Ark. 344, 196 S. W. 125.
Where a defendant, to be guilty of aiding a liquor law
violation must contribute to the result, it is sufficient if by
prearrangement with the principal he is present to render
assistance if it should become necessary.
Bridgeforth v. State, 15 Ala. App. 502, 74 So. 402.
See also post, under Sec. 19.
Aiding and Abetting Unlawful Keeping for Sale.—
Under a statute, providing that a clerk who violates or aids
in violating any provision of law relating to intoxicating
liquors is equally guilty with the principal, a clerk who aids
another keeping intoxicating liquors with intent unlawfully
to sell the same is guilty.
State v. Stickney 111 Me. 590, 90 Atl. 705.
Aiding and Abetting Sale for Purpose of Procuring
Evidence to Convict. — "The defendant intended to com-
mit the act which the law prohibits. He knew the law, and
brought the whisky into Thomas county for the express pur-
pose of inducing others to violate the law, for the purpose
of assigning them in the violation of the law. He was en-
meshed in the net spread by himself. The law does not
countenance the commission of a crime, even though the
purpose be the apprehension of others engaged in the same
criminal conduct. There is crime enough already, and it is
no part of the duty of an officer of the law to aid or abet an-
other in the commission of crime. If, to accomplish a great
good, it is ever permissible to do a wrong, certainly the min-
isters of the law are not to be encouraged in their efforts to
induce others to commit crime, even though they must in-
tend the arrest and punishment of their unsuspecting victims.
The sheriff of the county washed his hands of the whole
transaction, and he is to be commended for his act."
Mitchell v. State, 20 Ga. App. 778, 93 S. E. 709, 710.
TITLE II— SEC. 3 OF ACT 113
Acting as Intermediary or Agent in Sale Purchase. —
Where the intermediary between the purchaser and the sell-
er is a necessary factor, without whose assistance the sale
of liquor could not have been consummated, he is interested
in the sale, in the sense of the law, whether he has any
pecuniary interest or not.
Condit v. State, 130 Ark. 341, 197 S. W. 579.
One who acts as intermediary in a sale of liquor for both
the seller and the buyer, and except, for whom the sales would
not have been made, is guilty of an illegal sale; but it is
different where one buys liquor for a third party as a mat-
ter of accommodation and not as a subterfuge and was not
interested in the sale.
Dean v. State, 130 Ark. 322, 197 S. W. 684.
Hamilton v. State, 80 Tex. Cr. App. 516, 191 S. W.
1160.
And if defendant had no interest in and did not reap any
profit from whisky, but procured it as an accommodation,
it would not constitute a "sale." (Per Gaines, special
Judge.)
Alexander v. State (Tex. Cr. App.), 204 S. W. 644,
645.
But one who, to accommodate a friend, purchased whisky
for him, receiving half of the purchase price from his friend,
and paying the other half himself and keeping part of the
whisky, acted as an intermediary for both parties in render-
ing a service which made the sale possible and was there-
fore guilty as a principal of unlawfully selling whisky.
Wilson v. State, 114 Ark. 574, 169 S. W. 795.
See also post, under Sec. 18.
Validity of Provision of Statute.— The prohibition
against any sale of intoxicating liquor applies to a sale which
passes the title, regardless of the seller's ownership; and so
a statute providing that any person who shall act as agent
or assisting friend of the buyer or seller of intoxicating liq-
nor shall be guilty, is valid.
Scott v. State, 3 Ala. App. 142, 57 So. 413.
—8
114 TITLE II— SEC. 3 OF ACT
Purchasing Liquor for Another. — Accused, who, on
request of a third person to obtain for him some whisky, pur-
chased it from one selling in violation of law, cannot escape
liability for acting as the agent of the purchaser by showing
that he had been employed to obtain evidence against those
unlawfully selling intoxicants, and had obtained the assur-
ance of the deputy sheriff before making the purchase that
he would not incur any risk for his offense, was wholly un-
necessary to obtain evidence against the seller, and was en-
tirely distinct from that of unlawful selling.
Brantley v. State, 107 Miss. 466, 65 So. 512.
Under a statute making it an offense to act as agent or as-
sistant to either the seller or purchaser in effecting the sale
of any liquor a sale of which is unlawful under the act, the
defendant's purchase of whisky outside of the state with
money given to him in the state and his act in bringing it back
into the state for delivery, was not unlawful.
Anderson v. State, 109 Miss. 521, 68 So. 770.
Where accused procured the liquor, which he delivered to
a third person, in a town where the sale of liquor was pro-
hibited, he is guilty of the unlawful retailing of intoxicants,
though he purchased the liquor as agent for such third per-
son.
Pope v. State, 108 Miss. 706, 67 So. 177.
Accused, who informed the prosecuting witness, who fur-
nished him with money to buy whisky, that he knew where
it could be purchased, is guilty of an unlawful sale in pro-
curing whisky for the witness.
Woods v. State, 114 Ark. 391, 170 S. W. 79.
Attempt to Procure Liquor for Another. — A person,
who upon the solicitation of another, attempts to procure in-
toxicating liquors for him, but does not himself solicit the
giving of an order therefor, is not guilty of a violation of
the law against soliciting or taking orders.
Bain v. State, 76 Tex. Cr. App. 519, 176 S. W. 563.
Accomplices and Accessories. — A person who know-
ingly takes part in the unlawful sale of spirituous liquor
TITLE II— SEC. 3 OF ACT 115
thereby aids and assists the seller in committing a crime, and
hence is an accomplice.
State v. Ryan, 1 Boyce's (Del.) 23, 75 Atl. 869.
But one who purchased intoxicating liquor is not an ac-
complice with the seller, since to aid or abet requires an ap-
proach to the crime from the same angle as the principal,
whereas a purchaser of liquor approaches from a different
angle than that of the seller.
Baumgartner v. State (Ariz.), 178 Pac. 30.
And one employed to make purchase of intoxicants for
purpose of appearing as witness against defendant was not
an "accomplice," within the law, so that conviction could be
had on his uncorroborated testimony; the crime being the
sale and not the purchase.
State v. Busick, 90 Ore. 466, 177 Pac. 64.
See also, State v. Gosell, 137 Minn. 41, 162 N. W. 683.
Landlord as Accessory. — One who rents a house to an-
other with the knowledge that the latter intends to use it for
the illegal sale or storage of intoxicating liquors, is an ac-
cessory, aiding and abetting in the commission of this offense,
and therefore may be convicted of this misdemeanor as a
principal ; but it is for the jury alone, and not the court, to
determine whether certain facts constitute criminal negli-
gence, and for that reason it was error to charge the jury
that, if the defendant, when he rented hjs home, had an op-
portunity to know that the person to whom he rented it in-
tended to use it for the illegal sale or keeping of liquors, he
Avould fie guilty.
Moody v. State, 14 Ga. App. 523, 81 S. E. 588.
Procurer as Aider and Abettor. — Alabama Acts, Sp.
Sess. 1907, p. 71, makes it unlawful for any person to sell,
barter, exchange, give away, or otherwise dispose of spirit-
uous liquors, and Code 1907, 7363, makes it a crime to aid,
abet, counsel, or procure any unlawful sale, purchase, or
gift or other unlawful disposition, of such liquors. Held,
that since one who procures prohibited liquors for another,
who receives the same, necessarily also aids and abets the
sale or unlawful disposition thereof by the dispenser, the
116 TITLE II— SEC. 3 OP ACT
one so procuring is guilty of aiding and abetting though the
purchaser or receiver may not be punishable.
Johnson v. State, 172 Ala. 424, 55 So. 226, Ann. Cas.
1913E, 296.
And one who procured liquor from an illicit dealer in the
state by purchase and delivered it to another, both the pur-
chase and the delivery being made at a place where the sale
of liquor is prohibited, is deemed a principal, and liable crim-
inally as the seller of the liquor is liable, since in misde-
meanors all who participated in the offense are principals.
State v. Burchfield, 149 N. C. 537, 63 S. E. 89, 16 Ann.
Cas. 555.
But where the penalties of the statute are directed against
the seller and not against the buyer, one who purchases in-
toxicating liquor in a dry county at the solicitation of an-
other, and with his money and for his use and as his agent,
in good faith, and not as a subterfuge or for purposes of
evasion, does not commit an offense.
State v. Provencher, 135 Minn. 214, 160 N. W. 673,
Ann. Cas. 1917E, 598.
The law, however, does not countenance an evasion or
subterfuge. The claimed agency must be exercised in good
faith and not to hide a participation in an illegal traffic. The
evidence in this case was such as to make the defense of
agency in good faith for the jury, and the court by charging
that there was no defense of agency in good faith errone-
ously deprived the defendant of the right to have the ques-
tion determined by the jury.
State v. Provencher, 135 Minn. 214, 160 N. W. 673,
Ann. Cas. 1917E, 598.
Using Name of Another in Ordering or Receiving
Liquor. — "Where it would appear to have been the intention
of the lawmaker to make it an offense for a person to use
the name of another in ordering or receiving, either person-
ally or through an agent authorized in writing, shipments of
intoxicating liquors in prohibited territory ; in either case the
offense consists, not in ordering the liquor, whether for le-
gal or illegal purposes, but in using the name of another in
TITLE II— SEC. 3 OF ACT 117
the ordering and receiving; and section 8, in declaring that
'it shall be unlawful for any person to use the name of an-
other in ordering or receiving,' etc., is to be interpreted as
meaning that it shall be unlawful for any person to use a
name other than his own for the purpose stated, and it is
therefore immaterial in a prosecution under that section
whether the name which the defendant is charged with hav-
ing used is that of a real or a fictitious person."
State v. Ferris, 142 La. 198, 76 So. 608.
Requesting Another to Bring in Liquor. — Under the
first Arizona constitutional amendment, prohibiting the in-
troduction of intoxicating liquors into the state, one who re-
quested another to bring liquor into the state was punish-
able as a principal, although he purchased it from such per-
son within the state, under Pen. Code 1913, § 27, relating to
parties to crimes.
Stover v. State, 19 Ariz. 308, 170 Pac. 788.
Permitting Sales on Leased Premises. — Under a law
defining the crime of permitting liquor to be sold on leased
premises in local option territory, it must be shown that the
leasing was with intent or with knowledge that liquors were
to be sold on the premises.
Elkhorn Min. Corp. v. Commonwealth, 173 Ky. 417, 191
S. W. 256.
Aiding in Preparing for Business. — The mere fact that
a manufacturer or wholesaler furnishes to a retailer money
and fixtures for the purpose of enabling the retailer him-
self to conduct a retail liquor business does not violate the
law.
Baxter v. Chattanooga Brewing Co. (Ala.), 82 So. 16.
The invalidating effect of the law prohibiting one engaged
in the manufacture or sale of intoxicants from conducting
business for the retail of such liquors, cannot be visited upon
an agreement not made for the purpose of conducting a re-
tail liquor business, either in the name of the manufacturer
or wholesaler or in the name of another.
Baxter v. Chattanooga Brewing Co. (Ala.), 8 So. 16.
118 TITLE II— SEC. 3 OF ACT
Purchase. — In some states it is not unlawful for one to
buy intoxicating liquor, for his own use and bring it into the
state, or to have liquor so purchased in his possession for
personal use.
Adams Exp. Co. v. Commonwealth, 154 Ky. 462, 157 S.
E. 908, 48 L. R. A., N. S., 342.
Commonwealth v. White (Ky.), 179 S. E. 469.
A person aiding the buyer, but not the seller, is not guilty
of selling intoxicating liquors since the statute does not make
the purchase, but only the sale, unlawful.
Wilson v. State, 130 Ark. 204, 1% S. W. 921.
And it being no violation of law for a person to purchase
intoxicating liquor; it was not a violation of law for ac-
cused to aid the purchaser in buying liquor at his instance;
it not appearing that accused was in any wise agent for the
seller.
Harris v. State, 113 Miss. 457, 74 So. 323, L. R. A.
1917D, 1013n.
Hightower v. State, 73 Tex. Cr. App. 258, 165 S. W.
184.
Loan. — A loan of beer is a violation of the Alabama
prohibition law.
. Sanders v. State (Ala. App.), 79 So. 312.
One who as an accommodation, loaned to another whisky
with the understanding that a similar amount was to be re-
turned cannot be convicted for the sale or barter of intoxi-
cating liquors, since in a loan goods are transferred to an-
other to be returned by the latter to the lender in kind, while
a sale is a transfer of property in consideration of the pay-
ment of money, and a barter is an exchange of goods for
other goods.
Jones v. State, 108 Miss. 530, 66 So. 987.
Evidence that whisky was loaned by defendant to another
will not sustain a conviction for illegal sale of intoxicating
liquor.
Garfield v. State. 114 Miss. 710, 75 So. 548.
TITLE II— SEC. 3 OF ACT 119
Gift of Liquor.
Giving a friend a drink of whisky, though in a place where
no one could see what was being done, is a violation of the
Alabama law.
Haynes v. State, 5 Ala. App. 167, 59 So. 325.
Grace v. State, 1 Ala. App. 211, 56 So. 25.
Furnishing.
The word "furnish," as used in a statute, prohibiting a
furnishing of alcoholic liquors in certain terrritory, means
to supply, to offer for use, to give, or to hand.
People v. Joy, 30 Cal. App. 36, 157 Pac. 507.
Furnishing to Soldier. — If certain bottles in defendant's
possession contained wine which would intoxicate, and de-
fendant left a bottle where his brother-in-law, a marine in
the military forces of the United States, could get it by ar-
rangement, defendant violated Acts 35th Leg. (4th Called
Sess.) c. 7, punishing the procuring or furnishing of intox-
icating liquors for or to any person in the military service
of the United States.
Gardner v. State (Tex. Cr. App.), 212 S. W. 169.
Barter or Exchange for Other Property.
Under a state statute making it unlawful for any person
to sell, barter, exchange, give away, or otherwise dispose of,
spirituous liquors; and another statute making it a crime to
aid, abet, counsel, or procure any unlawful sale, purchase, or
gift, or other unlawful disposition of such liquors, with the
further provision that a conviction for violation thereof may
be had under an indictment for selling such liquor contrary
to law, a conviction may be had on proof of a barter or ex-
change of liquor for other property.
Johnson v. State, 172 Ala. 424, 55 So. 226, Ann. Cas.
1913E. 296.
Exchange for Stolen Property. — "Under the prohibi-
tion law, making it unlawful to sell or barter for a valuable
consideration intoxicating liquors, the exchange of intoxi-
cating liquors for stolen property constitutes a violation."
Turner v. State, 18 Ga. App. 393, 89 S. E. 538.
120 TITLE II— SEC. 3 OF ACT
Transporting Liquor.
See also post, Sees. 10, 13, 14, and 15.
Receiving from Carrier Construed. — A statute making
it unlawful to receive intoxicating liquors from a common
or other carrier, or to possess liquors so received, is not
confined to carriers for hire, but was intended to cover ev-
ery phase of the handling of intoxicants except as other-
wise indicated in the statute.
Liquor Transp. Cases v. State, 140 Tenn. (13 Thomp-
son) 582, 205 S. W. 423.
As to receiving altar wine from carrier and transporta-
tion thereof, see ante, under Sec. 6.
On Person. — Under a section providing that "no person,
except as provided in this chapter shall bring into this state
or transport from place to place within this state, by wagon,
cart, or other vehicle, or by any other means or mode of
carriage, any liquor or liquids containing alcohol," * * *
transport means to carry or convey from one place to an-
other, and carrying liquor on the person is a means or mode
of carriage.
State v. Pope, 79 S. C. 87, 60 S. E. 234.
A defendant, who asked a witness against him whether
he wanted some whisky, and who, on an affirmative answer,
went away to some hidden store and returned carrying a
quart of whisky in his hand, which he handed to the witness
for a price, was guilty of carrying around on his person in-
toxicating liquor with intent to sell it.
State v. Alderman (la.), 174 N. W. 30.
Accessory to Transportation. — Under the constitu-
tional amendment prohibiting the introduction of whisky in-
to the state for sale, one aiding and assisting the principal in
the commission of the offense by driving an automobile hired
by the principal, if knowing that he was assisting the prin-
cipal in bringing the whisky into the state or if having rea-
son to know and making no investigation or inquiry, would
be guilty of an offense, as, though it might be impossible for
him to definitely ascertain the purpose for which the prin-
TITLE II— SEC. 3 OF ACT 121
cipal was bringing liquor into the state, he should at least
have made some inquiry into such purpose.
Aaron v. State, 18 Ariz. 378, 161 Pac. 881.
Conspiracy. — There may be a conspiracy to violate the
Reed Amendment (Comp. St. 1918, §§ 8739a, 10387a-
10387c) by transporting liquor into a prohibition state, in-
dictable under Criminal Code, § 37 (Comp. St. § 10201).
Laughter v. United States (C. C. A.), 259 Fed. 94.
To create such relation, between a conspiracy and the
substantive offense which was its purpose, as ought to pre-
vent a double prosecution, there must be a complete identity
between those acts which are the overt acts essential to make
the conspiracy punishable and those acts which are neces-
sary to make out the substantive offense.
Laughter v. United States (C. C. A.), 259 Fed. 94.
For Unlawful Use. — Under the Federal law prohibit-
ing the transportation of intoxicating liquors from one state
to another, for unlawful use in the latter state, and state
law prohibiting the sale or keeping for sale of intoxicating
liquors, etc., an interstate carrier is not prohibited from
bringing into the state intoxicating liquors, except only such
as are intended for unlawful use in the state, and a carrier
in possession of liquors for delivery to a person who intends
to use the same in violation of law, or a carrier delivering
in the state liquor to a person in the state intending to use
the same illegally, violates the state law, unless it has no
knowledge of the unlawful purpose.
Southern Exp. Co. v. State, 188 Ala. 454, 66 So. 115.
"Shipment." — "To deliver for shipment and to ship
mean the same thing."
State v. Lieber, 143 La. 158, 78 So. 431.
Private Carrier. — A private carrier could, under the
South Carolina statute, for hire or as a favor, bring into
the state not more than one gallon of liquor for another per-
son's personal use during one calendar month without in-
122 TITLE II— SEC. 3 OF ACT
tent to violate the law, having the same privilege of trans-
porting liquor as a common carrier for hire.
State v. Gens, 107 S. C. 448, 93 S. E. 139.
A person ordering liquor, not exceeding a gallon a month,
to be brought into the state for his personal consumption,
had the choice of bringing it in by a private carrier for hire
or a common carrier.
State v. Allston, 107 S. C. 485, 93 S. E. 177.
But a law prohibiting transporting liquor into the state,
for another does not apply to one who carries liquor into the
state for himself for purpose of resale.
Rivard v. State, 133 Ark. 1, 202 S. W. 39.
Possession for Transportation to Druggist. — Under
the Georgia statute, it is not illegal for a common carrier
to have possession of pure alcohol to transport from a
wholesale druggist to a practicing physician at another point
in the state, keeping drugs in his office to compound his own
medicine and using alcohol for medicinal purposes only,
where all conditions of act were complied with.
Southern Exp. Co. v. State (Ga. App.), 100 S. E. 791;
S. C., 100 S. E. 109.
Automobile as a Common Carrier. — An automobile
may be so used as to become a "common carrier'' in inter-
state commerce.
United States v. Simpson (D. C.), 257 Fed. 860.
Within State.— "In Munn v. State, 5 Okl. Cr. App. 245,
114 Pac. 272, it is held: 'When a person is charged with
conveying intoxicating liquor from a point unknown to some
definite point named, and the proof shows that the person
so charged, when first discovered, was conveying whisky,
and fails to show from what definite point he started with
it, it is sufficient.' In Rupard v. State, 7 Okl. Cr. App. 201,
122 Pac. 1108, it is held: 'In prosecutions for unlawfully
conveying intoxicating liquors from one place in this state
to another place therein, the state is only required to estab-
lish by the proof, beyond a reasonable doubt, that the liq-
uor charged to have been conveyed, or some portion of it,
TITLE II— SEC. 3 OF ACT 123
was conveyed as alleged in the information.' In Watkins v.
State, 13 Okl. Cr. App. 507, 165 Pac. 621, it is held: 'It is
unlawful for any person to convey from place to place with-
in this state intoxicating liquors which said person has pre-
viously purchased within this state, and it is immaterial
whether the person so purchasing such liquor and convey-
ing the same intended to use such liquor lawfully or unlaw-
fully. Intent is not a material ingredient of the offense of
conveying intoxicating liquors.' Maynes v. State, 6 Okla.
Cr. App. 487, 119 Pac. 644."
McNeal v. State (Okl. Cr. App.), 179 Pac. 943, 944.
From Train to Depot. — A carrying of intoxicating liq-
uors from a train to the depot platform is a "transportation."
Liquor Transp. Cases v. State, 140 Tenn. (13 Thomp-
son) 582, 205 S. W. 423, 424.
Delivery by Carrier to Transfer Company. — In view
of Rem. Code Wash. 1915, § 6262 — 15, authorizing a person
to bring into the state two quarts of whisky or a dozen quarts
of beer, first obtaining a permit giving his name, which shall
be affixed to the package, and requiring the Carrier before de-
livering the package to cancel the permit, and section 6262-
18, making it unlawful for a carrier to bring liquor into the
state otherwise than permitted by the statute, it would be a
crime, both under such statute and Criminal Code, § 240
(Comp. St. § 10410), for a carrier to deliver to a transfer
company named as consignee in the bill of lading, a carload
of liquor made up of packages bearing permits so issued to
individuals.
Great Northern Pac. S. S. Co. v. Rainier Brewing Co.
(C. C. A.), 255 Fed. 762.
Shipment into Indian Reservation. — Where a state
law forbids manufacture and sale of intoxicating liquors
therein, interstate shipments of intoxicating liquors into a
portion which formerly was an Indian reservation are not
authorized, because Indian titles have been extinguished, the
Webb-Kenyon Act having deprived such shipments of pro-
tection arising out of their interstate character.
Missouri, etc., R. Co. v. Danciger, 160 C. C. A. 176, 248
Fed. 36.
124 TITLE II— SEC. 3 OF ACT
The provision of Act March 1, 1895, § 8 (Comp. St. §
4136b), making it an offense to carry or have carried intoxi-
cating liquors into Indian Territory, held not repealed by
implication by Act March 3, 1917, § 5 (Comp. St. 1918, §§
8739a, 10387a-10387c), and to be still in force in that part
of Oklahoma then comprising Indian Territory.
United States v. Luther (D. C.), 260 Fed. 579.
Intent Immaterial. — Where it is unlawful for any per-
son to convey from place to place within a state intoxicating
liquors which said person has previously purchased within
this state, it is immaterial whether the person so purchas-
ing such liquor, and conveying the same intended to use
such liquor lawfully or unlawfully. Intent is not a material
ingredient of the offense of conveying intoxicating liquors.
Watkins v. State, 13 Okla. Cr. App. 507, 165 Pac. 621.
But to render a carrier liable to a penalty under Ky. St.
2569b, of knowingly transporting and delivering intoxicating
liquor intended for sale, it is necessary that the agent of the
carrier making the delivery knew of the purpose or use to
which such liquor was to be put, and knowledge of the agent
at other points is insufficient.
American Exp. Co. v. Commonwealth, 171 Ky. 1, 186
S. \Y. 887.
And a person who conveys a package from one place in
this state to another place therein, which package contains
intoxicating liquor of which he has no knowledge and no in-
formation sufficient to put a reasonable man on inquiry, is
not subject to the punishment imposed by the statute for un-
lawfully conveying intoxicating liquor from one place in this
state to another place therein.
Golpi v. State, 14 Okla. Cr. App. 564, 174 Pac. 288.
Movement on Own Premises. — A law forbidding the
transportation of intoxicating liquor into the state or from
one point to another within the state, contemplates nothing
less than the transporting from one premises to another and
does not forbid a movement of liquors by a person within
the limits of his own premises or in his own house.
Liquor Transp. Cases v. State, 140 Tenn. (13 Thomp-
son) 582, 205 S. W. 423.
TITLE II— SEC. 3 OF ACT 125
Delivery as Distinguished from Transportation. — A
mere delivery of liquor by one person to another, entirely
disconnected with the act of transporting liquor into the
state, does not constitute an offense under a law denouncing
the shipment, transportation, or delivery of liquors from an-
other state or territory or foreign country to another person,
firm, or corporation in the state.
Winfrey v. State, 133 Ark. 357, 202 S. W. 23.
Transporting by Agent. — Where one convicted of trans-
porting intoxicating liquors within the limits of a town in
violation of an ordinance, had not entered the corporate
limits but had the liquor transported by his agent, he was
guilty under the rule that one may commit a crime through
the agency of another.
Hartsville v. McCall, 101 S. C. 277, 85 S. E. 599.
Though a statute makes it unlawful "to convey or trans-
port over or along any public street or highway any of said
liquors, bitters or drinks for another," yet as the party for
whom they are transported could lawfully transport them
for himself, he is not guilty of the offense as aiding and
assisting those unlawfully transporting them for him.
Edwards v. State (Ark.), 213 S. W. 11.
Carrying away liquor bought on prescription, see ante,
under Sec. 8.
Interstate Commerce. — Transportation of intoxicants
by automobile from one state to another is "interstate com-
merce."
Ex parte Westbrook (D. C.), 250 Fed. 636.
Extraterritorial Effect. — An act making it a misde-
meanor to transport intoxicating liquor into the state, can
have no extraterritorial effect, and so cannot make guilty as
an aider one who outside the state delivers the liquor to the
carrier.
Burton v. State (Ark.), 206 S. W. 51.
Liability of Consignor. — The words declaring it an of-
fense "to ship" or to "transport," intoxicating liquor into the
126 TITLE II— SEC. 3 OF ACT
state, are synonymous, and apply to the carrier, and not the
consignor.
Burton v. State (Ark.), 206 S. W. 51.
Destination Determines Interstate Character. — So
far as original carrier of intoxicating liquors is concerned,
the character of the shipment as to being interstate is de-
termined by the destination named in the bill of lading.
State v. Great Northern R. Co., 98 Wash. 197, 167 Pac.
103.
A shipment of liquor from a point without the state to a
point within it cannot be regarded as an intrastate shipment
though, before the shipment reaches its destination, it passes
.after crossing the boundary line of the state, from one point
in it to another.
Robertson v. State, 130 Ark. 158, 197 S. W. 31.
When State Jurisdiction Attaches — Draying Liquor
from Depot. — "Defendant's admission that he was convey-
ing beer, and his contention that the three barrels belonged
to three different named individuals, to whom he was merely
taking the shipments from a depot as a drayman, and that
beer was a part of an interstate shipment into part of state
formerly Oklahoma Territory, which consignees had a right
to have conveyed to them from depot, did not bring defend-
ant within protection of interstate commerce clause (Const.
U. S. art. 1, § 8)."
Smith v. State (Okla. Cr. App.), 181 Pac. 942.
Reed Amendment — What Constitutes Violation. —
The Reed amendment to postal appropriation made by Act
March 3, 1917 (Comp. St. 1918, § 8739a), is not violated
unless there is actual transportation of intoxicating liquors
from point without to point within state, which has prohib-
ited their manufacture or sale; "into," as used, conveying
idea of entrance, passage, or motion.
United States v. Collins (D. C.), 254 Fed. 869.
Relative to transporting liquor into a prohibition state in
violation of Act March 3, 1917, § 5 (Comp. St. 1918, §
8739a), defendant having actually transported whisky in his
TITLE II— SEC. 3 OF ACT 127
boat across the state line in the Mississippi into Tennessee,
and with intent that it should finally remain in that state,
it was immaterial that he had incidentally gone out again
with his boat and cargo, or that he was outside it when ar-
rested.
Bishop v. United States (C. C. A.), 259 Fed. 195.
Proof that defendant loaded liquor into an automobile in
Mississippi and had carried it across into Tennessee along
the highway to Memphis when arrested, held sufficient to
sustain a conviction for violation of the Reed amendment,
although in following the road they were about to cross the
line again into Mississippi; there being evidence to warrant
a finding that their intended destination was Memphis.
Jones v. United States (C. C. A.), 259 Fed. 104.
If one transports intoxicating liquors into a state whose
laws prohibit their sale and manufacture, but in doing so
employs no instrumentality of interstate commerce, he does
not violate the Reed- Jones Amendment, § 5 (U. S. Comp.
St. 1918, § 8739a).
Sickel v. Commonwealth (Va.), 99 S. E. 678.
Employees on an interstate train passing through the state
were passengers, and could not be convicted under the State
Prohibition Law by proof that more than one quart of liq-
uor was found in their possession, in the absence of evidence
that they intended to dispose of the same while in the state;
such employees being protected by the Commerce Clause of
the federal Constitution, and the Reed Amendment (U. S.
Comp. St. 1918, § 8739a) to the Webb-Kenyon Act March
1, 1913 (U. S. Comp. St. § 8739), not prohibiting the trans-
portation of liquor through a state.
Martin v. Commonwealth (Va.), 100 S. E. 836.
The Va. Acts 1916, c. 146, do not prohibit the transpor-
tation of liquor through the state, nor a passenger passing
through the state from having liquor in his possession while
on the train of an interstate carrier passing through the
state.
Martin v. Commonwealth (Va.), 100 S. E. 836.
128 TITLE II— SEC. 3 OF ACT
Distance of Transportation. — Under the Reed Amend-
ment persons who procured liquor in Florida, loaded it into
a motorcar, and started to carry the same into Georgia, are
guilty of violation of some of the provisions of the act, the
transportation of the liquor being interstate commerce, even
though defendants were arrested before they had driven two
miles.
Ex parte Westbrook (D. C.), 250 Fed. 636.
Reed Amendment Applies Only to State -Wide Dry
States.— The Reed Amendment (Comp. St. 1918, § 8739a),
prohibiting transportation of intoxicating liquors in inter-
state commerce into any state whose laws prohibit manufac-
ture or sale, applies only to states that have prohibited man-
ufacture or sale within entire territory, not merely in parts
under local option.
United States v. Collins (D. C.), 254 Fed. 869.
But it is held to be unlawful under this statute for an in-
terstate carrier to transport for beverage purposes intoxicat-
ing liquors from without the state into a county which had
adopted prohibition, Rev. St. Tex. 1911, art. 5727, declaring
the sale, etc., within prohibition territory of intoxicating liq-
uors with intent to violate the law, to be an offense.
McAdams v. Wells Fargo & Co. Exp. (D. C.), 249 Fed.
175.
To render the Reed Amendment (Act March 3, 1917, § 5
[Comp. St. 1918, §§ 8739a, 10387a-10387c]), prohibiting the
transportation of liquor in interstate commerce, except for
certain purposes, into any state "the laws of which prohibit
the manufacture or sale therein," of liquors for beverage
purposes, applicable to a state, it must have adopted a gen-
eral policy of prohibition throughout its territory; but it is
not essential that such prohibition should be literally without
exception.
Laughter v. United States (C. C. A.), 259 Fed. 94.
Transportation under Reed Amendment Where Con-
stitutionality of State Law Undecided. — "Transporta-
tion of intoxicating liquors into Texas, which has prohibited
their manufacture for beverage purposes, is violation of Reed
TITLE II— SEC. 3 OF ACT 129
Amendment of postal appropriation made by Act March 3,
1917 (Comp. St. 1918, § 8739a), though there is some ground
to believe court of last resort in Texas will hold state pro-
hibitory law unconstitutional, as the federal court will not
anticipate and be guided by what the state court might there-
after hold."
United States v. Collins (D. C.), 254 Fed. 869.
Importation for Importer's Consumption as Allowed
by State Law. — Reed Amendment (part of section 5 of
Act March 3, 1917 [Comp. St. 1918, §§ 8739a, 10387a-
10387c]), declaring a punishment for one causing liquor to
be transported in interstate commerce, except for certain pur-
poses, into a state whose laws prohibit its manufacture or
sale there for beverage purposes, providing that nothing
therein shall authorize shipment of liquor into a state con-
trary to its laws, held, in view of the prior Wilson and Webb-
Kenyon Acts (Comp. St. §§ 8738, 8739), not intended merely
to aid the state law, but to apply to liquor which a person
was bringing in for his own consumption, as allowed by the
state law.
United States v. Hill, 248 U. S. 420, 39 S. Ct. 143.
Transporting through Dry State to Wet State. — It
is not a violation of the Reed Amendment (Comp. St. §
8739a) to carry intoxicating liquors from a state in which
sale was allowed across a state in which sale was prohibited,
where the liquor was destined for a third state in which sale
was permitted.
Berryman v. United States (C. C. A.), 259 Fed. 208.
United States v. Gudger, 249 U. S. 373, 39 Sup. Ct. 323,
63 L. Ed. — .
Preyer v. United States (C. C. A.), 260 Fed. 157.
Delivery to Minor — Webb-Kenyon Act.— An express
company is guilty of a crime in delivering shipments of liq-
uor from another state to a minor in Alabama, under Gen.
Acts 1915, p. 43, § 10, and the Webb-Kenyon Act (U. S.
Comp. St. § 8739).
Perry v. Southern Exp. Co. (Ala.), 81 So. 619.
130 TITLE II— SEC. 3 OF ACT
As Question for Jury. — Under Ky. St. 2569a and the
Webb-Kenyon Act (Act March 1, 1913, c. 90, 37 Stat. 699)
relative to the transportation of intoxicating liquor, where
a carrier transported whisky in the usual course of business,
without knowing or believing that the consignee who re-
ceived it in territory where its sales was forbidden intended
to sell it, but believing that it was for his personal use, its
guilt was for the jury, since if it acted upon reasonable
grounds in good faith after such investigation as ordinary
care required and was misled, it was not liable.
Adams Exp. Co. v. Commonwealth, 160 Ky. 66, 169
S. W. 603.
Unbroken Packages — Burden of Proof. — Regardless
of a provision casting the burden upon the person claiming
the article seized in a proceeding to confiscate an interstate
shipment of liquor side-tracked within this state, the burden
was on the state to prove that the shipment was in fact not
interstate, under a section, providing that the prohibitory pro-
visions "shall not apply to shipments transported by any com-
mon carrier of unbroken packages of intoxicating liquor in
continuous transit through this gate from a point outside of
the state to another point outside of the state."
State v. Great Northern R. Co., 98 Wash. 197, 167 Pac.
103.
Burden of Proof. — An employee on a train of an inter-
state carrier passing through the state did not have the bur-
den, under Va. Acts 1916, c. 146, to prove that he was on an
interstate journey through the state; although ardent spirits
in excess of one quart were found in his possession, the evi-
dence for the state showing that the liquor was found upon
the train itself.
Martin v. Commonwealth (Va.), 100 S. E. 836.
Transportation of Wines for Sacramental Purposes.
— Under the law making it lawful for any common carrier
or other carrier to transport wines for sacramental purposes
to any priest or minister, a sexton of a church or communi-
cant may convey either for or without hire wine to the priest
or minister.
Liquor Transp. Cases v. State, 140 Tenn. (13 Thomp-
son) 582, 205 S. W. 423.
TITLE II— SEC. 3 OF ACT 131
Possession.
As to possession as evidence of crime, see post, Sec-
tion 33.
Constitutionality. — That part of the "prohibition law,"
which declares it to be a misdemeanor for one to have, con-
trol, or possess any alcoholic, spirituous, malt, or intoxicat-
ing liquors, or other liquors which, if drunk to excess, will
produce intoxication, is not unconstitutional.
Cureton v. State, 135 Ga. 660, 70 S. E. 332, 49 L. R. A.,
N. S., 182n.
Delaney v. Plunkett, 146 Ga. 547, 550, 91 S. E. 561, L.
R. A. 1917D, 926n, Ann. Cas. 1917E, 685.
Barbour v. State, 146 Ga. 667, 668, 92 S. E. 70.
Jackson v. State, 148 Ga. 351, 96 S. E. 1001, decided
September 10, 1918.
Saddler v. State, 148 Ga. 462, 97 S. E. 79.
Time of Acquiring. — Under a statute making it unlawful
to have in possession liquor of more than a certain amount,
it is immaterial that it was lawfully acquired before the act
went into effect.
O'Rear v. State, 15 Ala. App. 17, 72 So. 505.
In Residence. — A person, who stores liquors in a garage
disconnected from his dwelling house, violates a law pro-
hibiting the storing of liquors, except in a "private residence,"
which means actual dwelling house, and not all buildings
within curtilage.
People v. Labbe (Mich.), 168 N. W. 451.
Storing or Keeping Liquor at Other than Private
House or Room. — One who, receiving whisky from an ex-
press office, placed the liquor temporarily in a room in house
of his employer until he could get off at dinner and carry it
to his own house in another part of town did not thereby
violate an ordinance forbidding "storing" or "keeping" of
liquor at another place than his house or private room al-
though when leaving the liquor he opened the package and
took a drink.
Newberry v. Dorrah, 105 S. C. 28, 89 S. E. 402.
132 TITLE II— SEC. 3 OF ACT
In a prosecution for unlawfully keeping ardent spirits in a
place other than a bona fide home for personal use where it
appeared that defendant lived above a store in which he sold
soft drinks and had stored spirits in a vacant store building
owned by him fronting on the next street, and also in a gro-
cery store adjacent to the building wherein he lived, connect-
ing by a hallway across an alley, the place wherein the liquor
was stored, was not within the curtilage of his bona fide
residence.
Pettus v. Commonwealth, 123 Va. 806, 96 S. E. 161, 162.
Temporary Possession. — One who received from an-
other, though only for temporary keeping, a grip containing
whisky, with knowledge that it contained more than a quart,
violated a law prohibiting the having in possession at one
time of more than one quart of spirituous liquor.
State v. Willey (Del.), 108 Atl. 79.
But if accused had liquor in her restaurant, merely keeping
it there until she should go home in order to give it to her
sick mother, she was not guilty of storing liquor since "stor-
ing" is the act of laying away against a future time, and in-
volves the idea of continuity or habit.
State v. Bradley, 109 S. C. 411, 96 S. E. 142.
"Under the ruling of the majority of the court in Cohen
v. State, 7 Ga. App. 5, 65 S. E. 1096, one who intentionally
carries whisky to his place of business, and keeps it there for
any length of time, no matter for what reason or for what
purpose, may be convicted of the offense of keeping intoxi-
cating liquors on hand at his place of business."
Nowell v. State, 18 Ga. App. 143, 88 S. E. 909.
Liquor Placed on Premises by Third Person. — The
fact that whisky was placed on the premises of a soft drink
establishment by a third party, with the owner's knowledge,
is not a violation of a statute, condemning the keeping or
storing of prohibited liquors on the premises of a person en-
gaged in selling beverages.
Brown v. State (Ala. App.), 81 So. 366.
Physical Possession Unnecessary. — Where liquors
were found in defendant's residence, it was not necessarily
TITLE II— SEC. 3 OF ACT 133
a complete defense that he was not at his residence when
liquors were found, or since they were put in residence, as
one may unlawfully have, control, or possess liquor without
being present at place of storage, or having it in his physi-
cal possession.
Hendrix v. State (Ga. App.), 100 S. E. 55.
Keeping under Joint Ownership.— Where defendant,
who with his son-in-law and their respective families was
going on a fishing trip, purchased liquor for use of the party,
the son-in-law furnishing half the money, held that, though
defendant be considered the agent of the son-in-law, and that
title to half the liquor passed to him on the purchase, yet
defendant was guilty of unlawfully keeping intoxicating liq-
uor with intent to barter, exchange, give away, furnish, and
otherwise dispose of the same, in violation of law, for the
delivery of the liquor to the son-in-law would be a "disposal,"
etc.
Banks v. State (Ind.), 123 N. E. 691.
Possession of Apparatus for Distilling or Manufac-
ture.— Under a provision making it an offense to knowingly
permit or allow any one to have, possess, or locate on his
premises any apparatus for the distilling or manufacturing
of the liquors and beverages specified in the act, neither
"mash" nor "mobby" is a part of the "apparatus for the dis-
tilling or manufacturing" of the liquors, etc.
Davis v. State (Ga. App.), 100 S. E. 782.
Without Knowledge. — That a lard can found in defend-
ant's house is an apparatus for distilling and manufacturing
whisky does not justify a conviction, where the undisputed
evidence showed that such lard can had been brought to the
house and left there only a few hours before, without de-
fendant's knowledge.
Parker v. State (Ga. App.), 100 S. E. 38.
Keeping Liquor Stored for Sale.— To keep liquor
stored for sale is to keep liquors with intent to sell same.
People v. Bullock, 173 Mich. 397, 139 N. W. 43.
134 TITLE II— SEC. 3 OF ACT
General Application of Prohibition. — Burns' Ann. St.
of Indiana Supp. 1918, § 8356d (Acts 1917, c. 4, § 4), pro-
hibiting the keeping of intoxicating liquor with intent to sell,
is not intended to apply only to those having bonded liquor,
but is general in its application.
State v. Sarlin (Ind.), 123 N. E. 800.
If a person has liquor in his possession for the purposes
of sale he is guilty of the crime of having possession of liq-
uor with intent to sell it, whether he makes a sale or not.
State v. Simons (N. C.), 100 S. E. 239.
Combs v. Commonwealth, 162 Ky. 86, 172 S. W. 101.
Amount Immaterial. — "In a prosecution for having in
possession spirituous liquor for purposes of sale, the amount
kept on hand by defendant is immaterial as far as his guilt
is concerned ; the gist of the offense being to have intoxicat-
ing liquor on hand for the purpose of sale."
State v. Simmerson (N. C.), 98 S. E. 784.
Keeping or Maintaining Club Room or Place Where
Liquor Is Received or Kept for Use, Gift, or Sale.
A provision prohibiting keeping or maintaining any club-
room or other place in which liquors are received or kept for
use, gift, or sale does not refer alone to a clubroom, but in-
cludes any other "place" such as a place walled off by a can-
vas tent in a street ; and a corporation organized for a legiti-
mate purpose, which maintains a canvas tent in a street and
there dispenses intoxicating liquor, is within the statute.
Shideler v. Tribe of the Sioux, 158 la. 417, 139 N. W.
897.
Nor is it necessary that there shall be any permanent keep-
ing; and a corporation organized for a legitimate purpose,
which distributes liquors as a part of an entertainment to
visitors in the city, violates the statute.
Shideler v. Tribe of the Sioux, 158 la. 417, 139 N. \V.
897.
But under a Texas statute, a club dispensing intoxicating
liquors to members and guests in good faith is not engaged in
the business of selling intoxicating liquors.
Country Club v. State (Tex.), 214 S. W. 296.
TITLE II— SEC. 3 OF ACT 135
Liability of Member of Social Club. — A member of a
bona fide social club which has paid the tax required by law
as a condition precedent to keeping on hand intoxicating liq-
uors for the use of its members, and which dispenses such
liquors in a manner prohibited by law, is not, by reason of
his membership, guilty of either selling intoxicating liquors
or keeping them on hand at his place of business. A mem-
ber of such a club would not be guilty of either offense un-
less it be shown that he participated in some way in the crim-
inal act. Mere knowledge on his part that sales of liquor
were being made, and his failure to object thereto, would
not amount to a crime.
Wright v. State, 14 Ga. App. 185, 80 S. E. 544.
"Any one or more of its members who engaged in the sale
of liquors are as amenable to the law as if one of them had,
while in the clubrooms, committed murder or larceny or any
other criminal offense. Nor does it make any difference that
no profit was received from the sale of the liquor."
Deal v. State, 14 Ga. App. 121, 80 S. E. 537, 541.
Liability of Manager of Social Club. — The manager of
a social club, who orders intoxicating liquor for the use of
its members and who either directly or indirectly procures,
counsels, commands, aids or abets in the making of a sale of
such liquors, is guilty as a principal. This is true even
though such manager may not have been present when the
particular sale was made, nor had knowledge of such sale
until after it was consummated.
Deal v. State, 14 Ga. App. 121, 80 S. E. 537.
Sale by Employee of Social Club. — On the trial of an
indictment for selling liquor, it was held no defense that the
accused sold the liquor as an employee of the social club to
the members thereof. Intoxicating liquor cannot be sold in
Georgia by an individual or a corporation as a beverage, and
where a steward of a social club sells to the members of the
club intoxicating liquor, he is guilty of a violation of what
is known as the prohibition law, although in making the sale
he is acting solely for the benefit of the club.
Rothschild v. State, 12 Ga. App. 728, 78 S. E. 201.
136 TITLE II— SEC. 3 OF ACT
One employed by such a club as secretary and treasurer
and whose only duties are to collect the dues and fees from
the members, keep the books, and look after the correspond-
ence for the club, and who does not in any other way par-
ticipate in the illegal sale of intoxicating liquor by the club,
is not guilty either of selling intoxicating liquors or of keep-
ing them on hand at his place of business.
Wright v. State, 14 Ga. App. 185, 80 S. E. 544.
Use and Property Rights in Alcoholic Liquors.
"No exceptions being made in the act other than those ex-
pressed, it was the legislative intent to not only forbid the
possession but to abolish property rights in alcoholic liquors
within the confines of the state after August 1, 1917, aside
from the exceptions expressly provided for in the act, no
matter when or how acquired, for wrhat use intended, or in
what place kept or possessed."
State v. Certain Intoxicating Liquors (Utah), 172 Pac.
1050, 1051.
"It necessarily follows that the very purpose and intent
of the act was to preclude the right to use intoxicating liq-
uor within the state except for the specific purposes in the
act expressly mentioned and reserved. If liquor cannot be
legally acquired or procured, it may not be legally used.
While the law is somewhat drastic in some of its provisions
— doubtless it was so intended to be — yet in view of the tend-
ency of present day legislative enactments designed to pro-
tect the health, safety, morals and promote the general wel-
fare of organized society, it is not the province of the courts
to disregard the purpose and intent of the legislative so long
as the constitutional rights of the individual have not been
invaded."
State v. Certain Intoxicating Liquors (Utah), 172 Pac.
1050, 1052.
Intent and Knowledge of Intoxicating Character.
Intent to Do Prohibited Act Sufficient. — The only in-
tent necessary to constitute a violation of a statute prohibit-
ing the sale of intoxicating liquors without a license, is an
TITLE II— SEC. 3 OF ACT 137
intent to do the prohibited act, though the seller believes in
good faith that the sale is not prohibited by the statute.
State v. Country Club (Tex. Civ. App.), 173 S. W. 570.
Nor does a statute exempting from punishments persons
acting in ignorance or mistake of fact without criminal in-
tent, relieves a person selling a prohibited beverage.
Hill v. State, 19 Ariz. 78, 165 Pac. 326.
But, as said in another case : ''The old rule that original
intent must accompany a crime is still the law, even as to
liquors, so far as we have been able to ascertain. There
must be actual or constructive intent to do the thing which
constitutes the crime ; otherwise there is no criminal act. If
it can be said that the liquor in this case was in the posses-
sion of the defendant merely because it was in his shop,
when he did not know it, still such possession, not being con-
scious, was not actual and intentional possession, as con-
templated by the statute."
Jackson v. Gordon (Miss.), 80 So. 785.
Reliance on Brewer's Guaranty of Nonintoxicating
Character. — It is no defense to sale in violation of prohi-
bition, that defendants relied on a guaranty of the brewer
that the beer was nonintoxicating, and investigation showing
it did not contain enough alcohol to require an internal rev-
enue license.
Hall v. State (Ariz.), 165 Pac. 300.
Intent is not an ingredient of the offense of selling intox-
icating liquors in violation of statute and hence defendant's
testimony that the liquor which he sold had been sold to him
as cider under a guaranty that it did not have any alcohol in
it was properly excluded.
Beiser v. State, 9 Ala. App. 72, 63 So. 685.
"Knowingly" Construed. — "Knowingly," as used in a
statute making it unlawful for any person to knowingly de-
liver in dry territory a package of liquor intended for sale,
means only such information as would cause a person of or-
138 TITLE II— Ssc. 3 OF ACT •
dinary prudence to believe that the liquor was intended for
sale contrary to law.
American Exp. Co. v. Commonwealth, 171 Ky. 1, 186
S. W. 887.
But knowledge that the statement required on the package
is false is an essential of the crime.
Goodman v. Commonwealth, 169 Ky. 542, 184 S. W. 876.
"It is entirely immaterial with what intention an unlawful
purchase of prohibited liquors is transported from one to
another place in this state, and it is not a defense to a prose-
cution for transporting such liquors that the party trans-
porting them intends to use such liquors for a lawful pur-
pose."
Gilliland v. State (Okla. Cr. App.), 179 Pac. 786.
An ordinance, making it a misdemeanor to transport in-
toxicating liquors to certain prohibited places, construed to
apply only where there is evidence of a wrongful intent not
where the act is merely inadvertent.
Ex parte Ahart, 172 Cal. 762, 159 Pac. 160.
Imputed Knowledge. — Under a statute making it an of-
fense to deliver liquor in prohibition territory, "knowing
that the required statement of personal use is false," such
knowledge may be imputed to one who has not obtained of
the consignee a statement that the liquor is for personal use,
or who has not in good faith relied on such statement.
Goodman v. Commonwealth, 169 Ky. 542, 184 S. W. 876.
Intended Use as a Beverage. — To convict one of a sale
of spirituous liquor, it is necessary for the jury to find that
accused sold the liquor with intention that it be used as a
beverage, irrespective of the subsequent uses to which the
purchaser put it.
State v, Hastings, 2 Boyce's (25 Del.) 482, 81 Atl. 403.
Intent to Use as Medicine. — Jamaica ginger, contain-
ing more than 1 per cent of alcohol, is intoxicating liquor
within the meaning of Rev. St. c. 127, §§ 21, 22, and the one
having it in possession for sale violates the law, regardless of
TITLE II— SEC. 3 OF ACT 139
an intent of such person that it should be used only as a medi-
cine or for household purposes, and not as a beverage.
State v. Intoxicating Liquors and .Vessels (Me.), 106
Atl. 711.
Scienter Not Element of Offense. — Scienter is not an
element of the offenses created by the prohibition law of most
states. So in a prosecution for the illegal sale of malt liquor,
the defendant may successfully defend by showing that the
liquor he sold was not intoxicating, but not by showing
merely that in good faith he thought it was not intoxicating.
Battle v. State, 6 Ga. App. 578, 65 S. E. 333.
In a prosecution possessing intoxicating liquor, it is not
sufficient that the defendant hotel porter received as baggage
of an incoming guest a suit case, which he had no right to in-
spect and which contained liquor, but he must have had guilty
knowledge or intent.
State v. Cox, 91 Ore. 518, 179 Pac. 575.
As Question of Fact. — In a prosecution for being in con-
trol or possession of intoxicating liquor, where defense is that
defendant had no knowledge of the presence of the liquor
found in his possession, it raises a question of fact, and it
will be reasonably presumed that he had knowledge thereof.
Jackson v. Gordon (Miss.), 80 So. 785.
Alcoholic Medicines, Extracts, Sacramental Wine.
In only a few instances have the courts had occasion
to construe provisions of state laws, expressly except-
ing certain articles. But so far as bearing on Sec. 4 of
Title II of the Federal Act, the decisions of the state
courts are digested here, without setting out again the
statutory section.
Intoxicating Medicines — Dilution by Purchaser — Ex-
cessive Use by Him. — The lawful act of compounding
essence of Jamaica ginger in form which could not be used
as a beverage, and selling it in due course of business, could
not be rendered unlawful by the conduct of a purchaser in
140 TITLE II— SEC. 3 OF ACT
diluting the medicine and taking it in excessive quantities
and with excessive frequency whether as a medicine or as a
beverage.
Humphrey v. State (Ala. App.), 77 So. 82.
Sale as Medicine and as Beverage Distinguished. —
Where a person has the right to sell Jamaica ginger, the
same being a medicine for medicinal purposes; he has no
right to sell Jamaica ginger, a spirituous liquor, even if it
be a medicine, to be used as a beverage.
State v. Hastings, 2 Boyce's (25 Del.), 482, 81 Atl. 403.
Absolute Prohibition Knows No Unexpressed Ex-
ceptions.— Where the constitution forbids the sale and dis-
position of ardent spirits, ale, beer, and wine and intoxicat-
ing liquor of any kind to any person, as in the state of Ari-
zona (Article 23, constitution), and it contains no excep-
tions, as that it may be prescribed and sold as a medicine,
or for medicinal purposes, neither doctors nor druggists
nor any one else may sell or dispose of any of the named
or described liquors as such, or when compounded as a
medicine. It is not a regulatory provision, but one of out-
lawry. It is one of suppression and not one of supervision.
The fact that ardent spirits are mixed with other ingredi-
ents and, as thus compounded, labeled Jamaica ginger and
sometimes used for medicinal purposes, does not change the
situation.
Cooper v. State, 19 Ariz. 486, 172 Pac. 276, citing
Brown v. State, 17 Ariz. 314, 152 Pac. 578.
Troutner v. State, 17 Ariz. 506, 154 Pac. 1048, L. R.
A. 1916D, 262.
Hall v. State (Ariz.), 165 Pac. 300.
"Quart a Month" Law Construed. — Under a state
law permitting receipt of only one quart of distilled liquor
"not oftener than once a month," one who received a quart
November 29th, and another December 23rd following
would be guilty, in view of Code 1904, § 5, providing that,
unless otherwise expressed, the word "month" shall mean
calendar month.
Cochran v. Commonwealth, 122 Va. 801, 94 S. E. 329.
TITLE II— SEC. 3 OP ACT 141
Sale of Flavoring Extracts for Beverages. — A grocer
who sold for beverage purposes flavoring extracts contain-
ing from 30 to 90 per cent alcohol, claimed to be legitimate
food products, violated the law though the sales were in
quantities less than required to produce drunkenness.
Wine for Sacramental Purposes.
Receiving "Altar Wine" from Carrier. — A state law
prohibiting the receiving of liquors, the sale of which is
prohibited by the laws of this state, from a common car-
rier, does not make it an offense for a Roman Catholic
priest to receive altar wine to be used solely for sacramental
purposes in divine worship.
De Hasque v. Atchison, etc., R. Co. (Okla.), 173
Pac. 73.
The provisions of section 46, art. 25, of the Constitution
of Oklahoma (section 410, Wms. Anno.), prohibiting the
sale and transportation of intoxicating liquors, does not ap-
ply to altar wine to be used solely for sacramental purposes
in divine worship, although such wine be capable of use as
a beverage, and, if drunk in sufficient quantities, will pro-
duce intoxication.
De Hasque v. Atchison, etc., R. Co. (Okla.), 173 Pac.
73.
TITLE II— SECS. 7-8
Physicians' Prescriptions— Permits — Physical Examina-
tion— Medical Necessity — Limit of Amounts — Cancel-
lation by Pharmacist — Records of Pharmacists and
Physicians.
SEC. 7. No one but a physician holding a permit to
prescribe liquor shall issue any prescription for liquor.
And no physician shall prescribe liquor unless after
careful physical examination of the person for whose
use such prescription is sought, or if such examination
is found impracticable, then upon the best information
obtainable, he in good faith believes that the use of such
liquor as a medicine by such person is necessary and
will afford relief to him from some known ailment.
Not more than a pint of spirituous liquor to be taken in-
ternally shall be prescribed for use by the same person
within any period of ten days and no prescription shall
be filled more than once. Any pharmacist filling a pre-
scription shall at the time indorse upon it over his own
signature the word "canceled," together with the date
when the liquor was delivered, and then make the same
a part of the record that he is required to keep as here-
in provided.
Every physician who issues a prescription for liquor
shall keep a record, alphabetically arranged in a book
prescribed by the commissioner, which shall show the
date of issue, amount prescribed, to whom issued, the
purpose or ailment for which it is to be used and direc-
tions for use, stating the amount and frequency of the
dose.
TITLE II — Sees. 7-8 OF ACT 143
Prescription Blanks— Form — Furnished by Commissioner
—Return of Stubs and Unused Blanks— Emergency
Cases — Record and Report.
SEC. 8. The commissioner shall cause to be printed
blanks for the prescriptions herein required, and he
shall furnish the same, free of cost, to physicians hold-
ing permits to prescribe. The prescription blanks shall
be printed in book form and shall be numbered con-
secutively from one to one hundred, and each book shall
be given a number, and the stubs in each book shall
carry the same numbers as and be copies of the pre-
scriptions. The books containing such stubs shall be
returned to the commissioner when the prescription
blanks have been used, or sooner, if directed by the
commissioner. All unused, mutilated, or defaced blanks
shall be returned with the book. No physician shall
prescribe and no pharmacist shall fill any prescription
for liquor except on blanks so provided, except in cases
of emergency, in which event a record and report shall
be made and kept as in other cases.
Constitutionality of Provision. — The Alabama law
regulating the issuance of prescriptions for intoxicating liq-
uors, is not objectionable as interfering with the personal
liberty of a physician since it embraces all of his class; it
being competent for the Legislature, in the interest of reg-
ulating and prohibiting the liquor traffic, to pass such bill.
McAllister v. State, 156 Ala. 122, 47 So. 161.
"Nor is the Michigan law invalid because the original act,
while prohibiting liquor to be sold by merchants, permitted
it to be sold by druggists for medicinal, mechanical, or scien-
tific purpose. The contention that this was an unlawful
discrimination is answered by Kidd v. Pearson, 128 U. S. 1,
9 Sup. Ct. 6, 32 L. Ed. 346, 2 Inters. Com. Rep. 232 ; Rippey
v. Texas, 193 U. S. 504, 24 Sup. Ct. 516, 48 L. Ed. 767 ; Loyd
v. Dollison, 194 U. S. 445, 24 Sup. Ct. 703, 48 L. Ed. 1065.
Those cases show that the state may prohibit the sale of
144 TITLE II — Sees. 7-8 OF ACT
liquor absolutely or conditionally ; may prohibit the sale as
a beverage, and permit the sale for medicinal and like pur-
pose ; that it may prohibit the sale by merchants and permit
the sale by licensed druggists."
Eberle v. Michigan, 232 U. S. 700, 34 Sup. Ct. 464.
The Indiana Prohibition Law (Acts 1917, c. 4) is not un-
constitutional in giving the right to registered pharmacists
to deal in intoxicants under certain restrictions, and because
those who have liquors manufactured in the state which are
in bond may have possession, pay tax, and dispose of such
liquors outside of the state, since the "privileges and immu-
nities" section of the state Constitution (article 1, § 23), the
"class" section (article 1, § 23), and the "general law" sec-
tion (article 4, § 22), are not violated if an act is reason-
ably designed to protect the health, morals, or welfare of
the public.
Schmitt v. Cook Brewing Co. (Ind.), 120 N. E. 19, 20.
Validity of Provision — Title of Act. — Michigan Pub.
Acts 1889, No. 207, entitled "An act to prohibit the manu-
facture, sale, keeping for sale, giving away, or furnishing
of vinous, malt, brewed, fermented, spirituous or intoxicat-
ing liquors," etc., amended by Pub. Acts 1911, No. 261, with-
out altering the title to provide that any physician who pre-
scribes any intoxicating liquors for any person whom he
knows, or has good reason to believe, intends to use them
in whole or in part as a beverage, or contrary to the provi-
sions of the act, or without a diagnosis showing that liquor
is indicated, shall be guilty, is not invalid as attempting to
regulate the practice of medicine, and as subjecting physi-
cians to a penalty, without giving notice in the title.
People v. Humphrey, 194 Mich. 10, 160 N. W. 445,
446.
Revocation of Authority for Violations of Law,—
Initiative Measure No. 3 (Laws 1915, p. 6) § 8, providing,
among other things, that it shall be unlawful for a physician,
after he has been convicted a second time of a violation of
any of the provisions of the act, to thereafter write any pre-
II — SECS. 7-8 OF Aci 145
scriptions for furnishing, delivery, or sale of intoxicating
liquor, is valid.
State v. Emonds (Wash.), 182 Pac. 584.
Disqualification for Permit — Ex Post Facto Laws.
— A state law providing that a county auditor shall not is-
sue a permit to any druggist who has been convicted of
violating any of the liquor laws of the state, and requiring
applicant to state in his application that he has not been
convicted of violating any of the liquor laws, although ap-
plied so as to prohibit issuing of permits to druggists who
have violated prior laws, are not ex post facto in their na-
ture; the disqualification not being an additional punish-
ment for past offenses.
Rosenoff v. Cross, 95 Wash. 525, 164 Pac. 236.
"Pharmacist" or Druggist Defined. — The words
druggist or pharmacist, as used in a statute permitting the
sale of intoxicating liquors by druggists or pharmacists
only, mean such druggists or pharmacists as are actively
engaged in business, and the possession of an excess quan-
tity of liquor by a registered pharmacist not engaged in
business is unlawful even though acquired before such law
became effective.
State v. Martin, 92 Wash. 366, 159 Pac. 88.
"Patient" Construed. — A statute making it unlawful
for any physician to furnish any person a prescription for
any kind of intoxicating liquors except to patients of such
physician, where the patient is afflicted with some disease
and his condition is such that in the opinion of the physi-
cian, the taking of intoxicating liquors would be beneficial,
applies where a person himself seeks the advice of the
physician and states his ailments, and such person is a "pa-
tient" within the meaning of the act.
State v. Morton, 38 S. D. 504, 162 N. W. 155.
But a state law providing that it shall be unlawful for
any physician to furnish a prescription for any kind of in-
toxicating liquors to be used as a beverage or for any pur-
—10
146 TITLE II— Sees. 7-8 OF ACT
pose except for medicinal purposes in case of actual sick-
ness, applies only to case where the application for the
prescription is made by some one other than the person
alleged to be ill.
State v. Morton, 38 S. D. 504, 162 N. W. 155.
Sale by Physician Not a Druggist. — Where a physi-
cian who was not a druggist or a registered pharmacist and
had not filed bond as such, sold intoxicating liquors in local
option territory, he was guilty of violating the law, though
the liquor was needed, intended and used for medicinal
purposes.
People v. Bell, 170 Mich. 675, 137 N. W. 107.
By Person Not Authorized to Sell Medicine. — It is
no defense in a prosecution for unlawfully selling spirit-
uous liquor, that the liquor was sold as a medicine, where
accused was not authorized to sell medicine.
State v. Buckman, 2 Boyce's (25 Del.) 591, 83 Atl. 938.
Prosecution of Druggist. — A druggist who makes a
sale of intoxicating liquors not in compliance with the terms
of the exception in his favor to the general prohibition
against sales without a state license, may be prosecuted un-
der the ordinary and general indictment for selling with-
out a state license.
State v. Wills, 73 W. Va. 446, 80 S. E. 783.
Offense of Unlawfully Issuing Prescription Covers
Invalid Prescription. — Where a statute declares that any
physician who shall make any prescription to any person
for intoxicating liquors to be used other than for medicinal
purposes shall be deemed guilty of a misdemeanor, and
provides the character of prescription which will protect
a druggist in making sales of intoxicants, a physician who
unlawfully issued a prescription for intoxicating liquor
though he wrote the prescription in such a manner that
the druggist who filled it was not protected, is neverthe-
less guilty; the word prescription meaning a direction of
remedy or remedies for a disease and the manner of using
TITLE II— Sees. 7-8 OF ACT 147
them, and not necessarily a valid prescription which would
protect the druggist who filled it.
State v. Nicolay (Mo. App.), 184 S. W. 1183.
Good Faith Essential. — A person selling spirituous
liquor as medicine must make the sale in good faith as such
and he must use reasonable care and prudence to ascertain
for what purpose it is to be used.
State v. Hastings, 2 Boyce's (25 Del.) 482, 81 Atl. 403.
The question of good faith enters into every sale of al-
cohol by a registered druggist or pharmacist, notwithstand-
ing the formal sufficiency of his record, the record of sales
not being conclusive under a statute providing that it shall
be unlawful to sell intoxicating liquors except as provided,
and requiring druggist to keep a "true" and "exact" record
of sales.
State v. Holland, 99 Wash. 645, 170 Pac. 332.
Good Faith of the Essence. — In prosecution of physi-
cian for furnishing prescription for intoxicating liquors,
the essence is whether or not a physician acted in good
faith in giving the prescription to his patient.
State v. Morton, 38 S. D. 504, 162 N. W. 155.
Physician Cannot Keep for Sale or Engage in Traf-
fic.— Though a physician is entitled to keep intoxicating
liquors on his premises for use in his practice, he does not
have the right to keep liquors for sale and engage in that
traffic.
State v. Chamberlain, 180 la. 685, 163 N. W. 428, 429.
Sale of Liquor in Stock with Business. — If a drug-
gist, in the legitimate pursuit of his business, had a right
to purchase from the dispensary such liquors as were
needed in compounding medicines, to keep them as a part
of his stock of drugs, and when so compounded in good
faith, to sell them without liability; it necessarily follows
that, if having them, he desires to sell out his entire busi-
ness to another, he might do so without violating the law;
148 TITLE II— Sees. 7-8 OF ACT
and the mere fact that such liquors were a part of the stock
of goods for which the note was given did not render the
note illegal and void.
Long v. Holley, 177 Ala. 508, 58 So. 264.
Necessity for Prescription in All Cases. — A licensed
druggist cannot sell intoxicating liquor to a practicing phy-
sician, except upon the written prescription of a practicing
physician in good standing in his profession and not of in-
temperate habits.
State v. Davis, 68 W. Va. 142, 69 S. E. 639, Ann. Cas.
1912A, 996, 32 L. R. A., N. S., 501.
State v. Tullos, 135 La. 640, 65 So. 870.
What Prescription Should Contain. — In West Vir-
ginia a prescription must state substantially the following,
viz. : (1) The name of the person for whom prescribed; (2)
the kind and quantity of liquor; (3) that it is absolutely
necessary as a medicine for such person ; and that it is not
to be used as a beverage.
State v. Davis, 68 W. Va. 142, 69 S. E. 639, Ann Cas.
1912A, 996, 32 L. R. A., N. S., 501.
A written order addressed to a licensed druggist and
signed by a practicing physician, in the following words,
viz. "Send me OJ spts. whisky and oblige. 12-12-09" — is
not a lawful prescription for intoxicating liquor, and a sale
made thereon is unlawful.
State v. Davis, 68 W. Va. 142, 69 S. E. 639, Ann. Cas.
1912A, 9%, 32 L. R. A., N. S., 501.
Failure to Attest Prescription.— Where a druggist in
making sales of liquors under permits, omitted to attest two
of them, as required by law, the sales were thereby rendered
illegal, though made in good faith, and though the permit
holder falsely tested at the date shown thereon as required
by law, and hence such sales rendered defendant's business
subject to injunction as a liquor nuisance.
Wachal v. Davis, 145 N. W. 867.
Failure to Take Affidavit of Purchaser. — A druggist
who keeps alcohol for no other purpose than for medicinal
TITLE II— Sees. 7-8 OF ACT 149
and external uses, and in selling it on a prescription and for
medicinal purposes, has failed to take the required affidavit
from the purchaser, may be guilty of violating the statute,
and may have committed a crime, but he has not committed
the specific crime of keeping intoxicating liquors for sale
as a beverage.
State i>. Lesh, 27 N. D. 165, 145 N. W. 829.
False Statement by Purchaser. — A druggist who has
complied with statute in making sale of alcohol commits
no offense against the law because person to whom he sold
it made false statement in violation of statute for purpose
of procuring it.
State v. McCasky, 97 Wash. 401, 166 Pac. 1163.
Identification of Prescription. — Where, on the trial
of a physician for prescribing intoxicating liquors with in-
tent to evade the prohibition law, the testimony identified a
prescription as one that the physician had given to prosecut-
ing witness in a fictitious name, the prescription was prop-
erly received in evidence, though there was no allegation
in the information of a prescription in the fictitious name.
State v. Terry, 128 La. 680, 55 So. 15.
Production of Prescription in Evidence. — A phy-
sician on trial for prescribing intoxicating liquors with in-
tent to evade the prohibition law may not complain of the
court's refusal to require the production of the prescrip-
tions relied on by the state to establish its case.
State v. Terry, 128 La. 680, 55 So. 15.
Written Prescriptions Not Privileged. — The written
prescriptions of practicing physicians on which a licensed
druggist has made sales of intoxicating liquors, and which
he has preserved in his possession, as the statute directs,
are not his private papers and documents within the mean-
ing of the constitutional guaranty against compulsory self-
crimination.
State v. Davis, 68 W. Va. 142, 69 S. E. 639, Ann. Cas.
1912A, 996, 32 L. R. A., N. S., 501.
150 TITLE II— Sees. 7-8 OF ACT
Such prescriptions are quasi public documents and the
constitutional privilege is not violated by compelling a drug-
gist who stands for unlawfully selling spirituous liquors,
to produce them in court in order that they may be used
as evidence against him on his trial.
State v. Davis, 68 W. Va. 142, 69 S. E. 639, Ann. Cas.
1912A, 996, 32 L. R. A., N. S., 501.
Sale to Be Drunk on Premises as Beverage. — Where
the law provides that it shall be unlawful for any registered
pharmacist to sell or give away any intoxicating liquor
whatever to be used as a beverage or drank on the prem-
ises, and that no registered pharmacist who shall allow in-
toxicating liquors to be drank on the premises or in any
room adjoining the premises, the selling or giving of in-
toxicating liquor to be drank as a beverage anywhere by a
registered pharmacist, is unlawful and also the selling or
giving of such liquors to be drank on the premises as a
beverage or otherwise.
State v. Julius, 29 S. D. 638, 137 N. W. 590.
Whisky Lawfully Purchased on Prescription May
Be Carried Away. — One who secures whisky from a drug-
gist upon a lawful prescription may carry it on his person
for a reasonable time and until in the natural course of
events and conveniently he reaches his private residence,
notwithstanding a provision prohibiting keeping liquor in
any place except private residences. Where accused se-
cured liquor on physician's prescription, his keeping it on
his person from 6 o'clock in the evening until 8 o'clock did
not exceed a reasonable time, although he had it on his per-
son in a temperance bar in a hotel in which he had his room.
People v. Harris (Mich.), 168 N. W. 447.
Law Allowing Shipment to Physician Does Not Al-
low Sale by Him.— A provision excepting from the pro-
hibition law the shipment or delivery to physicians of liq-
uors in unbroken packages not exceeding five gallons at any
one time, does not permit liquor to be sold by physicians.
Van Winkle v. State, 4 Boyce's (27 Del.) 578, 91 Atl.
385.
TITLE II— SECS. 7-8 OF ACT 151
Unlawful Seizure— Return.— Where a druggist ob-
tained liquors to be sold in compliance with the law, and
such liquors were unlawfully seized, he had a right to their
return, though he had in the meantime sold his drug busi-
ness.
State v. Snell, 99 Wash. 195, 169 Pac. 320.
Reclaiming Property Seized.— Under a law regulat-
ing the sale and use of intoxicating liquor, a registered
pharmacist not actually engaged in business, failing to re-
claim an excess quantity of liquors seized by showing that
he intends to engage in the druggist business, cannot re-
claim them on the ground that he intends to keep them for
private consumption.
State v. Martin, 92 Wash. 366, 159 Pac. 88.
Presumption of Unlawful Sale. — When a sale of in-
toxicating liquors is proven to have been made by a li-
censed druggist, it is presumed to have been unlawfully
made, and the burden is then cast upon him to rebut such
presumption.
State v. Davis, 68 W. Va. 142, 69 S. E. 639, Ann. Cas.
1912A, 9%, 32 L. R. A., N. S., 501.
Intent to Break Law Not Essential. — The law relat-
ing to the sale of intoxicants by a pharmacist being prohib-
itory and authorizing the sale only under certain conditions,
an intent to disobey the law is not essential to violation,
and a pharmacist who sells intoxicants is bound at his peril
to see that all provisions relating to the sale are complied
with.
Milhiser v. Gandrup (la.), 146 N. W. 843.
See also, Cooper v. State, 19 Ariz. 486, 172 Pac. 276.
Necessity That Pharmacist Be Licensed by State.
—Two partners engaged in the drug business neither of
whom possessed a pharmacist's license, and who had no li-
censed pharmacist in their employ, were not druggists with-
in the statute, and had no right to sell whisky on a prescrip-
tion, or without it.
State v. O'Kelley, 258 Mo. 345, 167 S. W. 980, 52 L.
R. A., N. S., 860n.
See ante, Sec. 6.
152 TITLE II— Sees. 7-8 OF ACT
Assigned License. — No assignment of a druggist's li-
cense will protect the assignee thereof in making sale of
spirituous liquors unless first assented to on proper appli-
cation by the authorities, authorized to grant the original
license. These statutes are mandatory and strict compli-
ance therewith is required.
State v. Ross, 70 W. Va. 549, 74 S. E. 670, 39 L. R. A.,
N. S., 814n.
Expired Permit Void. — Under a law providing that
druggists desiring to ship intoxicating liquors into the state
shall first secure a permit therefor which shall be void 30
days from the date of issue, a permit to a druggist to ship
intoxicating liquors into the state was absolutely void after
30 days and liquor was contraband, although permit was
good when shipment started.
State v. Great Northern R. Co., 101 Wash. 464, 172
Pac. 546.
Destroying Character of Intoxicating Liquor. — Un-
der a statute, providing that druggists holding permits may
sell and dispense intoxicating liquors, but forbidding the
sale of any preparation or compound under any name,
form, or device which may be used as a beverage and which
is intoxicating in its character, if the character of an in-
toxicating liquor is so destroyed that it could not be used
for a beverage, and it becomes in fact a medicine to be used
for disease and of such a character that it could not be used
as an intoxicating drink, its sale would not be an offense.
Berner v. McHenry, 169 la. 483, 151 N. W. 450.
Frequency of Applications for Prescriptions. — In a
prosecution of a physician for having prescribed whisky
with good reason to believe that the patient intended to use
it as a beverage, it was competent to prove, not only the
frequency of the applications for prescriptions made by the
patient, but the ease with which another had, by telephone,
secured a prescription for a like amount of liquor, which he
directed be given the first patient.
People v. Humphrey, 194 Mich. 10, 160 N. W. 445,
446.
TITLE II— Sees. 7-8 OF ACT 153
Liability of Partner for Illegal Sale by Copartner.
— A member of a partnership, which is engaged in the drug
business, although neither of the partners nor any of their
employees are licensed pharmacists, is liable for a sale of
intoxicating liquor made by his copartner, although he was
not present at the time.
State v. O'Kelley, 258 Mo. 345, 167 S. W. 980, 52 L.
R. A., N. S., 860n.
Search Warrant against Druggist. — That persons ac-
cused of illegal sales of intoxicating liquors are druggists,
does not exempt them from operation of a law providing
for issuance of search warrant on affidavit of probable
cause to believe illegal sales are being made.
State v. Gordon (Wash.), 163 Pac. 772.
TITLE II— SEC. 13
Carriers — Records of Shipments— Permit of Consignee-
Record of Delivery — Oath of Consignee— Identifica-
tion—Name and Address.
SEC. 13. It shall be the duty of every carrier to make
a record at the place of shipment of the receipt of any
liquor transported, and he shall deliver liquor only to
persons who present to the carrier a verified copy of a
permit to purchase, which shall be made a part of the
carrier's permanent record at the office from which de-
livery is made.
The agent of the common carrier is hereby authorized
to administer the oath to the consignee in verification
of the copy of the permit presented, who, if not person-
ally known to the agent, shall be identified before the
delivery of the liquor to him. The name and address of
the person identifying the consignee shall be included in
the record.
Validity of Requirement. — A provision requiring a rec-
ord to be kept of the receipt and delivery of shipments of
intoxicating liquor to be open for inspection by any officer
or citizen during business hours does not violate Const. U.
S. Amend. 14, as that amendment does not impair the exer-
cise of the police power.
State v. Seaboard Air Line R. Co., 169 N. C. 295, 84
S. E. 283. '
Care of Records. — Requiring a carrier to keep a book
showing deliveries of intoxicating liquors, though requiring
ordinary care to preserve record, does not require that rec-
ord be kept in burglar or fireproof safe.
Commonwealth v. Southern Exp. Co., 182 Ky. 132, 206
S. W. 167.
TITLE II— SEC. 13 OF ACT 155
Liability of Carrier for Default of Agent.— Under a
state statute requiring carriers to keep a book showing all
receipts and deliveries of liquor, with various particulars,
open to inspection, and declaring "that any railroad, ex-
press or other transportation company, or any employee
or agent who fails," neglects, or refuses to comply with the
provision of the section or who makes or causes to be made
any false entry in such book, shall be deemed guilty of mis-
demeanor, an express company which provided an appro-
priate book for the insertion of such entries, but its local
agent delivered intoxicating liquors without requiring the
consignee to sign his name, it was held, that, as the purpose
of the statute is to provide a check upon the shipment of
intoxicating liquors into territory where their sale as a bev-
erage is prohibited, the express company cannot avoid lia-
bility on the ground that its duty was fulfilled when it pro-
vided the book for the required entries and signature of
the consignee, and that the offense, if any, was committed
only by its agent; the use of the disjunctive "or" in the
penal provision not showing any intent to relieve transpor-
tation companies, and cast all burdens on their agents.
Commonwealth v. Adams Exp., 179 Ky. 394, 200 S. W.
648.
Delivery in Good Faith after Proper Investigation.
— A carrier who in good faith, and after proper investiga-
tion, delivers liquor to a consignee without any knowledge
that the same is intended for illegal use in the state, is not
guilty.
Southern Exp. Co. v. State, 188 Ala. 454, 66 So. 115.
"When alcohol is shipped from a point out of this state
to a point in the state and delivered by a common carrier
to a person in this state, the duty devolves upon the car-
rier to use reasonable care to learn for what purpose it is
to be used, and it can only deliver the alcohol when in the
exercise of such reasonable care it is convinced that the al-
cohol is to be used for strictly medicinal or mechanical pur-
poses. As stated in Adams Exp. Co. v. Commonwealth,
160 Ky. 66, 169 S. W. 603, if the express company acts
upon reasonable grounds in good faith after such investi-
gation as ordinary care requires, and is misled, it is not lia-
156 TITLE II— SEC. 13 OF ACT
ble ; otherwise it is liable. So too in the case of Southern
Exp. Co. v. State, 188 Ala. 454, 66 So. 115. In discussing
this question, the Supreme Court of Alabama said : 'If
in good faith and after proper investigation a common car-
rier of interstate commerce delivered liquors to a consignee
without any knowledge on its part that such liquors are in-
tended by the consignee for illegal use, then such carrier
cannot, we think, be held to have violated any law of this
State.' In the case of Clark Distilling Co. v. Western Mary-
land R. Co. (D. C.), 219 Fed. 333, the court held: 'Where
intoxicating liquors are offered to a carrier for transporta-
tion from Maryland into West Virginia, for the alleged
personal use of the consignee, the carrier is not bound at
his peril to make sure that the liquors are not intended to
be used contrary to the laws of such state, but is only re-
quired to act in good faith in a bona fide effort to prevent
its instrumentalities being used to aid a violation of the
law. The court said : "In this case nothing need be decided
other than that the defendant as a common carrier is bound
to receive for shipment and to transport and deliver in West
Virginia, such liquors as are intended solely for the per-
sonal use of the consignee even though the orders for them
had been solicited by letters mailed at points outside the
state. It has no right to accept for shipment, or to deliver
in West Virginia liquors which are intended by any person
interested therein to be used in any way forbidden by the
law of that state. It is not bound at its peril to make sure
that no liquor transported by it is intended to be used con-
trary to the state law. It need not create or maintain any
special staff of investigators or detectives to aid it in deter-
mining such questions. It must, however, act in good faith.
Its agent and employees who handle such shipments for it
must keep their eyes open, and must exercise common sense
to prevent it and its instrumentalities being used as aids in
violation of the law. The question of the good faith of the
express company in delivering the alcohol to Wilson was a
question of fact for the jury in this case, and the court
should have instructed the jury as above indicated." :
Quinn v. Reed, 130 Ark. 116, 197 S. W. 15.
Under an act prohibiting the delivery in prohibition ter-
ritory of interstate shipments of intoxicating liquor, where
TITLE II— SEC. 13 OF ACT 157
such liquor is intended to be used contrary to law, persons
delivering intoxicants within local option territory are
bound to exercise proper care, which is the use of such
diligence as the circumstances require to see that the liq-
uor is not used contrary to law, and only a mistake of fact
will excuse a delivery of liquors used or intended to be used
contrary to law.
Ex parte Peede, 75 Tex. Cr. App. 247, 170 S. W. 749.
Conspiracy to Effect Unlawful Delivery. — A defend-
ant, indicted with another for conspiring with employees
of a carrier to have the employees deliver intoxicants to
them under a fictitious name, may be convicted of con-
spiracy, notwithstanding delivery to the other alone.
McKnight v. United States, 164 C. C. A. 527, 252 Fed.
687.
Connecting Carrier's Agency. — "A common carrier
over whose lines a shipment of intoxicating liquors has not
been consigned, but merely in cars it has been consigned
over other lines to a destination point, cannot act as the
agent of the consignee in receipting for and accepting de-
livery of the shipment."
Hudgens v. Southern Exp. Co., 74 W. Va. 760, 83 S.
E. 63.
See also, as to transportation of liquor as a crime, ante
under Sec. 3.
TITLE II— SEC. 14
Notice to Carrier of Nature of Shipment — Information
Required on Outside of Package.
SEC. 14. It shall be unlawful for a person to use or
induce any carrier, or any agent or employee thereof, to
carry or ship any package or receptacle containing liq-
uor without notifying the carrier of the true nature and
character of the shipment. No carrier shall transport
nor shall any person receive liquor from a carrier un-
less there appears on the outside of the package con-
taining such liquor the following information:
Name and address of the consignor or seller, name
and address of the consignee, kind and quantity of liq-
uor contained therein, and number of the permit to pur-
chase or ship the same, together with the name and ad-
dress of the person using the permit.
"Consignee" Construed. — "Consignee." in a statute
declaring it an offense to ship into a state a package of liq-
uors unless labeled to show the name of the consignee, not
being defined, must be assumed to be used in its ordinary
commercial and legal significance, and so to mean the one
to whom the carrier may lawfully make delivery in accord-
ance with its contract of carriage.
Great Northern Pac. S. S. Co. v. Rainier Brewing Co.
(C. C. A.), 255 Fed. 762.
Any Evasion Illegal. — Under a law requiring interstate
shipments of intoxicating liquor to be so labeled as to
plainly show the nature of their contents, any attempt to
evade the law, by failing to set forth the particulars truth-
fully, or to disclose them plainly, or any attempt to cover
up with advertising matter the facts which the law requires
TITLE II— SEC. 14 OF ACT 159
the label to reveal, so as to readily catch the eye, violates
the law.
United States v. Hillsdale Distillery Co. (D C ) 242
Fed. 536.
Marks Must Be Clear and Plain. — "The act of Con-
gress says that the nature of the contents of the package
shall be plainly shown and shown on the outside cover. The
requirement is a definite one, very easily complied with. It
means that the marks must be of manifest, self-evident im-
port, and must appear at the place indicated. It clearly
excludes the idea of reference elsewhere for information,
or of a general knowledge of the trade-names or brands
adopted by particular merchants for their business, which
have not gained a place in the common vocabulary of the
country. What has been said also precludes resort to bills
of lading issued by the carrier."
Schmidt Brewing Co. v. United States (C. C. A.), 254
Fed. 695, 696.
Thus, where defendant made interstate shipments of
beer, and the only external marks indicating the nature of
the packages were the name of the defendant brewing com-
pany, the trade-name, "Select/* and a serial number, he
was guilty of violation of a provision prohibiting the in-
terstate shipment of liquors, unless the package have its
contents plainly labeled on the outside, the fact that the na-
ture of the contents might have been inferred or learned
from other sources being immaterial.
Schmidt Brewing Co. v. United States (C. C. A.), 254
Fed. 695.
Duty of Carrier to Inform Itself of Purpose of Con-
signee.— Under federal Penal Code 240 (Acts March 4,
1910, c. 321, 35 Stat. 1137 U. S. Comp. St. Supp. 1911, p.
1662) prohibiting interstate shipments of intoxicating liq-
uors unless each package containing the same is so labeled
as to plainly show the name of the consignee, the nature of
the contents, and the quantity, a carrier of interstate com-
merce is apprised of the character of the shipment when
intoxicating liquor is received by it, and under the Webb
law (Act March 1, 1913, c. 90, 37 Stat. 699), before it de-
160 TITLE II— SEC. 14 OF ACT
livers the liquor to the consignee in the state it should in-
form itself of the purpose of the consignee, and where it
has liquor in its possession for delivery for a person in-
tending to use it in violation of the law, or actually deliver-
ing it in the state to such person, it is presumptively guilty
of a violation of the law of the state.
Southern Exp. Co. v. State, 188 Ala. 454, 66 So. 115.
Right of Carrier to Rely on Absence of Label. — Un-
less otherwise advised, either of the fact that an unlabeled
package contains liquors within the description of the stat-
ute, or of circumstances reasonably calculated to arouse
suspicion or inquiry with respect to that fact, the carrier
to whom a shipment for transportation and delivery in Ala-
bama is offered without the state, may rely on the absence
from a package of the label required by such section as
negativing the presence therein of forbidden liquors in re-
ceptacles of prohibited capacities.
State v. Southern Exp. Co. (Ala.), 75 So. 343.
And a carrier will not be held to receive at peril of of-
fending the prohibitory and regulatory laws of Alabama
consignments of intoxicating liquor destined for transpor-
tation into and for delivery in Alabama, where they were
free from cause of suspicion that they contained prohibited
liquors in receptacles of forbidden capacities.
State v. Southern Exp. Co. (Ala.), 75 So. 343.
Failure to Inspect — Statute Forbidding Opening.—
An Act prohibiting the delivering carrier from opening on
the premises in Alabama an original package, does not ex-
cuse an interstate carrier's failure to inspect liquors ten-
dered for shipment from without the state to a point with-
in the state; the operation of such section being restricted
to its purpose to prevent the apportionment of or distribu-
tion of the contents of a shipment of liquor at destination
on the premises of the carrier.
State v. Southern Exp. Co. (Ala.), 75 So. 343.
See also ante, under Sec. 3, Title II.
TITLE II— SEC. 15
False Statements of Liquor Shipments— Receipt, Ship-
ment or Delivery Unlawful.
SEC. 15. It shall be unlawful for any consignee to ac-
cept or receive any package containing any liquor upon
which appears a statement known to him to be false, or
for any carrier or other person to consign, ship, trans-
port, or deliver any such package, knowing such state-
ment to be false.
Application to Carrier.— The Ky. St. 2569b, subd. 1,
prohibiting in dry territory delivery of intoxicating liquor
to any person intending to sell it and subsection 2, prohibit-
ing consignment, transportation, or shipment of such liquor
or any package of intoxicating liquors upon which appears a
false statement, was held applicable to carrier as well as to
consignor or consignee.
American Exp. Co. v. Commonwealth, 171 Ky. 1, 186
S. W. 887.
But the carrier is liable only if its agent knew the package
to be falsely marked or the purpose for which such liquor
was to be used, and is not required to use reasonable care
to ascertain the purpose for which such liquors are to be
used.
American Exp. Co. v. Commonwealth, 171 Ky. 1, 186
S. W. 887.
See also ante, under Sec. 3, Title II.
—11
TITLE II— SEC. 17
Advertisements Unlawful — Signs and Bill Boards — Ex-
ceptions— Price Lists, etc. — Advertisements of Alco-
hol— Newspapers Published Abroad.
SEC. 17. It shall be unlawful to advertise anywhere,
or by any means or method, liquor, or the manufacture,
sale, keeping for sale or furnishing of the same, or
where, how, from whom, or at what price the same may
be obtained. No one shall permit any sign or billboard
containing such advertisement to remain upon one's
premises. But nothing herein shall prohibit manufac-
turers and wholesale druggists holding permits to sell
liquor from furnishing price lists, with description of
liquor for sale, to persons permitted to purchase liquor,
or from advertising alcohol in business publications or
trade journals circulating generally among manufac-
turers of lawful alcoholic perfumes, toilet preparations,
flavoring extracts, medicinal preparations, and like ar-
ticles: Provided, however, That nothing in this Act or
in the Act making appropriations for the Post Office De-
partment, approved March 3, 1917 (Thirty-ninth Stat-
utes at Large, Part 1, page 1058, et seq.), shall apply to
newspapers published in foreign countries when mailed
to this country.
Authority of State to Prohibit. — As the state has au-
thority under its police power to regulate the sale of intox-
icants, and as contracts relating to such sales are subject
to such power, a statute prohibiting newspapers and maga-
zines in the state from advertising for the sale of intoxi-
cants, does not work an impairment of contracts, even
though publishers already had contracts for the publication
of liquor advertisement, such contracts being also subject
to the police power.
Advertiser Co. v. State, 193 Ala. 418, 69 So. 501.
TITLE II— SEC. 17 OF ACT 163
The power to prohibit or regulate the sale of intoxicat-
ing liquors includes also the power to prohibit solicitations
for such sales by agent or advertisement.
Black v. Delaye, 193 Ala. 500, 68 So. 993.
See State v. Ross (N. D.), 170 N. W. 121.
Circulation by Mail. — "A liquor dealer residing and
doing business in another state, who, by the agency of the
United States mails sends into one state unsolicited and
there circulates or distributes to prospective customers
price lists, circulars and order blanks advertising his liq-
uors for sale and which he proposes to ship into this state
to them, and which advertising matter by such agency is
actually delivered to a citizen of this state, is guilty of a
violation of section 8, chapter 13 Acts of the legislature of
1913 known as the Yost Law (Code 1913, c. 32A. 8. § 287)
and so construed, said act, by virtue of the acts of con-
gress known as the Wilson act (Act Aug. 8, 1890, c. 728
Stat. 313, U. S. Comp. St. 1913, 8738) and the Webb-
Kenyon Act (Act March 1, 1913, c. 90, 37 Stat. 699, U.
S. Comp. St. 8739) does not infringe the commerce clause
of section 8 of article 1 of the Federal constitution. Nor
does the provision of section 8 of said act 1913, so con-
strued and applied, violate the 'privileges and immunities'
clause of the Fourteenth Amendment to the Federal consti-
tution."
State v. Davis, 77 W. Va. 271, 87 S. E. 262, L. R. A.
1917C, 639.
Newspapers Published without State. — The law pro-
hibiting the sale of newspapers and magazines containing
liquor advertisements, does not, when applied to a news-
paper published out of the state, and containing an adver-
tisement of liquor manufactured out of the state and to be
shipped into the state to individuals ordering it, violate
Const. U. S. art. 1, 8, vesting in Congress the exclusive
power to regulate interstate commerce.
Black v. Delaye, 193 Ala. 500, 68 So. 993.
See also, State v. Davis, 77 W. Va. 271, 87 S. W. 262,
L. R. A. 191 7C, 639, set out supra.
164 TITLE; II— SEC. 17 OF ACT
Scope of Prohibition. — The Georgia statute (Rev. St.
1903, c. 29, 45), forbidding the publication of advertise-
ments of the sale or keeping for sale of intoxicating liq-
uors, includes advertisements of intoxicating liquors sold
or kept for sale without the state.
State v. Bass Pub. Co., 104 Me. 288, 71 Atl. 894, 20
L. R. A., N. S., 495.
Advertisement Must Give Information Where to Be
Obtained. — It is not a violation of a statute prohibiting
the advertisement of intoxicating liquors, or of any per-
son from whom, or the price at which, or the method by
which, intoxicating liquors may be obtained, for a news-
paper to publish an advertisement signed by the United
States Brewers' Association, setting forth that the Federal
government had recognized the distinction between beer and
spirituous liquors, and attempting to popularize beers and
light wines as temperance beverages at the expense of dis-
tilled liquors, the advertisement not giving any information
as to where beer or light wines could be obtained.
State v. Advertiser Co. (Ala.), 77 So. 758.
Giving Away Samples in Connection with Circulars,
etc. — Where an agent of a nonresident dealer in intoxi-
cating liquors distributes circulars and price lists of such
liquors, and in connection therewith, personally gives away
samples of such intoxicating liquors in this state, he is
guilty of soliciting.
Kirkpatrick v. State, 12 Ga. App. 252, 77 S. E. 104.
TITLE II— SEC. 19
Soliciting or Receiving Orders — Giving Information as to
Obtaining Liquor.
SEC. 19. No person shall solicit or receive, nor know-
ingly permit his employee to solicit or receive, from any
person any order for liquor or give any information of
how liquor may be obtained in violation of this Act.
Constitutionality. — A law which prohibits the solicit-
ing or taking of orders for the sale of intoxicating liquors
in counties where such sales are, by law, prohibited, is a
police regulation, necessary for the effective enforcement
of the State's prohibitory regulations. The act forbidding
soliciting orders for intoxicating liquor, is not affected by
the extension of the scope of its operations caused by the
passage of the general prohibition act.
Rose v. State, 4 Ga. App. 588, 62 S. E. 117.
Receiving "or" Soliciting. — Where a statute makes
the receiving of orders for spirituous liquors, as well as
the soliciting of them, an offense, and the two terms are
connected by the disjunctive "or" not the conjunctive
"and," it is not necessary that there be a soliciting, but the
receiving of them alone is a violation of the statute.
State v. Decker, 75 W. Va. 565, 84 S. E. 376.
Taking Order for Liquor— Place of Sale. — Taking
an order for liquor to be furnished from a wholesale house
located elsewhere for subsequent shipment to the party giv-
ing the order does not amount to a sale in the county, where
the order was taken.
People v. Meloche, 186 Mich. 536, 152 N. W. 918.
Solicitation by Letter. — Where the solicitation or tak-
ing orders for the sale of intoxicating liquor is forbidden,
whether the solicitation is by the seller personally, or
whether the solicitor is only an agent of the seller, to solicit
166 TITLE II— SEC. 19 OF ACT
the sale of intoxicating liquor by letter or circular is a
crime, if the letter is intended to be delivered and is in fact
delivered as intended. The term solicit personally includes
any act done by the seller himself which may tend to effect
a sale, as contrasted with any like act by an agent of the
seller, tending to a similar result. Whether a solicitation
is personal or by an agent, is not dependent upon the per-
sonal presence of the solicitor, but upon whether the means
of solicitation, whether oral or in writing, are used by an
agent or by the principal himself. The solicitation of or-
ders by mail for the sale of intoxicating liquors is personal
solicitation if the seller himself in person writes or mails
the letter received by the prospective buyer.
Rose v. State, 4 Ga. App. 588, 62 S. E. 117.
Delivery Unnecessary. — Defendant, as agent of a firm
of liquor dealers, solicited a person to purchase one gallon
of liquor, for which he received payment in full, giving an
order on the firm of liquor dealers, setting forth the goods
sold, price paid, the mode of shipment and directing the
dealers to express the same at once. Defendant admitted
that his orders to the firm of liquor dealers were always
filled. Held, to constitute a sale of liquor, without evidence
of a delivery of the same.
State v. Small, 82 S. C. 93, 63 S. E. 4.
TITLE II— SEC. 21
Liquor Nuisance as Crime.
SEC. 21. Any room, house, building, boat, vehicle,
structure, or place where intoxicating liquor is manu-
factured, sold, kept, or bartered in violation of this ti-
tle, and all intoxicating liquor and property kept and
used in maintaining the same, is hereby declared to be
a common nuisance, and any person who maintains such
a common nuisance shall be guilty of a misdemeanor and
upon conviction thereof shall be fined not more than
$1,000 or be imprisoned for not more than one year, or
both. If a person has knowledge or reason to believe
that his room, house, building, boat, vehicle, structure,
or place is occupied or used for the manufacture or sale
of liquor contrary to the provision of this title, and
suffers the same to be so occupied or used, such room,
house, building, boat, vehicle, structure, or place shall
be subject to a lien for and may be sold to pay all fines
and costs assessed against the person guilty of such
nuisance for such violation, and any such lien may be
enforced by action in any court having jurisdiction.
Whoever establishes, continues, or uses any building for
the purpose of selling therein intoxicating liquor, or for
the purpose of keeping intoxicating liquor therein with in-
tent to sell the same, is guilty of keeping a liquor nuisance.
State v. Jarvis (la.), 165 N. W. 61.
As Continuing Offense.— The crime of maintaining a
liquor nuisance is a "continuing offense."
State v. Maguire, 31 Idaho 24, 169 Pac. 175.
Single Sale. — A single sale will warrant a conviction
under an information for keeping and maintaining a com-
168 TITLE II— SEC. 21 OF ACT
mon nuisance by keeping a place where intoxicating liquors
are sold as a beverage.
Scott v. State, 37 N. D. 90, 163 N. W. 813.
Time Not a Material Ingredient. — Time is not a ma-
terial ingredient of the crime of keeping and maintaining
a common nuisance contrary to the provisions of the pro-
hibition law.
State v. Webb, 36 N. D. 235, 162 N. W. 358.
Knowledge of Accused — Intent. — Proof of sale of
liquor on defendant's premises, without proof that it was
done with the knowledge, consent, acquiescence, or conni-
vance of defendant, does not establish that he kept the liq-
uor sold /with intent to sell it in violation of law.
State v. Jarvis (la.), 165 N. W. 61.
Maintenance for One Day Sufficient.— "It was not
incumbent upon the state to show that the place was used
for such unlawful purposes during the entire period named
in the indictment. Proof that the defendant kept and main-
tained a tenement for any one of such purposes during any
part of the time comprised within the days named in the
indictment would warrant a conviction. It is the nature of
the acts done, not the length of time during which they are
committed, that constitutes the offense. The case is made
out, the offense is committed, if for a single day between
those dates that place was so used. If for a single hour in
the day it was so used, for that hour it was a common nui-
sance, and whoever for that hour maintained the place was
guilty of keeping and maintaining a common nuisance."
State v. Kapicsky, 105 Me. 127, 73 Atl. 830, 23 L. R.
A., N. S., 737.
Legal Title Unnecessary — Possession and Control.
— "Upon an indictment charging maintenance of a public
nuisance by knowingly permitting unlawful sales of intox-
icating liquors in a building therein described as 'owned
and occupied' by defendant, proof of legal title by her is
not essential. Possession and control of the premises are
all the statute requires."
State v. Rogers, 80 W. Va. 680, 93 S. E. 757.
TITLE II— SEC. 21 OF ACT 169
Intoxicating Character of Liquor. — In a prosecution
for maintenance of a liquor nuisance the state must show,
either directly or by fair inference, that the liquors con-
tained some alcohol, and therefore were intoxicating, when
taken from the accused.
State v. Knapp, 177 la. 278, 158 N. W. 517.
Procurement by State Agent as Defense.— Under a
state law making it the duty of state agents to aid in the
capture and prosecution of persons committing crime or
violating the laws of the state, the fact that such an agent,
without improper solicitation, and while endeavoring to as-
certain whether defendant was violating the law, asked for
a pint of whisky and received and paid for it, was no de-
fense to prosecution for maintaining a liquor nuisance.
State v. See, 177 la. 316, 158 N. W. 667.
Immaterial Whether Lessee or Agent. — And it was
not material whether one prosecuted for maintaining a liq-
uor nuisance, and who sold intoxicating liquors to persons
acting as state agents, was renting the place or was acting
as clerk or employee for his mother.
State v. See, 177 la. 316, 158 N. W. 667.
Jurors — Challenge for Prejudice. — In a nuisance
prosecution for selling intoxicating liquor the state cannot
question prospective jurors regarding their prejudice
against the testimony of witnesses obtaining information
solely for purposes of prosecution.
State v. Hoffman (Ore.), 166 Pac. 765.
Abatement— Appeal of Search and Seizure Pro-
ceedings.— A prosecution for maintenance of a liquor nui-
sance does not abate by the pendency on appeal of search
and seizure proceedings against the same parties.
State v. Knapp, 177 la. 278, 158 N. W. 517.
Evidence and Question for Jury.
See post, "Evidence," under Section 33.
170 TITLE II— SEC. 21 OF ACT
Abatement of Nuisance. — An automobile or other ve-
hicle used in the unlawful transportation of intoxicating
liquor which is, by statute declared to be a common nui-
sance, may be abated as in the act provided.
State v. Jones-Hansen-Cadillac Co. (Neb.), 172 N.
W. 36.
See also post, under Sec. 23.
TITLE II— SEC. 23
INJUNCTION.
Nature of Proceeding — Jurisdiction and Scope.
Nuisance to Traffic in Liquor — Keeping, Carrying About
or Dealing in — Injunction— Showing as to Intention
to Continue — Fees of Officer— Forfeiture of Lease.
SEC. 23. That any person who shall, with intent to
effect a sale of liquor, by himself, his employee, servant,
or agent, for himself or any person, company, or corpo-
ration, keep or carry around on his person, or in a ve-
hicle, or other conveyance whatever, or leave in a place
for another to secure, any liquor, or who shall travel to
solicit, or solicit, or take, or accept orders for the sale,
shipment, or delivery of liquor in violation of this title
is guilty of a nuisance and may be restrained by injunc-
tion, temporary and permanent, from doing or continu-
ing to do any of said acts or things.
In such proceedings it shall not be necessary to show
any intention on the part of the accused to continue
such violations if the action is brought within sixty
days following any such violation of the law.
For removing and selling property in enforcing this
Act the officer shall be entitled to charge and receive the
same fee as the sheriff of the county would receive for
levying upon and selling property under execution, and
for closing the premises and keeping them closed a rea-
sonable sum shall be allowed by the court.
Any violation of this title upon any leased premises
by the lessee or occupant thereof shall, at the option of
the lessor, work a forfeiture of the lease.
172 TIIXE II— SEC. 23 OF ACT
Nature of Proceeding. — An action to enjoin the main-
tenance of a liquor nuisance is not criminal, but civil, and
a preponderance of evidence is sufficient to warrant an in-
junction.
State v. Cipra, 92 Kan. 591, 141 Pac. 1133.
A law which imposes a penalty upon persons unlawfully
selling or giving away intoxicating liquors, and gives the
chancery court jurisdiction concurrent with courts of law
to entertain suits for penalties and to suppress the business
as a nuisance, and to further punish the persons engaged
therein, is not a criminal statute, and does not authorize
criminal prosecutions.
State v. Marshall, 100 Miss. 626, 56 So. 729, Ann. Cas.
1914A, 434.
No Criminal Conviction Necessary. — The remedy by
action in equity to enjoin a public nuisance may be invoked
against a place for the sale of intoxicating liquors, though
there has been no criminal conviction of the keeper of the
place.
State v. Reisen, 165 Wis. 258, 161 N. W. 747, 748.
Equitable Jurisdiction. — The equitable jurisdiction of
the court to enjoin a public nuisance is not affected by the
fact that a criminal prosecution may also be instituted for
the acts which constitute the nuisance.
State v. Lyon, 83 S. C. 509, 65 S. E. 730.
Power of Chancery Court. — A constitutional provision
which declares that the chancery court shall have full
jurisdiction in all matters of equity, means that in whatever
is a matter of equity, the court's power to adjudge is full,
and that, when the court takes hold of a subject, it ought to
dispose of it fully and finally, the word "full" implying that
nothing is reserved, and, as thus construed, the provision is
broadly declaratory of the rule that, where equity has
jurisdiction for one purpose, it acquires jurisdiction for all
purposes, and a court of chancery, having statutory juris-
diction under a statute to abate a liquor nuisance, may not
TITLE II— SEC. 23 OF ACT 173
only abate nuisance, but may also render judgment for the
statutory penalties.
State v. Marshall, 100 Miss. 626, 56 So. 792, Ann. Cas.
1914A, 434.
But under the authority to abate nuisance conferred by
a state law, the injunction goes primarily against places in
which the prohibition laws are habitually violated and inci-
dentally against persons who maintain such places. Such
authority does not extend to violations of the prohibition
laws generally or in ways other than those designated in
said sections. Neither said section nor any other laws con-
fers upon courts of equity general power to govern the
state by injunction, in so far as its laws pertain to the sub-
ject of intoxicating liquors.
State v. Baltimore, etc., R. Co., 78 W. Va. 526, 89 S..
E. 288, L. R. A. 1916F, 1001.
Blanket Injunction. — A person maintaining a nuisance
by selling liquor at a certain place cannot be enjoined from
selling liquor independently of the place where nuisance ex-
ists; and hence a blanket injunction against defendants, re-
straining them from selling alcoholic liquors within the
state was properly refused.
State v. Lyon, 83 S. C. 509, 65 S. E. 730.
Statutory Authority Essential. — "In the absence of a
statute conferring it, equity has no jurisdiction to abate a
public nuisance, either civil or criminal, at the instance of
an individual or the state, not affecting or injuring the en-
joyment of property or other personal rights. Injunction
is not a remedy for the enforcement of criminal laws gen-
erally."
State v. Baltimore, etc., R. Co., 78 W. Va. 526, 89 S.
E. 288, L. R. A. 1916F, 1001.
Alton v. Salley (Mo.), 215 S. W. 241.
The general rule is that, in absence of specific statute,
injunction will not lie to abate a nuisance where the acts
complained of are an offense against the criminal laws, but
where a place or particular business is declared to be a pub-
lic nuisance, as is a liquor nuisance, by statute, such a nui-
174 TITLE II— SEC. 23 OF ACT
sance, notwithstanding it violates the criminal laws, may be
abated by injunction pursuant to the statute authorizing
a civil action to abate a public nuisance.
State v. Bossingham, 35 S. D. 355, 152 N. \V. 285.
Thus, unless made so by statute, the crime of aiding in
the delivery and distribution of intoxicating liquors is not
a nuisance, for such acts were not a nuisance at common
law.
Hathaway v. Benton, 172 la. 299, 154 N. W. 474.
And a court of chancery, at the instance of the common-
wealth, will not enjoin the use of a building for the mere
sale of intoxicating liquors on Sunday, in the absence of
the statute authorizing the action, although the sale of liq-
uor on Sunday is prohibited by law.
Commonwealth v. Ruh, 173 Ky. 771, 191 S. W. 498,
L. R. A. 1917D, 283.
And the shipment of liquor into a local option county
by a common carrier cannot be enjoined by a court of eq-
uity, regardless of the criminality of the act, where such
shipment did not result in the maintenance of a public nui-
sance, it not appearing that such shipment resulted in drunk-
enness, the remedy being to proceed under the criminal stat-
utes, for a court of equity has no jurisdiction to enjoin an
act merely because it is criminal.
State v. Chicago, etc., R. Co. (Mo. App.), 191 S. W.
1051.
Sale of Liquor Alone. — The illegal sale of intoxicating
liquor cannot be enjoined when unaccompanied by circum-
stances making a nuisance.
State v. Kirkwood Leisure Hours' Social, etc., Club
(Mo. App.), 187 S. W. 819.
See also, Alton v. Salley (Mo.), 215 S. W. 241.
Law in Force When Suit Brought Governs. — The li-
ability of one, alleged to maintain a liquor nuisance, to in-
junction, must be governed under the law as it stood when
TITLE II— SEC. 23 OF ACT 175
the suit was brought, unaffected by a statute which became
effective three months thereafter.
Civic Improv. League v. Hanson, 181 la. 327 164 N
W. 752.
Case Must Come within Statute.— Under a state stat-
ute authorizing an injunction against persons who may sell
or give away any vinous or spirituous liquors unlawfully,
defendants, who sold beer, cannot be enjoined, though the
beer contained alcohol; for beer is a malt liquor, and is
neither a vinous nor a spirituous liquor.
Collotta v. State, 110 Miss. 448, 70 So. 460.
And a manufacturing plant where only nonintoxicating
malt liquor is made and sold, is not a nuisance which may
be abated under the "blind tiger" statute which declares
that "any place spirituous, malt, or intoxicating liquors are
sold in violation of law, shall be deemed a nuisance, and the
same may be abated or enjoined as such," etc.
Howard v. Acme Brewing Co., 143 Ga. 1, 83 S. E.
1096.
Delivery Alone. — And where the statute made offenses
relating to intoxicating liquor a nuisance only when car-
ried on in or in connection with building or places, the
crime of aiding in delivering intoxicants is not a nuisance.
Nor is such crime made a nuisance by virtue of a statute
declaring that, if any common carrier or person shall trans-
port or convey intoxicating liquors without first having
been furnished with a certificate by the clerk of the court,
he shall upon conviction be fined.
Hathaway v. Benton, 127 la. 299, 193 N. W. 474.
What Constitutes a Nuisance.
The generally accepted doctrine is that the keeping of a
place where intoxicating liquors are sold contrary to law
does not constitute such place a nuisance per se that courts
of equity will abate by injunction.
Territory v. Robertson, 19 Okla. 149, 92 Pac. 144.
Joyce on Nuisance, 415.
Commonwealth v. Ruh, 173 Ky. 771, 191 S. W. 498,
L. R. A. 1917D, 283.
176 TITLE II— SEC. 23 OF ACT
And under a statute providing that all places used for
the illegal sale or keeping of intoxicants are common nui-
sances, the premises involved must have been habitually
and customarily used for the purposes mentioned.
State v. Gastonguay (Me.), 105 Atl. 402.
And the mere assembling of idle and turbulent citizens
at a given place where liquor is sold does not constitute a
public or private nuisance unless it appears that they have
been guilty of some misbehavior which is sufficient under
the law to produce such result.
State v. Dick & Bros. -Quincy Brewing Co., 270 Mo.
100, 192 S. W. 1022, L. R. A. 1917D, 1023n.
But it has been held that one who sells liquor in violation
of law and has the reputation of so doing maintains a liq-
uor nuisance.
State v. Kiefer, 172 la. 306, 151 N. W. 440.
"The sale of liquor in violation of law is a crime, but
equity will not enjoin the sale. This will be left to the
courts of law. But unlawful sales of liquor may be made
at such places and under such facts and circumstances as
to make the whole thing a public nuisance. It is then, and
only then, that equity will intervene and abate the nuisance.
But the evidence must show such surrounding circumstances
and facts as will constitute the maintenance of the place of
sale a public nuisance. Merely showing that there are vio-
lations of law in the sales by selling less than the license
to sell authorized does not make a public nuisance."
State v. Jones (Mo.), 209 S. W. 876, 877.
Clubhouse. — One is engaged in the illegal traffic in in-
toxicating liquors, in violation of the law and an injunction
will lie, where the building in which liquor is kept is not a
dwelling house, but a public place, and is used by him and
others as a clubhouse, or for distribution of the liquor, or
if the liquor is received or kept in his place of business,
though it is for their personal use.
Dutton v. Anderson (la.), 145 N. W. 321.
Places Where Persons Are "Permitted" to Resort,
etc. — The word "permit" construed in connection with a
TITLE II— SEC. 23 OF ACT 177
statute, providing that "all places where * * * persons
are permitted to resort for the purpose of drinking intoxi-
cating liquors as a beverage * * * are hereby declared
to be common nuisance," means the same as "consent," and
consent implies knowledge.
State v. Wheeler, 38 N. D. 456, 165 N. W. 574, 575.
Place Where "Intoxicating" Liquors Are Manufac-
tured, Stored, Sold, etc.— The term "intoxicating liq-
uors," as used in Nevada Prohibition Law, § 14, making
place where such liquors are manufactured, stored, sold,
etc., public nuisances, is, when said section is considered
together with sections 6 and 17, to be taken as used inter-
changeably with the word "liquors" in section 1, and dis-
trict court had jurisdiction to enjoin defendant brewing
company from manufacturing and selling "Sierra Bever-
age," although said beverage is not intoxicating.
State v. Reno Brewing Co. (Nev.), 178 Pac. 902.
Vehicle as "Place." — A vehicle moving about from
one place in the city to another while engaged in selling in-
toxicating liquors in violation of law and of the ordinance
of the city, is a place within the meaning of a statute and
city ordinance which prohibit nuisances as defined in that
statute.
Kansas City Breweries Co. v. Kansas City, 96 Kan.
731, 153 Pac. 523.
"Bootlegging." — A statute declaring that any person
who shall keep or carry around his person, or in any ve-
hicle, or leave in a place, intoxicating liquors with intent
to dispose of same, in violation of law, shall be termed a
"bootlegger," and that every bootlegger may be restrained
by injunction from doing any of the acts prohibited by law,
does not apply to the case of an expressman aiding in de-
livering and distributing intoxicating liquors ordered by
others ; for a bootlegger is one who disposes of or sells
liquor in violation of law.
Hathaway v. Benton, 172 la. 299, 154 N. W. 474.
Social Club. — Under a statute providing that the con-
ducting, maintaining, carrying on or engaging in the sale
—12
178 TITLE II— SEC. 23 of ACT
of intoxicating liquors, and all means, appliance, fixtures,
etc., are declared public nuisance, an incorporated social
club which had been in existence for 25 years with a limited
membership, and dispensed intoxicating beverages to its
members at cost of material and service without overhead
charges, as a mere incident to the main purpose of the club,
the social intercourse of its members, no person not a mem-
ber of the club, being permitted to obtain anything from the
club at his own expense, was not guilty of conducting a nui-
sance; the sale of intoxicating liquors as a business and for
profit, being the nuisance contemplated by the Legislature.
State v. Mountain City Club, 136 Tenn. (9 Thompson)
102, 188 S. W. 579.
But it has also been held that a place of resort is a nui-
sance if used by a club either to sell intoxicating liquors to
its members, or to distribute among its members intoxicat-
ing liquors owned by them in common, or to procure for
and dispense to its members intoxicating liquors which are
bought for and belong to them individually.
State v. Kapicsky, 105 Me. 127, 73 Atl. 830, 23 L. R.
A., N. S., 737.
And if a club, by its agent, purchase and stores intoxi-
cating liquor for its members and deals out in portions to
each member upon his order the liquors belonging to and
kept for him and keeps a place for that purpose, such place
is a common nuisance under the statute.
State v. Kapicsky, 105 Me. 127, 73 Atl. 830, 23 L. R.
A., N. S., 737.
Voluntary Abatement. — And where a fraternal organ-
ization periodically permits intoxicating liquors to be
brought upon its premises and permits its members to
gather there for the purpose of drinking such liquors, its
premises thereby become a nuisance which may be enjoined
and abated; but where the officers and members of such
organization are notified by the responsible public officers to
quit such practices under threat of prosecution and they do
quit in apparent good faith and remove all liquor para-
phernalia from their premises, the lodge and its property
cannot be subjected to an injunction as an existing nuisance
TITLE II— SEC. 23 OF ACT 179
in a suit commenced after offensive practices have been
definitely and permanently abandoned.
State v. Midland Aerie No. 412, Fraternal Order of
Eagles, 98 Kan. 793, 161 Pac. 903.
Clubhouse as "Place of Resort." — Where a statute
provides that all places of resort where intoxicating liquors
are kept, sold, or given away, drank, or dispensed in any
way not provided by law are common nuisances, held, that
a "place of resort" does not mean a place to which the pub-
lic generally may resort, but includes places to which resort
is had by a limited class, and hence included a clubhouse to
which members and their guests were admitted, and who
drank their own liquor there, kept in lockers which were
their own property.
State v. Cumberland Club, 112 Me. 196, 91 Atl. 911.
Injunction against Transportation Company.— Under
the Texas statute injunction will lie to restrain a railroad
from using its transportation facilities in the state for re-
ceiving, transporting, or delivering intoxicants except for
medicinal, scientific, mechanical, or sacramental purposes.
Gulf, etc., R. Co. v. State (Tex. Civ. App.), 212 S. W.
845.
Injunction against Illegal Sale of Extracts. — In-
junction lies against illegal sale of flavoring extracts by
grocer for beverage purposes, under the Iowa statute.
State v. Klein (la.), 174 N. W. 481.
Acts to Be Restrained Must Be Unlawful. — "In those
instances in which injunction lies to prevent conduct
amounting to a nuisance abatable by such remedy, it is lim-
ited to unlawful acts and is not available as a means of pre-
vention of lawful acts. Only so much of such conduct as
is unlawful can be restrained."
State v. Baltimore, etc., R. Co., 78 W. Va. 526, 89 S.
E. 288, L. R. A. 1916F, 1001.
Thus, where a club might lawfully dispense liquor to its
members and guests, the state was not entitled to restrain
180 TITLE II— SEC. 23 OF ACT
it from so dispensing the same on the ground that such was
not within its corporate powers.
Country Club v. State (Tex.), 214 S. W. 296.
Constitutionality.
A statute, making the conducting, maintaining, carrying
on, or engaging in the sale of intoxicating liquors, and all
building nuisances, subject to abatement thereunder, and
authorizing injunction restraining the continuance of such
nuisances and closing the building or place where it is con-
ducted is constitutional.
State v. Ragghianti, 129 Tenn. (2 Thompson) 560, 167
,S. W. 689.
And such a statute providing that all places in a prohi-
bition district where intoxicating liquors are sold in viola-
tion of law, etc., are common nuisances and may be abated
and enjoined, when construed to permit a temporary in-
junction closing a hotel which had been used for the un-
lawful sale of intoxicating liquors, does not deprive the
hotel keeper of his property without due process of law,
though a permanent injunction against operating the hotel
would have that effect.
State v. Kasiska, 27 Idaho 548, 150 Pac. 17.
A statute providing for the issuance of an injunction
against liquor nuisances, and authorizing the seizure and
destruction of property used in maintaining the nuisance,
is a valid exercise of the power to enact laws for seizure of
property attempted to be used for an unlawful purpose or
in an unlawful manner.
In re State, 179 Ala. 639, 60 So. 285.
Such statute gives a cumulative remedy in equity and the
power of the legislature to provide such cumulative equi-
table remedy cannot be successfully questioned. It was in-
voked, and, sub silentia, sanctioned in Marvin v. Larson,
153 Wis. 488, 140 N. W. 285.
State v. Stoughton Club, 163 Wis. 362, 158 N. W. 93.
Essential Elements.
It is essential to an injunction to restrain a nuisance that
TITLE II— SEC. 23 OF ACT 181
the nuisance should exist at the filing of the petition, but it
is not essential that the nuisance should continue up to the
final hearing; and while the abandonment of a nuisance in
good faith before the final hearing should have weight with
the court in the .exercise of its discretion, a mere moving
to other quarters after a preliminary restraining order, and
on the eve of a final hearing, with nothing to show a com-
plete and bona fide abandonment of the design to violate
the law, is not sufficient to stay injunction.
State v. Lyon, 83 S. C. 509, 65 S. E. 730.
Showing of Special Injury.— A statute authorizing in-
junctions restraining the continuance of a nuisance consist-
ing of the carrying on of the sale of intoxicating liquors on
a bill filed by citizens and freeholders or by the attorney-
general or district attorney, changes, with respect to the
nuisance to which it relates, the rule that parties seeking to
enjoin a nuisance must show special injury.
State v. Ragghianti, 129 Tenn. (2 Thompson) 560, 167
S. W. 689.
Good Faith Immaterial. — Where one accused of main-
taining a liquor nuisance had no permit, and any sale by
him to any person under any circumstances was unlawful,
his good faith or reasonable effort to avoid imposition can-
not affect the question of his unlawful sales.
Fisher v. Skoglund, 155 la. 440, 136 N. W. 231.
Procedure.
Notice and Its Necessity. — Assuming that under a
statute relating to injunction against nuisance consisting of
the conducting, maintaining or engaging in the sale of in-
toxicating liquors, a temporary injunction should not have
been issued without notice to the defendant, an injunction
issued without notice was merely erroneous, as a matter of
procedure, and was not void, or in excess of jurisdiction,
and a violation thereof was punishable as a contempt.
State v. Ragghianti, 129 Tenn. (2 Thompson) 560, 167
S. W. 689.
Who May Prosecute. — Under a state statute, author-
izing a citizen of the county to institute and maintain a
182 TITLE II— SEC. 23 OF ACT
suit to enjoin a liquor nuisance, an action instituted and
maintained by a citizen of the county will not be abated
merely because his attorney employed detectives, who were
paid by Anti-Saloon League not incorporated in the county,
to obtain evidence for the prosecution, and the attorney, a
nonresident, received the fees, notwithstanding section
3459, provided that action must be prosecuted by the real
party in interest, except where the party is expressly au-
thorized by statute to sue.
Reusch v. Loserth, 158 la. 227, 139 N. W. 454.
Trial by Jury. — A constitutional provision for trial by
jury is not violated by a law which imposes a penalty for
the illegal sale of liquor, and gives the chancery court con-
current jurisdiction of suits for penalties and power to
suppress as a nuisance any place of business where the
statute is violated, and to punish and restrain the violators
thereof, since a jury trial therein is no more a matter of
right than in any other chancery case, and since the chan-
cellor is empowered by law to award a jury trial when
needed.
State v. Marshall, 100 Miss. 626, 56 So. 792, Ann. Cas.
1914A, 434.
Persons dealing in intoxicating liquors have no vested
right in a jury trial in order to determine whether or not
their place of business is a public nuisance. For such pur-
pose an action in equity constitutes due process of law.
State v. Stoughton Club, 163 Wis. 362, 158 N. W. 93.
Petition. — In an action to abate a liquor nuisance, a
cause of action was stated in a petition which alleged that
at the place described a nuisance, as defined in the statute,
was maintained with the knowledge, permission and con-
sent of the defendants, who owned the property.
State v. Glass, 99 Kan. 159, 160 Pac. 1145.
Where a bill for injunction against a liquor nuisance al-
leged that the solicitor was informed and had probable
cause for believing and did believe that the accused had in
his possession, or operated a room or place of business,
wherein he kept for sale and sold prohibited liquors; that
TITLE II— SEC. 23 OF ACT 183
he had within the past 12 months offered and sold quanti-
ties of said liquors and allowed some of it to be drunk on
the premises, creating and maintaining a common liquor nui-
sance in violation of law, and that the accused was not a
druggist and did not keep a drug store at his place of busi-
ness, and that his place of business was not exclusively
used for a dwelling house, it averred no facts and was
insufficient and could not be supported by the rule that a
bill will be given every reasonable intendment.
Woodward v. State, 173 Ala. 7, 55 So. 506.
Alleging Details of Violation of Law.— A petition in
a suit to enjoin a liquor nuisance, which alleges that de-
fendant occupied the premises described, and owned and
kept thereon intoxicating liquors with intent to sell the
same as a beverage in violation of law, is sufficiently spe-
cific as against a motion to require averments stating spe-
cifically how, and in what manner, if any, the provisions of
the mulct law have been violated by defendant.
Fisher v. Stoevenor & Co., 155 la. 548, 136 N. W. 673.
Alleging Intent. — A petition praying an injunction, and
alleging that defendant kept intoxicating liquor with in-
tent to sell in violation of the law, is sufficiently specific :
the allegation of keeping with intent to sell 'in violation of
law being one of ultimate fact.
Bowers v. Maas, 154 la. 640, 135 N. W. 25.
Description of Premises. — In a prosecution to restrain
a liquor nuisance described as maintained at 83 and 85
Market Street in a certain city, such description would be
construed to include premises designated as 83^ Market
Street, which was a stairway entrance to the second story
of the building described, in which respondent and his fam-
ily lived.
State v. Chicco, 82 S. C. 122, 63 S. E. 306.
Description of Defendant. — An allegation that one
"did keep and maintain" a liquor nuisance applies either to
one who occupies or who controls the occupation and pro-
cures or permits the illegal use of the place.
State v. Fogg, 107 Me. 177, 77 Atl. 714.
184 TITLE II— SEC. 23 OF ACT
Alleging Unlawful Transportation by Carrier. — "A
bill praying an injunction against transportation of persons
so carrying intoxicating liquors, by common carrier, un-
less such carrier through its agents, servants and employees,
has first ascertained by due diligence and caution and in
good faith that such liquors are not intended for use or dis-
position by such persons contrary to law, and not charging
the rendition of aid and assistance to any particular person
in his violations of the prohibition laws, by the carrier so
proceeded against, raises no question as to right in the
state to enjoin such transportation as to particular indi-
viduals."
State v. Baltimore, etc., R. Co., 78 W. Va. 526, 89 S.
E. 288, L. R. A. 1916F, 1001.
The allegation of a petition substantially averring the
violation of three sections of the criminal law which for-
bade the receiving, storing, keeping, or delivering of intox-
icating liquors without a license as a dramshop keeper or
a wholesaler, the petition wholly failing to set forth any
facts showing that the things done by the road were the
proximate and efficient cause of the creation of a public
nuisance, were insufficient to give the equity court juris-
diction, since to connect the railroad with the public nui-
sance alleged to have resulted from the drunkenness and
disorder consequent upon the illicit sale of liquor it was in-
dispensable that plaintiff show that such drunkenness and
disorder were caused directly by the mere act of the road
in transporting and delivering liquor in the county, or that
such act participated in bringing about the condition.
State v. Woolfolk (Mo.), 190 S. W. 877.
A bill by the state, by its solicitor, against an interstate
carrier to enjoin the maintenance of a liquor nuisance,
which alleges that the carrier has a warehouse, where
goods received are stored to await delivery to the consign-
ees; that prohibited liquors are received at the warehouse
in large quantities and at frequent intervals for delivery to
individuals for illegal purposes; that prohibited liquors are
received by the carrier for distribution or delivery, con-
trary to the laws of the state, and that it is maintaining a
"liquor nuisance" — charges a violation of the law by the car-
rier and authorizes injunctive relief, the words "prohibited
TITLE II— SEC. 23 OF ACT 185
liquor" meaning intoxicating liquors which under the law
the carrier has not the legal right to have in its possession.
Southern Exp. Co. v. State, 188 Ala. 454, 66 So. 115.
Bill for Injunction against Breach of Anti-Adver-
tizing Law. — A bill for injunction against violations of
the anti-advertising liquor law need not negative the appli-
cation of the rule concerning original packages in interstate
shipments, since that is a matter of defense.
Black v. Delaye, 193 Ala. 500, 68 So. 993.
Cross Petition. — A cross petition filed by a defendant
city, which cross petition states that the plaintiff is doing
certain specific acts which are in violation of the intoxicat-
ing liquor laws of this state and the ordinance of the de-
fendant city, and which constitute a common nuisance as
defined by the law of the state and the ordinances of the
city, and asks for an injunction against the doing of these
acts, states a cause of action.
Kansas City Breweries Co. v. Kansas City, 96 Kan. 731,
153 Pac. 523.
Prayer for Greater Relief Than Allowable. — Where
a complaint in a proceeding to abate and enjoin illegal deal-
ing in intoxicating liquors states a good cause of action, it
is not bad because the complaint seeks greater relief than is
allowable, by praying for the imposition of the punishment
provided by the criminal laws for the illegal sale of liquor,
but he is still entitled to have all the relief to which he
shows a right, and which is in whole or in part appropriate
to the prayer.
State v. Marshall, 100 Miss. 626, 56 So. 792, Ann.
Cas. 1914A, 434.
Plea and Defenses.
Plea of Abatement of Nuisance. — In an action for an
injunction to abate a liquor nuisance, the plea that defend-
ant had already abated the nuisance himself is addressed
largely to the discretion of the trial court, and the issu-
ance of an injunction is no abuse of the court's discretion,
186 TITLE II— SEC. 23 OF ACT
where the defendant abated the nuisance only the night
before the trial.
Bowers v. Maas, 154 la. 640, 135 N. W. 25.
Plea of Pending Appeal in Search Warrant Case.—
In a civil suit to enjoin a liquor nuisance in a bowling alley,
an order for the destruction of the liquors made by a jus-
tice and an appeal to the district court in a search warrant
proceeding, being a quasi criminal proceeding not between
the same parties nor involving the same issues and seeking
a different and more limited relief, cannot be pleaded in
abatement and is not a bar.
State v. Knapp, 178 la. 25, 158 N. W. 515.
Plea That Acts Were in Open Violation of Law.—
It is no defense to a proceeding brought to abate and en-
join a blind tiger as a nuisance that the sale of spirituous,
malt, or intoxicating liquor was in open violation of law.
Thompson v. Simmons & Co., 139 Ga. 845, 78 S. E.
419.
Death of Defendant Abates Proceeding. — Where the
defendant in an action to enjoin a liquor nuisance dies pend-
ing appeal, the action abates, and the liquor on defendant's
premises cannot be adjudged a nuisance, since there can be
no intent by defendant to keep and sell liquor in violation
of law, which is a necessary element.
Babbitt v. Corrigan, 157 la. 382, 138 N. W. 466.
Evidence.
Admissibility — Acts Not Alleged. — Under a petition
praying an injunction and alleging that defendant was
keeping intoxicating liquor with intent to sell in violation
of the law, evidence of unlawful sales, or other unlawful
acts or omission, not specifically alleged, is admissible, for
the keeping with intent is the ultimate fact which can only
be proven by the unlawful acts.
Bowers v. Maas, 154 la. 640, 135 N. \Y. 25.
Proof of Other Dates. — Where the defendant is
charged with maintaining a liquor nuisance on the 20th day
TITLE II— SEC. 23 OF ACT 187
of January, 1915, and evidence is introduced to sustain the
information as to that date, and further evidence is intro-
duced to show that the defendant was maintaining a liq-
uor nuisance on the 8th day of September 1914, the latter
evidence is admissible, where evidence is also introduced
tending to show a continuation of the nuisance between the
two dates.
State v. Maguire, 31 Idaho 24, 169 Pac. 175.
Surrounding Circumstances. — In a trial for maintain-
ing a liquor nuisance testimony as to what was found on
the place, indicating the presence of intoxicating liquors,
sounds of disturbance at night on the Fourth of July, and
acts of an intoxicated man who was neither a boarder nor
visitor at the place, was properly received to connect ac-
cused with control of the place and the acts done and con-
ditions found there, as was evidence of shipments from a
particular city of liquors to him up to the time when whisky
bottles with labels bearing the name of that city were found
at the place.
State v. Fogg, 107 Me. 177, 77 Atl. 714.
Sold as Beverage — Use Immaterial. — In a suit to en-
join the sale of intoxicating liquors, if the liquor in ques-
tion was sold as a beverage and contained alcohol, it would
not be material whether it was actually used as a beverage
or not.
State v. Silka, 179 la. 663, 161 N. W. 703.
Weight and Sufficiency. — In an action to enjoin a liq-
uor nuisance, evidence that defendant was the agent of the
corporation owning the building, and that he purchased
and placed the liquor in the building for sale, was suffi-
cient to sustain a judgment for plaintiff.
Barber v. Dapolonia (la.), 171 N. W. 586.
Under statutes respectively providing that, in action to
enjoin liquor nuisances evidence of the general reputation
of the place described shall be admissible to establish the
existence of the nuisance, and that the finding of intoxi-
cating liquors in the possession of one not authorized to
sell shall be presumptive evidence of a violation of law,
188 TITLE II— SEC. 23 OF ACT
the finding of several cases of beer, and of empty bottles
coupled with the general reputation that the place in ques-
tion was one where intoxicants were unlawfully sold, is
sufficient to establish prima facie the existence of the liq-
uor nuisance.
Shideler v. Naughton, 163 la. 616, 145 N. W. 280.
State v. Silka, 179 la. 663, 161 N. W. 703.
McMillan v. Metcalfe (la.), 174 N. W. 481.
Burden of Rebutting Prima Facie Case. — In a suit
to enjoin a liquor nuisance, where the evidence prima facie
established its existence, the burden is on defendant to re-
but the prima facie case.
Shideler v. Naughton, 163 la. 616, 145 N. W. 280.
Questions for Jury. — In a proceeding for an injunc-
tion against the use of premises for the illegal sale of in-
toxicating liquors, authorized by statute whether the prem-
ises are used for the illegal sale of liquors must be deter-
mined by a jury unless a jury trial is waived.
State v. Leary, 75 N. H. 459, 76 Atl. 192, 44 L. R. A.,
N. S., 457n.
Hearing. — Despite a statute providing that an applica-
tion for a temporary injunction to abate a liquor nuisance
may be supported by evidence in the form of affidavit, dep-
ositions, oral testimony, or otherwise, the final hearing on
the merits is on evidence in conformity with the practice
obtaining in the trial of equity causes generally, and plain-
tiff is entitled to have the cause set down for trial and
hearing on evidence adduced according to the usual prac-
tice notwithstanding defendant's affidavit in opposition to
the motion for a temporary injunction denied the conten-
tion of plaintiff.
Batten v. Snearly, 168 la. 362, 150 N. W. 583.
Costs. — Though an injunction in a suit to enjoin a liq-
uor nuisance be denied, because defendants in good faith,
before commencement of the action, abandoned the prac-
tice of handling liquor, yet this having been done after the
petition was sworn to and plaintiff not appearing to have
TITLE II— Sec. 23 OF ACT 189
known thereof when he filed his petition, or to have been
actuated by motive other than to secure enforcement of
the law, costs should be taxed against defendant.
Davidson v. Benevolent and Protective Order of Elks,
No. 374, 174 la. 1, 156 N. W. 187.
In a suit for the abatement of a liquor nuisance in a bowl-
ing alley, brought against the tenant and the owner of the
building, there being no testimony that the landlord had
any knowledge of her codefendant's use of the property,
it was improper to tax costs to the landlord.
State v. Knapp, 178 la. 25. 158 N. W. 515.
In a suit to enjoin the sale of intoxicating liquors, on
trial in vacation as to one of the defendants on application
for a temporary injunction, a decree, granting a temporary
injunction, providing that the costs upon the hearing for
temporary writ of injunction be taxed against a defendant,
was not a judgment against defendant for costs, but sim-
ply a provision that the costs on the temporary injunction
be so taxed because they were made in the contest by this
defendant, and that as between him and the other defend-
ants they should be taxed to him, and that the cause be
heard, later as to other defendants.
State v. Silka, 179 la. 663, 161 N. W. 703.
Issuance of Injunction. — \Yhere a corporation organ-
ized for a legitimate purpose dispensed intoxicating liquors
in violation of law, and the evidence warranted the infer-
ence that it would continue to do so unless restrained, and
it claimed the right to do so, the court will enjoin the cor-
poration and the persons actually participating in the ille-
gal dispensing of liquor.
Shideler v. Tribe of the Sioux, 158 la. 417, 139 N. W.
897.
In an action to enjoin alleged liquor nuisance, injunction
should be promptly granted and without any evasion, where
the evidence is sufficient to show a violation of law, not-
withstanding interest or motive of attorneys and witnesses.
Barber v. Buonanni Co., 179 la. 642, 161 N. W. 688,
689.
190 TITLE II— SEC. 23 OF ACT
On a petition to enjoin one styling himself J. W. Lang,
from violating the liquor laws, making C. W. Nies, a party,
and charging that defendant Nies, "alias J. W. Lang," was
maintaining the nuisance to abate which the injunction was
sought, where the trial court found that Lang was an alias,
Nies might be punished in his own proper person.
Nies v. Jepson, 174 la. 188, 156 N. W. 292.
Proof that several illegal sales of intoxicants were made
from defendant's drug store within a limited time war-
rants the issuance of an injunction to restrain the nuisance,
under the rule that knowledge may be shown by the doing
of like acts; such evidence warranting a finding that de-
fendant has knowledge of the sales.
Barber v. City Drug Store, 173 la. 651, 155 N. W. 992.
Discretion of Court. — The discretion of the trial court
in refusing permanent injunction of an alleged liquor nui-
sance, where it appears satisfactorily to it that it has been
in good faith abated, is not unlimited, and where the exist-
ence of the nuisance is conclusively shown, a writ for in-
junction is justified.
Fisher v. Skoglund, 155 la. 440, 136 N. W. 231.
Where the evidence is conflicting, the court below did
not abuse its discretion in granting an interlocutory injunc-
tion restraining the defendant from maintaining a "blind
tiger" and selling intoxicating beers and intoxicating liq-
uors at the place.
Loh v. Howard, 141 Ga. 509, 81 S. E. 198.
Breadth of Injunction. — An injunction against main-
taining a liquor nuisance should be broad enough to pre-
clude every possibility of the continuation or reopening of
the nuisance by the persons enjoined or by any one acting
for, by, through or under them or either of them or with
their permission.
State v. Glass, 99 Kan. 159, 160 Pac. 1145.
\\ here the allegations of a petition were that the de-
fendants were operating and maintaining a blind tiger, or
liquor nuisance at a particular place, by there selling spirit-
TITLE II— SEC. 23 OF ACT 191
uous malt, and intoxicating liquors in violation of law, and
there was no contention that the defendants were main-
taining elsewhere a similar nuisance, either in connection
with, or independently of, the one alleged to exist at the
place designated in the petition, nor even that the defend-
ants were contemplating or intending to elsewhere create
and maintain such nuisance, the judge was not authorized
to grant an interlocutory order enjoining the defendants
from maintaining a nuisance, not noly at the place desig-
nated in the petition, but elsewhere.
Watkins v. Wilkerson, 141 Ga. 163, 80 S. E. 718, Ann.
Cas. 1915C, 1124.
Injunction against Automobile after Destruction of
Liquor Seized. — Where intoxicating liquors were being
sold from an automobile, and the automobile and liquor
were seized, and the liquor destroyed, the destruction of
the liquor was not necessarily an abatement of the nui-
sance and there still might be grounds for proceedings in
injunction against the automobile.
State v. Raph (la.), 168 N. W. 259.
Denial of Injunction. — Where, in an action to enjoin
liquor nuisances because the statements of consent filed by
defendants were insufficient, it appeared that defendants
had been out of business 10 days before their case came on
for trial in the district court, and it was not claimed that
they intended to resume the business, the injunction was
properly denied.
State v. Harrison, 159 la. 67, 140 N. W. 223.
An injunction, restraining the maintenance of a liquor
nuisance, cannot be issued as to a defendant without proof
that he was in control of the drug store where the sales
were made at that time, it appearing that he had subse-
quently purchased the same.
Barber v. City Drug Store, 173 la. 651, 155 N. W. 992.
In a prosecution to abate and enjoin a blind tiger, the de-
fendant cannot be adjudged to be disqualified from doing
business under a near beer license which he holds and from
ever doing business for himself under any such license, and
192 TITLE II— SEC. 23 OF ACT
from being employed by another engaged in business under
such a license, and, by reason of such disqualification, be
enjoined from doing business under such license until the
further order of the court.
Cassidy v. Howard, 140 Ga. 844, 80 S. E. 1.
Injunction Unnecessary after Abatement. — Where
officers found a barrel of whisky under defendant's stable
and two other barrels buried near by, and it was their
duty to seize the same to be forfeited to the state, and it
will be presumed that they discharged such duty, and, tb?
nuisance being abated, it was error to enjoin the defendant
from thenceforth receiving liquor and having it in his pos-
session ; there being no evidence that he intended so to do.
Thornton v. Skelton (Ga. App.), 99 S. E. 299.
The court in a suit to enjoin a liquor nuisance may deny
an injunction, defendants in good faith, before the action
was commenced, though to avoid being enjoined, having
abandoned the practice of handling liquors in their club-
rooms.
Davidson v. Benevolent and Protective Order of Elks,
No. 374, 174 la. 1, 156 N. W. 187.
Abatement.
See also ante, under Sec. 21.
In a suit to enjoin a liquor nuisance in a bowling alley,
where the defendant did hot know that the liquor he was
selling was intoxicating, abandoned the sale, and volun-
tarily abated the nuisance before commencement of the
suit, a decree and order of abatement may be entered to
insure complete repentance.
State v. Knapp, 178 la. 25, 158 N. W. 515.
Under statute declaring the building in which a liquor
nuisance is maintained a nuisance and providing that an
order of abatement shall direct the effectual closing of the
building, in a suit to abate a liquor nuisance in a bowling
alley for illegal sales by a tenant, an order of abatement
and for the closing of the building were proper, although
TITLE II— SEC. 23 OF ACT 193
the owner, made defendant, had no notice or knowledge of
the illegal sales.
State v. Knapp, 178 la. 25, 158 N. W. 515.
Blind tigers are public nuisances, affecting the whdle
community, and, as such, they may be abated.
Ruston v. Fountain, 118 La. 53, 42 So. 644.
Legg v. Anderson, 116 Ga. 401, 42 S. E. 720.
Lofton v. Collins, 117 Ga. 434, 43 S. E. 780, 61 L. R.
A. 150.
Rush v. Commonwealth (Ky.), 47 S. W. 586.
Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31
L. Ed. 205.
Purity Extract, etc., Co. v. Lynch, 226 U. S. 192, 33
Sup. Ct. 44, 57 L. Ed. 184.
Shreveport v. Maroun, 134 La. 490, 64 So. 388.
Relief on Giving Bond by Defendant. — Under direct
provisions of a statute, the owner of a building, in which
a liquor nuisance has been maintained without his knowl-
edge and an order of abatement entered closing the build-
ing, may upon establishing his good faith, paying costs,
and filing bond to full value of the property to prevent the
nuisance being established, recover possession, and have
the order of abatement canceled so far as it relates to the
property.
State v. Knapp, 178 la. 25, 158 N. W. 515.
Appeal or Certiorari. — On certiorari by one found
guilty of contempt in being concerned in the liquor traffic
in violation of an injunction, weight is given the finding
of the trial court.
Button v. Anderson (la.), 145 N. W. 321.
On certiorari to review order finding accused guilty of
contempt by violating injunction against illegal sale of
intoxicating liquors, while evidence to sustain the finding
must amount to more than the mere preponderance which
sustains recovery of the law side, violation need not be
proved beyond a reasonable doubt.
Nies v. District Court (la.), 161 N. W. 316.
—13
194 TITLE II— SEC. 23 o* ACT
On certiorari to review order adjudging accused guilty
of contempt in violating an injunction restraining illegal
sale of intoxicating liquors, the review is not de novo, but
the finding below does not have as much weight as a ver-
dict.
Nies v. District Court (la.), 161 N. W. 316.
Reversal. — Where an injunction against maintaining a
liquor nuisance in a building was issued against the owner
and others, the reversal of the decree, as against one not
shown to have been in control of the business or building
at the time of the nuisance will not carry with it the decree
against the owner.
Barber v. City Drug Store, 173 la. 651, 155 N. W. 992.
TITLE II— SEC. 24
Contempt of Court for Violation of Injunction Proceed-
ings— Punishment.
*
SEC. 24. In the case of the violation of any injunc-
tion, temporary or permanent, granted pursuant to the
provisions of this title, the court, or in vacation a judge
thereof, may summarily try and punish the defendant.
The proceedings for punishment for contempt shall be
commenced by filing with the clerk of the court from
which such injunction issued information under oath
setting out the alleged facts constituting the violation,
whereupon the court or judge shall forthwith cause a
warrant to issue under which the defendant shall be
arrested. The trial may be had upon affidavits, or ei-
ther party may demand the production and oral exam-
ination of the witnesses. Any person found guilty of
contempt under the provisions of this section shall be
punished by a fine of not less than $500 nor more than
$1,000, or by imprisonment of not less than thirty days
nor more than twelve months, or by both fine and im-
prisonment.
Violation by Tenant— Presumption. — Statutory pro-
hibition against violating liquor laws by servant, agent, em-
ployee, or tenants, and commands in injunctions against
sale by servant, agent, tenant, or employee, mean, so far
as contempt proceedings are concerned, that the landlord
cannot shield himself by having his tenant sell the liquor;
that the finding of liquor in a hotel raises a presumption
that the owner has violated the law through his tenants;
but that such presumption is not conclusive, and the doc-
trine of landlord and tenant or respondent superior does
not apply.
Nies v. District Court (la.), 161 N. W. 316.
196 TITLE II— SEC. 24 OF ACT
Good Faith of Defendant Immaterial. — The test
whether liquor is intoxicating, and whether the seller has
violated injunction restraining sale of intoxicating liquor,
is the character of the liquor, and not the good faith of the
defendant, so that evidence that the defendant did not
know of the intoxicating character of the liquor is incom-
petent.
Nies v. District Court (la.), 161 N. W. 316.
Effect Not Avoided by Removal to Place in Same
County. — Injunction against an incorporated club and its
officers from using the premises of the club, or any part,
for selling spirituous, vinous, or malt liquors, etc., related
to the business or occupation in which the club and its of-
ficers were engaged, and could not be avoided by removal
to another town in the same county.
Ex parte Alderete (Tex. Cr. App.), 203 S. W. 763.
Nature of Proceeding. — A charge of contempt of court
for violating an injunction inhibiting the sale of intoxicat-
ing liquors as a nuisance, is a criminal contempt which is
punitive in character to vindicate the authority of the law
and of the court as, an organ of society, and which, though
it may arise in private litigation, raises an issue between the
public and the accused, not a civil contempt, which is a
proceeding in furtherance of the right of a private person
which the court has determined he as a litigant is entitled to.
Anderson v. Daugherty, 137 Tenn. (10 Thompson)
125, 191 S. W. 974.
Governed by Special Statute. — The procedure in con-
tempt cases arising under the prohibitory law is governed
by the special provisions found in such law, and the pro-
visions of the law relating to contempts in general do not
govern in contempt cases arising under the prohibitory law.
State v. Finlayson (N. D.), 170 N. W. 910.
"All contempt proceedings, whether for violation of a
liquor injunction or any other decree or order of the court,
are special and sui generis and the general procedural rules
do not apply thereto, save as expressly provided. In their
TITLE II— SEC. 24 OF ACT 197
nature they are both criminal and civil, and by some courts
they are held to partake more of nature of criminal than
civil proceedings. See Wells v. District Court, 126 la. 340,
102 N. W. 106; Grier r. Johnson, 88 la. 99, 55 N. W. 80;
Black v. State, 75 Neb. 603, 106 N. W. 787; State v. Dis-
trict Court, 24 Mont. 33, 60 Pac. 493 ; Raymert v. Smith, 5
Cal App. 380, 90 Pac. 470; Ex parte Kearney, 7 Wheat (U.
S.) 38, 5 L. Ed. 391; Gompers v. Bucks Stove Co., 221 U
S. 418, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A., N. S.,
874n."
Tuttle v. Hutchison, 173 la. 503, 151 N. W. 845, 851.
Where either of two injunctions prohibiting defendants
from selling, etc., intoxicating liquors, is good, and its provi-
sions broad enough to cover the act charged against him
on an information for violation of such injunction, he is
guilty of contempt for the violation of either.
State v. District Court, 176 la. 178, 157 N. W. 737.
In contempt proceedings for violation of two decrees of
injunction prohibiting defendant from selling, etc., intoxi-
cating liquors, where the provisions of the two decrees are
the same, they should be treated as one decree.
State v. District Court, 176 la. 178, 157 N. W. 737.
Knowledge or Intent. — If landlord of hotel knew that
soft drinks were to be served and did not know that intoxi-
cating liquors were to be served, she was not criminally lia-
ble for contempt by violating injunction against sales of in-
toxcating liquors; but, if she knew that a drink called
"malta" was to be sold and it was in fact intoxicating, she
was criminally liable, though she thought it was a soft drink.
Nies v. District Court (la.), 161 N. W. 316.
Trial by Jury. — In a contempt proceeding under the
North Dakota Prohibitory Law, the party charged with con-
tempt is not entitled to a trial by jury.
State v. Markuson, 5 N. D. 147, 64 N. W. 934.
S. C., 7 N. D. 155, 73 N. W. 82, reaffirmed.
State v. Finlayson (N. D.), 170 N. W. 910.
198 TITLE II— SEC. 24 OF ACT
Allegations of Petition. — Where, upon a bill alleging
that defendant was engaged in the sale of intoxicating liq-
uors, a temporary injunction was issued enjoining defend-
ant from further engaging in the sale of liquors, from mov-
ing or disturbing his stock of liquors and bar fixtures, or
from entering the barroom of his building and interfering
therewith, a petition for an attachment for contempt, charg-
ing that he had continued the sales of intoxicating liquor
in willful disobedience of the injunction showed a viola-
tion of the injunction; it not being pretended that defend-
ant supposed himself to be charged with selling liquors at
any place other than his barroom.
State v. Ragghianti, 129 Tenn. (2 Thompson) 560, 167
S. W. 689.
Dismissal. — In contempt proceedings for violation of
two injunctions against the sale, etc., of intoxicants, where
the court sustained the motion to strike the first count of
the information setting out the first injunction, and the
other injunction was void and not sufficient to cover the
acts charged, the entire case must be dismissed.
State v. District Court, 176 la. 178, 157 N. W. 737.
Evidence — Grand Jury Minutes. — Where the defend-
ant was enjoined from selling, or keeping for sale, intoxi-
cating liquor contrary to law and was later indicted by the
grand jury for keeping a liquor nuisance for a period, seven
months of which antedated the injunctional decree, on an
information for contempt of the injunctional decree, the
minutes of the testimony taken before the grand jury could
be considered in order to fix the time of the contempt when
it was claimed offense was committed to which the defend-
ant had pleaded guilty.
Orr v. Cornell (la.), 156 N. W. 296.
Kind of Beverage. — In a prosecution for contempt by
violation of injunction against illegal sale of intoxicating
liquors, evidence that a beverage called "malta," and sold
by defendant contained a very small percentage of alcohol,
is immaterial, since under the statute it is "intoxicating
liquor" if it contains any alcohol.
Nies v. District Court (la.), 161 N. W. 316.
TITLE II— SEC. 24 OF ACT 199
Sufficiency of Showing of Contempt.— On informa-
tion for contempt of an injunction decree against selling
and keeping for sale intoxicating liquors contrary to law,
an indictment by the grand jury for keeping a liquor nui-
sance for a period, seven months of which antedated the
decree, would not alone be sufficient to justify a commit-
ment for contempt of court for violating the decree.
Orr v. Cornett (la.), 156 N. W. 296.
Where a druggist was enjoined from illegally selling in-
toxicating liquors, and his place of business was described
in the injunction, and the druggist sold his business, but re-
mained as a clerk, a personal selling of intoxicant is a vio-
lation of the injunction, rendering him liable for contempt.
Rust v. District Court, 162 la. 244, 143 N. W. 1086.
State v. Kurent (Kan.), 184 Pac. 721.
Liability of Husband of Owner of Premises. — In
prosecution for contempt by violating injunction against
illegal sale of liquors, the husband of the owner of the
premises, indicted with her, who merely assisted in install-
ing apparatus for vending soft drinks, but who further re-
sisted raiding officers and denied them entrance, is in no
essentially different position than had he himself secured
the intoxicating liquors and was keeping them with intent
to sell them.
Nies v. District Court (la.), 161 N. W. 316.
Liability of Servant. — A servant is not presumed to
know of an injunction which affects his master's title in and
to his master's property or which affects his master's right
to the use and occupancy of his property for the sale of liq-
uor so as to be liable for a violation of the injunction.
Harris v. Hutchison, 160 la. 149, 140 N. W. 830, 44 L.
R. A., N. S., 1035.
Servant Not a Party to Suit.— One not a party to a
suit resulting in an injunction restraining third person from
maintaining a liquor nuisance on premises and perpetually
restraining the use of the premises for the traffic in intoxi-
cating liquors, and without knowledge of its issuance, is not
200 TITLE II— SEC. 24 OF ACT
guilty of contempt for a violation of the injunction for sell-
ing liquor on the premises as a servant of the third person.
Harris v. Hutchison, 160 la. 149, 140 N. W. 830, 44 L.
R. A., N. S., 1035.
Same Acts as Contempt and Subject of Criminal
Prosecution. — In a contempt proceeding for the violation
of a decree enjoining the sale of intoxicating liquors and
the maintenance of a nuisance at a certain place, the de-
fendant may be punished for sales of liquor and for acts
done in maintaining a nuisance, although a criminal pros-
ecution is pending against him for the same sales and acts.
State v. Kurent (Kan.), 184 Pac. 721.
Defenses. — Where one accused of violating injunction
restraining illegal sale of liquors had previously been en-
joined under a permanent writ, his interposing to a charge
of contempt the fact that the injunction should not have
been granted, is a purely collateral attack upon the injunc-
tion and of no avail.
Nies v. District Court (la.), 161 N. W. 316.
Appeal or Certiorari. — In contempt proceedings for
violation of an injunction pendente lite against a liquor
nuisance, issued ex parte on an allegation in the complaint,
on which issue has not been joined, that defendant was the
owner or manager of the place, the order for injunction
cannot be taken on certiorari, as adjudication of the fact
alleged.
State v. District Court, 54 Mont. 580, 172 Pac. 539.
TITLE II— SEC. 25
Unlawful Possession— Search and Seizure — Warrants-
Property Subject to Seizure— "Private Dwelling."
SEC. 25. It shall be unlawful to have or possess any
liquor or property designed for the manufacture of liq-
uor intended for use in violating this title or which has
been so used, and no property rights shall exist in any
such liquor or property. A search warrant may issue
as provided in Title XI of public law numbered 24 of
the Sixty-fifth Congress, approved June 15, 1917, and
such liquor, the containers thereof, and such property
so seized shall be subject to such disposition as the
court may make thereof. If it is found that such liq-
uor or property was so unlawfully held or possessed,
or had been so unlawfully used, the liquor and all prop-
erty designed for the unlawful manufacture of liquor
shall be destroyed unless the court shall otherwise or-
der. No search warrant shall issue to search any pri-
vate dwelling occupied as such unless it is being used
for the unlawful sale of intoxicating liquor, or unless it
is in part used for some business purpose such as a
store, shop, saloon, restaurant, hotel, or boarding house.
The term " private dwelling" shall be construed to in-
clude the room or rooms used and occupied not tran-
siently but solely as a residence in an apartment house,
hotel, or boarding house. The property seized on any
such warrant shall not be taken from the officer seizing
the same on any writ of replevin or other like process.
Ex Post Facto Legislation.— A statute making it un-
lawful to have possession of intoxicating liquors for sale
in force from and after April 1, 1913, and ratified March
3, 1913, is not objection as ex post facto when applied to
202 TITLE II— SEC. 25 OF ACT
the findings of liquor in the possession of accused April 17,
1913, in the absence of anything to show that the liquor
was acquired prior to the ratification of the act.
State v. Denton, 164 N. C. 530, 80 S. E. 401.
Intent. — "The old rule that criminal intent must accom-
pany a crime is still the law, even as to liquors, so far as
we have been able to ascertain. There must be actual or
constructive intent to do the thing which constitutes the
crime; otherwise there is no criminal act. If it can be said
that the liquor in this case was in the possession of the de-
fendant merely because it was in his shop, when he did not
know it, stilj such possession, not being conscious, was not
actual and intentional possession, as contemplated by the
statute."
Jackson v. Gordon (Miss.), 80 So. 785.
The chief element in the offense of storing alcoholic liq-
uors is the unlawfulness of the storing the intent of him
who has the liquor.
State v. Tooley, 107 S. C. 408, 93 S. E. 132.
Presumptions and Inferences of Law. — The pre-
sumption raised by statute that intoxicants found in one's
possession are held by him for an illegal purpose, applies
to hotel keeper who kept liquors in his private room in
hotel ; exceptions as to private dwelling house contained in
such section not applying.
State v. Marquardt (la.), 169 N. W. 338.
In a prosecution for storing alcoholic liquors, the court
may not infer as matter of law that the discovery of a very
small quantity of liquor in defendant's safe on three sep-
arate occasions within a period of six months did not
amount to storing.
State v. Tooley, 107 S. C. 408, 93 S. E. 132.
Ownership of Premises. — Under a statute providing
that the keeping of prohibited liquors or beverages in a
building not used exclusively for a dwelling shall be prima
facie evidence that they are kept for sale etc., it is not es-
sential in order to raise the statutory presumption to prove,
TITLE II— SEC. 25 OF ACT 203
in prosecution for violation of the prohibition law, that the
accused owned, or even had legal possession of, the build-
ing in which liquors were kept.
Stout t-. State, 15 Ala. App. 206, 72 So. 762.
There is a presumption against any one whose property is
found employed in violation of liquor laws that such prop-
erty was engaged with owner's knowledge.
State v. Southern Exp. Co. (Ala.), 75 So. 343.
Quantity Immaterial. — If defendant's act in storing
liquors be unlawful, a court will not measure with nicety
the quantity defendant had in his safe.
State v. Tooley, 107 S. C. 408, 93 S. E. 132.
Possession — What Constitutes. — Where defendant
gave a public drayman a check for a trunk and instructed
him to get it, and take it to a certain place, and paid him
therefor, and it was seized while in the drayman's posses-
sion and found to contain more than one gallon of
whisky there was such a possession by defendant as to make
out a prima facie case against him.
State v. Lee, 164 iN. C. 533, 80 S. E. 405.
Where a statute makes it unlawful for any person, other
than licensed druggists and medical depositories, to have
in possession for purposes of sale any liquors, and makes
the having in possession of more than one gallon at a time
prima facie evidence of violation of the section, and three
barrels, each containing 40 pint bottles of whisky, con-
cealed with potatoes, addressed to defendant, were seized
while in the care and custody of the railroad carrying them
to him by his consent and procurement, it was held that he
was in "possession" of such whisky within the statute.
State v. Blauntic, 170 N. C. 749, 87 S. E. 101.
Possession by Agent. — Under statute of possession of
liquor by defendant's agent is a possession by defendant.
Hoskins v. Commonwealth, 171 Ky. 204. 188 S. \V.
348.
204 TITLE II— SEC. 25 OF ACT
Where defendant receipted for whisky, and directed the
express agent how to dispose of it, the expressman became
his agent, so that, for the purpose of a prosecution for
having possession of whisky for sale in local option terri-
tory, the whisky came into defendant's possession.
Combs v. Commonwealth, 162 Ky. 86, 172 S. W. 101.
"In Own Home." — In a statute providing that nothing
in the act shall prevent one "in his own home" from hav-
ing and giving to another ardent spirits, the words "at his
home," mean anywhere within the curtilage, the cluster of
dwelling houses used by the family as a habitation, as de^
fined from time immemorial, and the words "in his own
home," "in his home," and "permanent residence of the
person and his family," have substantially the same mean-
ing.
Bare v. Commonwealth, 122 Va. 783, 94 S. E. 168, 169.
Locked Boom in Public Building. — The keeping of
liquor in a room on the first floor of a building used as a
public resort, surrounded by rooms open to the public, is
prohibited by a statute making it unlawful to keep any
liquor in any room, building, or structure other than a pri-
vate residence, not used as a place of public resort, though
the room in question was locked.
People v. Wheeler, 185 Mich. 164, 151 N. W. 710.
Mere Possession Not Illegal unless So Declared.—
Under a statute providing that after November 1, 1916, it
shall be unlawful for any person to manufacture, trans-
port, sell, keep, or store for sale more than a gallon of in-
toxicating liquor, the mere keeping of liquor is not illegal,
but to constitute the offense it must be kept for sale.
Pine v. Commonwealth, 121 Va. 812, 93 S. E. 652, 654.
Mere Possession at Private Residence Not Unlaw-
ful.— Under a statute which in Sec. 1 provides that it shall
be unlawful for any person to sell, keep for sale, give
away, or furnish any intoxicating liquors, etc., or to keep
any place where such liquors are sold, stored for sale, given
away, or furnished, and Sec. 38 thereof, providing that
TITLE II— SEC. 25 OF ACT 205
the keeping or having in any house or building, except a
private residence occupied as such, of any intoxicating liq-
uors, for the purpose of selling, giving away, or furnishing
to those frequenting the place, or others, shall be held to
be the keeping of a place where intoxicating liquors are
sold, furnished, or given away, it is held, that section 38
does not make it impossible to commit the offense of keep-
ing a place where intoxicating liquors are stored, given
away, and furnished in a private residence, since the two
sections should be read together, and, when so read, if the
offense is shown to have been in a private residence, some-
thing more must be shown than the keeping or having any
of the liquors mentioned in section 1.
People v. Lester, 195 Mich. 477, 162 N. W. 72.
"Keeping" Construed. — Liquor Law, rendering ille-
gal the "keeping" of intoxicants, uses the word "keeping"
as synonymous with having in possession, being in control,
though the term as sometimes used implies a continued
possession.
Balfe v. People (Colo.), 179 Pac. 137.
"Place of Business" Construed. — A place of business
within the prohibition law, is a jpublic place of business,
not in the sense that it belongs to the public nor that there is
any great degree of publicity, but that it must be a place to
which the public is invited either expressly or t>y implication
to transact business ; and by "public" is meant that the pub-
lic is invited to come to it and has access to it for a purpose
within the scope of the business that is carried 'on.
Brocks v. State, 19 Ga. App. 3, 90 S. E. 989.
"Presumptively, a 'pressing club,' where clothes are
pressed for a monetary consideration, is a 'place of busi-
ness,' where the public are invited, at least impliedly, to come
and transact business with the owner or manager, and ac-
cordingly it is such a public place of business as is con-
templated in the statute, which forbids the keeping on hand
at one's place of business intoxicating liquors. Roberts v.
State, 4 Ga. App. 207, 60 S. E. 1082 ; Jenkins v. State, 4
206 TITLE II— SEC. 25 OF ACT
Ga. App. 859, 62 S. E. 574; Land v. State, 5 Ga. App. 98,
62 S. E. 665."
Jones v. State, 17 Ga. App. 118, 86 S. E. 284.
Pool Room as Public Place. — "A poolroom frequented
and used by the public is a 'public place,' within the mean-
ing of the prohibition statute. The phrase 'public place,'
as used in the prohibition law, by a broad, general, and not
wholly exhaustive definition, includes any place which, from
its public character, members of the general public frequent,
or where they may be expected to congregate at any time as
a matter of common right; also any place at which, even
though it is privately owned or controlled, a number of per-
sons have assembled, through common usage or by general
or indiscriminate invitation, express or implied. Tooke v.
State, 4 Ga. App. 495, 61 S. E. 917, 918."
Griffin <y. State, 15 Ga. App. 552, 83 S. E. 871.
Under Interstate Commerce Clause of Constitution.
— The possession of two quarts of whisky by an interstate
passenger carried for his private use, and not in excess of
what is reasonably necessary for his personal use and com-
fort while on the journey, is protected by the commerce
clause of the Constitution as possession of personal bag-
gage.
Howard v. State (Ala. App.), 73 So. 559.
Possession upon the Street. — The Nevada Prohibi-
tion Act, § 7, was intended to prevent a person from hav-
ing intoxicating liquor upon the street for personal or any
other use other than contemplated by the act itself.
Ex parte Zwissig (Nev.), 178 Pac. 20.
Action for Undisclosed Principal as Defense. — One
found in possession of intoxicating liquors, which may be
imported only for personal use, and shown to have made
affidavit that the same were for his own use, cannot make
a good defense on the ground he was acting for an undis-
closed principal.
Balfe v. People (Colo.), 179 Pac. 137.
TITLE II— SEC. 25 OF ACT 207
Common Carriers. — An act which declares that: "It
shall be unlawful for any corporation, firm, person or in-
dividual to * * * have, control or possess, in this state,
any of said enumerated liquors or beverages whether in-
tended for personal use or otherwise, save as is hereinafter
excepted," by its plain terms makes it unlawful for any
corporation to have, control, or possess, in this state, any
of the liquors mentioned. There is no exception in behalf
of common carriers. The express mention of common car-
riers in another part of the same section and elsewhere in
the act does not show that it was the intention of the Gen-
eral Assembly to except common carriers from the provi-
sions of this law, but the act clearly indicates that it was
the intention of the Legislature to prohibit intoxicating
liquors, except in specified case, from being transported
into or within, or possessed or controlled in this state by
any person whatsoever, natural or artificial. This intent
is made clear by the fact that the act names every con-
ceivable one who could transport or possess or control
intoxicating liquors. The defendant company is a corpora-
tion, and consequently is included under the plain terms
of the act.
Seaboard Air Line Railway v. State (Ga. App.), 97
S. E. 549.
Liquor Acquired before Law Passed. — A statute
making it unlawful to have possession of over a certain
amount of intoxicating liquor, does not render unlawful
liquor acquired prior to the act's effective date, and held
only for personal use.
State v. Eden, 92 Wash. 1, 158 Pac. 967, 159 Pac. 700.
Search Warrant Provision.
Against Druggest.
See ante, under Sec. 8.
Construction of Statutes.— The particular statutes un-
der consideration, in reference to search warrants, should
receive a broader and more liberal construction than the
general statutes in reference to common-law search war-
rants, and it is not necessary in the complaint or warrant to
208 TITLE II— SEC. 25 OF ACT
describe the liquor or property to be searched for nor the
premises to be searched, with that degree of common-law
search warrants.
Milwaukee Beer Co. v. State, 55 Okla. 181, 155 Pac.
200.
A statute authorizing searches and seizures confers ex-
traordinary and harsh remedies and must be strictly com-
plied with, and a search warrant can lawfully issue only
in the cases and with the formalities prescribed by the
statute.
In re State, 179 Ala. 639, 60 So. 285.
A warrant issued by a justice of the peace, commanding
search of a certain passenger train to see if intoxicating
liquors are being carried thereon contrary to law, is not
authorized by Barnes' West Va. Code 1918, c. 32a, § 9
(Code ,1913, c. 32A, § 9 [sec. 1288]), and is void.
Clark v. Norfolk, etc., R. Co. (W. Va.), 100 S. E. 480.
Constitutionality. — The North Car. Laws 1913 c. 44,
relating to the illegal sale of intoxicating liquors and known
as the search and seizure law, is constitutional.
State v. Cathey, 170 N. C. 794, 87 S. E. 532.
The Alabama Act providing for the suppression of the
evils of intemperance and especially section 22 subd. 6,
par. "a" (page 76) providing for searches and seizure of
intoxicating liquors wrongfully kept for sale, is not un-
constitutional.
Jones v. State, 4 Ala. App. 159, 58 So. 1011.
The provision in the statute that any place suspected of
being a blind tiger shall be searched by an officer desig-
nated in a search warrant, issued on an affidavit that the
affiant believes the place to be a blind tiger and no such ad-
ditional evidence as the court may require to make out a
prima facie case and that if any intoxicating liquor found
therein shall be seized by the officer and brought before the
court along with all persons found in the place, is not vio-
lative of the constitutional guaranty against unreasonable
TITLE II— SEC. 25 OF ACT 209
search and seizure and the issuance of a warrant without
probable cause supported by oath or affirmation.
State v. Doremus, 137 La. 266, 68 So. 605.
Nature of Proceeding as in Rem.— A proceeding
originating in a search warrant under the act relating to
the suppression of intemperance, conducted in the name of
the state for the condemnation of beer and in which a
claimant asserts interest is no criminal prosecution but a
proceeding in rem, which, upon reasonable, or general no-
tice, determines the status of the property as to the whole
world.
Toole v. State, 170 Ala. 41, 54 So. 195.
Search without Warrant. — "That the circumstances
were such as to cause an ordinarily prudent officer, in the
exercise of his duties, to believe that plaintiff had intoxicat-
ing liquor in his suit case for unlawful purposes, did not
justify the officer in making a search of the suit case and
using the force reasonably necessary for that purpose,
since ; while the statute authorizes an officer to seize in-
toxicating liquors illegally kept without a warrant, no
search without a warrant is authorized."
Caffini v. Hermann, 112 Me. 282, 91 Atl. 1009.
Sufficiency of Charge of Offense. — An amended
search warrant, charging that defendant, on whose premises
a quantity of intoxicating liquors was found after search,
had committed the offense of having in his possession in-
toxicating liquors for the purpose of sale in a local option
county, is almost, if not quite, as specific as would be re-
quired for an indictment, and is sufficient since such war-
rant need not charge the offense with the technical accu-
racy required in an indictment.
Frey v. Commonwealth, 169 Ky. 528, 184 S. W. 896.
But a complaint in a proceeding under a statute, to
search for and seize intoxicating liquors, describing the
place as "a certain shop and dwelling and its appurtenance,"
occupied by defendant as a store and dwelling is insuffi-
cient for failing to charge that the dwelling house, or any
210 TITLE II— SEC. 25 of ACT
part of it, is used as an inn or shop, or for purposes of
traffic, within the statute.
State v. Soucie, 109 Me. 251, 83 Atl. 700.
In search and seizure proceeding under Alabama Act,
(Aug. 25, 1909, Gen. & Loc. Laws Sp. Sess. 1909, p. 74),
on motion an affidavit was properly overruled, where the
affidavit stated that defendant kept a place where spirituous,
vinous, or malt liquor or beverages were kept for sale or
otherwise illegally disposed of, known as the Olympian
Hotel.
Cheek v. State, 3 Ala. App. 646, 57 So. 108.
Insufficiency of Affidavit Makes Warrant Void.—
Where a search warrant issued to discover liquors was
based on a wholly insufficient affidavit, which failed to show
that there was probable cause to believe that the liquors
were illegally kept as required by statute, the warrant was
void, and the proceeding could not be sustained by an
amendment filed after the warrant had been executed and
the liquor seized.
Coleman v. State, 7 Ala. App. 424, 61 So. 20.
Description of Premises and Property. — A search
warrant describing the property to be seized as the fol-
lowing contraband intoxicating liquors now unlawfully in
the possession, storage, and keeping of and on the premises
occupied by S., the said place being known as No. 1216 G.
Street in the city of C., to wit a lot of whisky, brandy,
wine, rum, gin, and beer in barrels, demijohns, bottles, and
other vessels, sufficiently described the premises and prop-
erty.
Farmer v. Sellers, 89 S. C. 492, 72 S. E. 224.
Fictitious Name. — Under a statute which requires a
complaint, in a proceeding to search for and seize intoxi-
cating liquors unlawfully kept, to state the name of the
keeper, or that it is unknown, a complaint, stating the
keeper's name fictitiously as "John Doe," without stating
that his real name is unknown, is void.
State v. Intoxicating Liquors, 110 Me. 260, 85 Atl.
1060.
TITLE II— SEC. 25 OF ACT 211
Affidavit of Probable Cause— What Must Be
Stated. — Under state law providing for issuance of
search warrant on affidavit of probable cause to believe that
intoxicating liquors are being sold unlawfully, probable
cause need only be sufficient to create the belief in the mind
of the judge that liquor is being sold contrary to law, and
there is no requirement that the cause be stated in the com-
plaint; the ascertainment of probable cause being a judicial
function.
State v. Gordon (Wash.), 163 Pac. 772.
The Alabama Act authorizes search and seizure for
liquors on a warrant to be issued when any person, firm
or association, etc., keeps a place where prohibited liquors
and beverages are manufactured, sold, kept for sale, or
otherwise disposed of contrary to law, or when such liq-
uors are stored for sale delivery, or distribution contrary
to law, or for other illegal purpose in any warehouse or
other place, when such prohibited liquors are in the pos-
session of any person, firm, or association conducting on
the premises an unlawful drinking place or maintaining
liquor nuisance, or when any persons, firm, or association
is carrying on at the place the business of a retail or whole-
sale dealer in liquors, and such liquors are kept for sale by
such dealer. Held, that such warrants were only issuable
on a showing of probable cause by an affidavit naming or
describing the person or party whose premises are to be
searched, if known, etc., together with probable cause
shown for believing that one or more of the specified
grounds for issuing the process exists and hence an affi-
davit, merely alleging that the affiants had cause to believe,
and did believe that malt liquors were stored in a building
owned by C. then occupied by certain others and known as
the "Old Tillery Shop," in L. County, or in a nearby res-
taurant operated by J. in such county, was insufficient to
support the writ.
Coleman v. State, 7 Ala. App. 424, 6 So. 20.
Time for Execution. — A search warrant cannot legally
be enforced so long after its issuance that the search could
not be reasonably considered a bona fide effort to recover
the property described, though there is no absolute time
212 TITLE II— SEC. 25 OF ACT
fixed by law enforcing the warrant. The time of execut-
ing a search warrant depends upon the character of the per-
son charged with having the stolen or contraband goods, the
nature of the crime charged, etc., there being no absolute
time fixed by law for its execution.
Farmer v. Sellers, 89 S. C. 492, 72 S. E. 224.
Arrest on Void Search Warrant Illegal. — "An arrest
made on a void search warrant is illegal, and a conviction
of the person arrested thereon in a justice's court is illegal
and void."
Emsweller v. Wallace, 78 W. Va. 214, 88 S. E. 787.
"Place" That Can Be Searched.— West Va. Statute
(Code 1913, § 1288) authorizing a warrant for the search
of any house, building, or other place in which it is charged
the manufacture, sale, offering, keeping, or storing for sale
or barter of liquor contrary to law is carried on, and for sei-
zure of fixtures and arrest of persons found therein, con-
templates a house, building, boat, or place which persons
may be and performing the forbidden acts, and a suitcase,
trunk, or other small container of liquors or packages of
liquors, is not such a "place."
Emsweller v. Wallace, 78 W. Va. 214, 88 S. E. 787.
Liability for Action under Invalid Warrant. — De-
fendants, who voluntarily participated in a raid upon plain-
tiff's hotel and assisted rangers in forcibly breaking and en-
tering his storeroom, and carrying away his stock of liquors,
knowing the invalidity of the search and seizure war-
rant under which the Rangers purported to act, and that
the seizure was unlawful, even, though commanded or re-
quested to do so by such Rangers, were liable to plaintiff
in damages.
Cartwright v. Canode, 106 Tex. 502, 171 S. W. 696.
Failure of Officer to Sign Return to Warrant. — In
a prosecution for criminally keeping for sale spirituous and
intoxicating liquors, failure of officer to sign a return to
a search warrant did not render it improper to admit in
evidence liquor seized under the search warrant.
State v. Agalos, (N. H.), 107 Atl. 314.
TITLE II— SEC. 26
Seizure in Transportation — Confiscation of Conveyance —
Destruction of Liquor — Sale of Otlher Property Dis-
position of Proceeds.
SEC. 26. When the commissioner, his assistants, in-
spectors, or any officer of the law shall discover any
person in the act of transporting in violation of the
law, intoxicating liquors in any wagon, buggy, automo-
bile, water or air craft, or other vehicle, it shall be his
duty to seize any and all intoxicating liquors found
therein being transported contrary to law. Whenever
intoxicating liquors transported or possessed illegally
shall be seized by an officer he shall take possession of
the vehicle and team or automobile, boat, air or water
craft, or any other conveyance, and shall arrest any
person in charge thereof. Such officer shall at once
proceed against the person arrested under the pro-
visions of this title in any court having competent
jurisdiction; but the said vehicle or conveyance shall
be returned to the owner upon execution by him of a
good and valid bond, with sufficient sureties, in a sum
double the value of the property, which said bond shall
be approved by said officer and shall be conditioned to
return said property to the custody of said officer on
the day of trial to abide the judgment of the court.
The court upon conviction of the person so arrested
shall order the liquor destroyed, and unless good cause
to the contrary is shown by the owner, shall order a
keeping the property, the fee for the seizure, and the
officer making the sale, after deducting the expenses of
keeping the property, the fee for the seizure, and the
cost of the sale, shall pay all liens, according to their
214 TITLE II— SEC. 26 OF ACT
priorities, which are established, by intervention or
otherwise, at said hearing or in other proceeding
brought for said purpose, as being bona fide and as
having been created without the lienor having any
notice that the carrying vehicle was being used or was
to be used for illegal transportation of liquor, and shall
pay the balance of the proceeds into the Treasury of
the United States as miscellaneous receipts. All liens
against property sold under the provisions of this sec-
tion shall be transferred from the property to the pro-
ceeds of the sale of the property. If, however, no one
shall be found claiming the team, vehicle, water or air
craft, or automobile, the taking of the same, with a de-
scription thereof, shall be advertised in some news-
paper published in the city or county where taken, or
if there be no newspaper published in such city or
county, in a newspaper having circulation in the county,
once a week for two weeks, and by handbills posted in
three public places near the place of seizure, and if no
claimant shall appear within ten days after the last
publication of the advertisement, the property shall be
sold and the proceeds after deducting the expenses and
costs shall be paid into the Treasury of the United
States as miscellaneous receipts.
Constitutionality of Law Imposing Forfeiture. — "If
the state, in the valid exercise of the police power, may de-
clare it unlawful and illegal for any person to transport,
ship, or carry whisky by any means whatsoever from any
point without this state to any point within this state, and
from place to place within this state, it necessarily follows
that the state may, in the exercise of its police power, adopt
any means reasonably necessary, and not unduly oppres-
sive upon the individual, to prevent the transportation of
such whisky. Crane v. Cambell, 245 U. S. 304, 38 Sup. Ct.
98, 99, 62 L. Ed. 304. Such liquors cannot reasonably be
brought from without to a point within this state, nor
TITLE II— SEC. 26 OF ACT 215
carried from point to point within the state without the use
of some vehicle or conveyance of some kind or descrip-
tion. The power to prohibit the transportation of liquors
is conceded, at least in this case; and it would seem to fol-
low as a necessary conclusion, that the forfeiture of the
vehicle used in the transportation of such liquor upon the
public highways, private ways, and waters of this state is
a measure reasonably necessary for the accomplishment of
the purpose."
Mack v. Westbrook, 148 Ga. 690, 98 S. E. 339, 341.
See also, Skinner v. Thomas, 171 N. C. 98, 85 S. E
976, L. R. A. 1916E, 338n.
And an act providing that sheriff or arresting officer
''who becomes cognizant of the facts or who finds liquor
in such conveyances or vehicle being illegally transported"
shall seize the same, is not in violation of constitutional
provision as to unreasonable seizure.
Maples v. State (Ala.), 82 So. 183.
And an act as to seizure of vehicles used for transpor-
tation of liquor, is not subject to the objection that it is
unconstitutional, in that no detinue writ may be employed
to retake possession pending forfeiture suit, and that this
is violative of the Constitution, which guarantees that
courts shall always be open and every person shall have a
remedy by due process of law.
Maples v. State (Ala.), 82 So. 183.
The Prohibition Act of Utah confers upon the courts the
power to declare forfeited to the state all automobiles used
for the illegal transportation of intoxicating liquors.
State v. Jenson (Utah), 184 Pac. 179.
As Denying Jury Trial. — A law providing that the
court having jurisdiction of property seized as having been
used in unlawful transportation of intoxicating liquors
shall, without a jury, order a hearing and take evidence and
determine as in civil cases, does not violate the United
States Constitution or Const. Okl. art. 2, § 19, as denying
a jury trial.
One Cadillac Automobile v. State (Okla.), 182 Pac.
227.
216 TITLE II— SEC. 26 OF ACT
Forfeiture of Vehicle Used. — A provision making it a
criminal offense to import distilled spirits punishable by fine
or imprisonment or both, is not a customs law, but a pro-
hibition law enacted under the police power of Congress,
and while the seizure and forfeiture as contraband of spir-
its so imported, though not specifically provided for, is es-
sential to the effective enforcement of the law, the court
cannot impose as an additional punishment the forfeiture
of the vehicle used, under another statute.
United States v. One Ford Automobile (D. C.), 259
Fed. 894.
In the instant case a prior statute provides that when
goods or merchandise are brought into the United States in
violation of or contrary to law, not only the goods so
brought in, but the vehicles used in bringing them in, shall
be condemned and forfeited. But prior to the act of Aug.
10, 1917, the bringing of distilled spirits into the United
States was not a crime unless brought in without payment
of duty. But the Act of Aug. 10, 1917, forbidding their
importation or bringing in under any circumstances no duty
could be imposed and there could be no violation of that
law because it no longer applied, therefore the court holds
that the only applicable law is that of Aug. 10, 1917, and
as the forfeiture of the vehicle in which brought is no part
of the penalty imposed by that act, the vehicle could not
lawfully be confiscated.
United States v. One Ford Automobile (D. C.), 259
Fed. 894.
Right to Trial by Jury. — Proceedings for the seizure
and condemnation of liquor alleged to be unlawfully kept
for sale are not prosecutions for criminal offenses within
the constitutional provision giving a right to trial by jury in
such prosecutions, but are civil proceedings in rent to fix
the status of the property.
State v. Intoxicating Liquor, 82 Vt. 287, 73 Atl. 586.
In a proceeding against intoxicating liquors for their de-
struction, jury trial may be denied where the only person
appearing as defendant admitted that he claimed the liq-
TITLE II— SEC. 26 OF ACT 217
uors and kept them for purposes clearly in violation of the
statute.
State_t/. Certain Intoxicating Liquors (Utah), 177 Pac.
But a proceeding to forfeit, under U. S. Rev. St. § 2140
(Comp. St. 1916, § 4141), an automobile seized on land, on
the ground that it .was used as a means for the introduc-
tion of intoxicating liquor into the Indian country, is one
at law, and the parties are entitled to the usual rights and
remedies incident to such an action, including the right to
trial by jury.
Shawnee Nat. Bank v. United States, 161 C. C A 509
249 Fed. 583.
Construction.— It is a principle of natural law and jus-
tice that statutes will not be held to forfeit property, ex-
cept for the fault of the owner or his agents, unless such a
construction is unavoidable.
Shawnee Nat. Bank v. United States, 161 C. C. A. 509
249 Fed. 583.
A statute imposing a forfeiture should be strictly con-
strued and in a manner as favorable to the person whose
property is to be seized as is consistent with the fair prin-
ciples of interpretation.
United States v. One Cadillac Eight Automobile (D.
C.), 255 Fed. 173.
Thus, in Act March 2, 1917, § 1 (U. S. Comp. St. 1918,
§ 4141a), providing for the forfeiture of automobiles or
other vehicles used in introducing liquor into the Indian
country, "or where the introduction is prohibited by treaty
or Federal statute," the phrase quoted must be limited to
treaties or statutes relating to Indian affairs, to which the
statute solely relates, and cannot be extended to apply to
vehicles used in introducing liquors into prohibition states
in violation of Act March 3, 1917, § 5 (Comp. St. 1918, §
8739a).
United States v. One Buick Automobile (D. C.), 255
Fed. 793.
218 TITLE II— SEC. 26 OP ACT
And in ascertaining the legislative intention relative to
laws prohibiting the manufacture and sale of intoxicating
liquors, and forfeiting property used in such traffic, it will
be considered that forfeitures are not favored in the law.
State v. Jones-Hansen-Cadillac Co. (Neb.), 172 N.
W. 36.
And a law prohibiting the manufacture and sale of in-
toxicating liquors, and providing for the confiscation of
property used in the traffic, will not be construed to forfeit
the property of innocent citizens, unless a legislative intent
is manifest that such forfeiture is necessary for the pres-
ervation of the public health and safety.
State v. Jones-Hansen-Cadillac Co. (Neb.), 127 N.
W. 36.
Under Provision Requiring Liberal Construction. —
In view of Comp. Laws of Utah, 1917, § 5839, requiring
the provisions of the Revised Statutes to be liberally con-
strued, and the Prohibition Law, § 1, requiring liberal con-
struction of the act, under Comp. Laws 1917, § 3359, an
automobile used in the illegal transportation of liquor into
Utah may be seized and forfeited as other things and other
property may be forfeited in accordance with the various
provisions of the Prohibition Law, the rule of ejusdem
generis not applying in the construction of the section.
State v. Davis (Utah), 184 Pac. 161.
Law Not Retroactive. — An automobile used prior to
the enactment of the law authorizing seizure and confisca-
tion for the unlawful transportation of intoxicating liquors,
is not subject to seizure and confiscation therefor.
First Nat. Bank v. State (Okla.), 178 Pac. 670.
Property Liable to Forfeiture. — As said in one case:
"It seems clear and plain from the mere reading of the act
that the kind of property to be summarily dealt with un-
der sections 11 and 12 is the liquor itself, and the articles
necessarily and customarily used in connection therewith
for the sale and consumption thereof, such as the contain-
ers, glassware, bar furniture and fixtures, and the like. It
is equally clear that boats and vehicles, being expressly
TITLE II— SEC. 26 OF ACT 219
named in section 5, are to be disposed of under the terms
of that section, and not otherwise. It may be that a boat
is an implement, within the ordinary definition; and, were
the provisions of section 5 omitted from the act, we might
so define it. But we cannot believe that the framers of the
act, after having provided that a boat or vehicle so used
shall be deemed a nuisance, and be abated as such, intended
again to cover the same subject by the use of the words
'implements, furniture and fixtures,' as used in sections 11
and 12, and thus to provide a wholly different manner for
the disposition thereof, inconsistent with the previous pro-
visions already incorporated in section 5. This court ap-
pears to have already adopted this view. Everett v. Mc-
Culloch, 102 Wash. 51, 172 Pac. 863."
Van Bug Fish Co. v. Herstrom (Wash.), 177 Pac.
334, 335.
Seizure of Money. — A statute, providing that it shall
be the duty of an officer, without warrant, to arrest the
offender and seize the liquor, bars, furniture, fixtures, ves-
sels, and appurtenances thereunto belonging so unlawfully
used * * * does not legally authorize such officer in
making such seizure to seize money.
State v. Certain Appurtenances Used in Sale of In-
toxicating Liquors. 46 Okla. 538, 149 Pac. 130.
Automobiles. — A statute specifying boats, teams,
wagons, and sleds, impliedly excludes automobiles.
Shawnee Nat. Bank v. United States, 161 C. C. A. 509,
249 Fed. 583, 584.
"Prior to the enactment of chapter 188 of the 1917 Ses-
sion Laws of the state of Oklahoma, there was no legal au-
thority for the seizure and confiscation of an automobile
used for the unlawful transportation of intoxicating liq-
uors."
State Nat. Bank v. State (Okla.), 172 Pac. 1073.
But under Nebraska Laws 1917, c. 187, if an automobile
used in the unlawful transportation of liquor be declared a
nuisance, the interest of the owner or mortgagee thereof,
220 TITLE II— SEC. 26 OF ACT
who has notice of its unlawful use, may be sold and the
proceeds applied as provided by section 33.
State v. Jones-Hansen-Cadillac Co. (Neb.), 172 N.
W. 36.
Introducing Liquor into Indian Country — Forfei-
ture of Vehicle Used.— Under Rev. St. § 2140, Act March
1, 1907 (Comp. St. §§ 4141, 4142), and supplementary
acts, a special enforcement officer of the Indian Bureau has
authority to seize and subject to forfeiture proceedings an
automobile containing liquor which he has reason to sus-
pect is about to be introduced into the Indian country or
among Indians, where its introduction is prohibited by law
or treaty, although at the time of seizure it is not within
the Indian country.
United States v. One Ford Five-Passenger Automobile
(D. C.), 259 Fed. 645.
Automobile as "Appurtenance." — An automobile
seized July 21, 1915, while unlawfully conveying intoxicat-
ing liquors in presence of an officer having power to serve
criminal process, was not subject to seizure by him and
forfeiture to the state under Rev. Laws 1910, § 3617, as it
was not an "appurtenance" within that section.
Sharpe v. State (Okla.), 181 Pac. 293.
One Cadillac Automobile v. State (Okla.), 172 Pac. 62.
Lebrecht v. State (Okla.), 172 Pac. 65.
State v. One Packard Automobile (Okla.), 172 Pac.
66.
One Moon Automobile v. State (Okla.), 172 Pac. 66.
Stolen Automobile. — Where an automobile was stolen
and thereafter condemned because transferring intoxicat-
ing liquors and sold, the true owner, who had no knowledge
of its illegal use, and who established his ownership and
the theft, might recover it in trover against purchaser, as
purchaser got no better title than the possessor had at the
seizure.
Smith v. Spencer-Dowler Co. (Ga. App.), 100 S. E.
651.
See also, State v. Davis (Utah), 184 Pac. 161.
TITLE II— SEC. 26 OF ACT 221
Vehicle Used — Owner's Knowledge — Subject to
Seizure. — "When, with the knowledge of the owner, any
such vehicle is used on any of the public roads or private
ways of this state in conveying any liquors or beverages,
the sale or possession of which is prohibited by law, the ve-
hicle or conveyance is subject to seizure and sale in the
manner prescribed regardless of what might have been the
purpose and intent of the owner or operator of the ve-
hicle at the time it was so employed. Under the plain and
explicit terms of the act itself, the fact that the liquors or
beverages thus conveyed were for the personal use of the
owner or operator of the vehicle would not alter the rule,
but the provision is that the mere use of a vehicle, wherein
and whereby any of the enumerated liquors are conveyed
with the knowledge of the owner, renders the vehicle sub-
ject to seizure and sale, regardless of what may have been
the reason in thus using the vehicle, or what may have been
the purpose as to the use or disposition of the liquors."
Crapp v. State (Ga. App.), 98 S. E. 174.
Seizure of Liquor in Possession of Common Car-
rier.— Under a law making it unlawful to have in posses-
sion any intoxicating liquors, and providing that no prop-
erty right shall exist in such liquors, but that the same are
forfeited and subject to seizure and destruction, liquors in
possession of a common carrier although in course of ship-
ment in interstate commerce, are subject to seizure and for-
feiture.
Northern, etc., Co. v. Brenneman (C. C. A.), 259 Fed.
514.
Proceeding Is in Rem. — Although the owner is named
in the petition, and process is prayed against him, the judg-
ment prayed is, however, one solely in rem, for the con-
demnation of the automobile.
Mack v. Westbrook, 148 Ga. 690, 98 S. E. 339, 343.
Proceedings to confiscate intoxicating liquors are pro-
ceedings in rem governed by the rules of civil procedure.
State v. Great Northern R. Co.. 98 Wash. 197, 167 Pac.
103.
222 TITLE II— SEC. 26 OF ACT
But in another case it is said that forfeiture proceedings
against the intoxicating liquors only are criminal cases gov-
erned by the rules of criminal law.
Perro v. State, 113 Me. 493, 94 Atl. 950.
Requirements of Law to Be Strictly Observed.—
"A proceeding to condemn an automobile used on a public
road or private way of this state in conveying liquors or
beverages, the sale or possession of which is prohibited by
law (Ga. Laws Ex. Sess. 1917, p. 16, § 20), is summary
in its nature, and the provisions of the act affording this
remedy must be strictly complied with."
Phillips v. Stapleton (Ga. App.), 97 S. E. 885.
"Where there has been a signal failure to comply with
the provisions of chapter 6513 of the Laws of Florida
(Acts 1913), requiring an information to be filed within
24 hours after the seizure of intoxicating liquors, which
have been shipped into a county in which the sale of such
liquors is prohibited by law, as well as a failure to comply
with still other provisions of such chapter, a decree order-
ing the forfeiture and destruction of such liquors will be
reversed."
Lippman v. State, 72 Fla. 428, 73 So. 357.
Grounds for Seizure. — There must be something more
than mere suspicion to justify the seizure and confiscation
of intoxicating liquors while in possession of a common
carrier as an interstate shipment.
State v. Great Northern R. Co., 98 Wash. 197, 167
Pac. 103.
Legal Seizure Essential to Jurisdiction. — In Maine a
legal seizure is essential to jurisdiction of a proceeding in
rem by libel for the forfeiture of intoxicating liquors, con-
taining vessels, and of vehicles.
State v. Ford Touring Car No. 1, 440,316, 117 Me. 232,
103 Atl. 364.
That an officer has possession of spirituous liquors taken
from the owner who kept them for legal sale does not
TITLE II— SEC. 26 OF ACT 223
alone authorize their condemnation, but they must have
been legally seized pursuant to a lawful warrant.
State v. Spirituous Liquors, 75 N. H. 273, 73 Atl. 169.
State Nat. Bank v. State (Okla.), 172 Pac. 1073.
Liability to Forfeiture Although Wrongfully Seized.
—Liquors kept in violation of law are none the less liable
to forfeiture because the possession thereof is wrongfully
or illegally obtained by an officer.
State v. Schoppe, 113 Me. 10, 92 Atl. 867.
Seizure without Warrant. — An officer who seizes
property without a warrant is held to a strict compliance
with all the requirements of law authorizing such proceed-
ings.
State v. Schoppe, 113 Me. 10, 92 Atl. 867.
Duty of Officers. — Under the Georgia law where offi-
cers found a barrel of whisky under defendant's stable and
two other barrels buried near by, it was their duty to seize
the same to be forfeited to the state.
Thornton v. Skelton (Ga.), 99 S. E. 299.
When Brought in Name of State. — "The proceeding
authorized by section 20 of the act in question (Ga. Acts
Ex. Sess. 1917, p. 16) is one in rent, against the offending
thing, and not against the offending owner. It is not de-
cided that the solicitor of the court having jurisdiction had
not legal capacity to institute condemnation proceedings in
his name as solicitor; but it is suggested that the proceed-
ing, in the nature of an information should properly be
brought in the name of the state."
Mack v. Westbrook, 148 Ga. 690, 98 S. E. 339, 340.
Petition and Amendment Thereof. — A petition,
headed "State of Georgia, Whitfield County," directed "To
the Superior Court of Said County," and regularly filed in
the office of the clerk of that court, which contained the
following paragraph : "The above-described car is the prop-
erty of Tom Burgan, of Catoosa county, Georgia, and was
being used by him, and by others with his knowledge and
224 TITLE II— SEC. 26 OF ACT
consent, in the transporting of intoxicating liquors over
and through the public highways of said county in viola-
tion of law," was properly amended by inserting after the
word "county," in the latter part of the paragraph, the
words "of Whitfield." Perry v. Mulligan, 58 Ga. 479; Hall
v. Mobley, 13 Ga. 318; Cowart v. Young, 74 Ga. 694; Mur-
phy v. Peabody, 63 Ga. 522. In the last-named case Judge
Bleckley says in the opinion (page 524) : "The rule of
amendment is as broad as the doctrine of universal salva-
tion."
Burgan v. State (Ga. App.), 99 S. E. 636.
Petition — Amendment — Demurrer. — After petition, in
proceeding to condemn car unlawfully used to transport liq-
uors, was amended so as to charge its use on highways of
county of Whitfield, a demurrer filed by defendant, alleg-
ing that jurisdiction is in superior court of Catoosa county,
because petition before amendment alleged that it was seized
while used in that county, was properly stricken.
Burgan v. State (Ga. App.), 99 S. E. 636.
And the special plea to the jurisdiction was also properly
stricken, after the petition was so amended.
Burgan v. State (Ga. App.), 99 S. E. 636.
Findings of Fact — Necessity. — In a proceeding for
the forfeiture of intoxicating liquors, libeled by the state
and claimed by the carrier in whose possession they were
found, specific findings of fact are unnecessary to support
a judgment of forfeiture; such judgment being a finding
for the state upon all the issues of fact necessary to sup-
port the libel.
State v. Intoxicating Liquors, 112 Me. 138, 91 Atl. 175.
Burden of Proof. — If action to defeat any property
rights in and destroy certain intoxicating liquors is tried
as an action in rem, plaintiffs have the burden of proving
the allegations of forfeiture.
Noble v. People (Colo.). 177 Pac. 970.
Proof Requisite. — In a proceeding for the seizure and
condemnation of intoxicating liquors alleged to have been
TITLE II— SEC. 26 OF ACT 225
kept for unlawful sale, the state is not required to prove the
keeping for sale beyond a reasonable doubt, but only by a
fair preponderance of the evidence.
State v. Intoxicating Liquor, 82 Vt. 287, 73 Atl. 586.
Although a statute provides that there shall be no prop-
erty right in liquors kept or used for the purpose of vio-
lating any provision of the act, the facts constituting for-
feiture must be made to appear in court, or in some legal
manner or proceeding and cannot be declared upon default
without any evidence.
Noble v. People (Colo.), 177 Pac. 970.
In this case the court said: "In McConathy v. Deck, 34
Colo. 461, 466, 83 Pac. 135, 4 L. R. A., N. S., 358n, 7 Ann.
Cas. 896, and the many citations and quotations therein, the
principle is announced that forfeitures take place imme-
diately, under the statute, without any proceeding to de-
clare a forfeiture, upon the happening of the event; still,
in all forfeiture cases that we have been able to examine,
the facts constituting the forfeiture were made to appear in
court before the forfeiture could be pronounced or made
effectual. The owner of the property must be afforded the
means of demanding and enforcing his constitutional right
to defend and protect his property against forfeiture. In
all cases where the rule has been announced, it has been
in court where the owner had the opportunity to defend his
property rights. If we concede section 20 of the statute
warrants such a proceeding, the property rights of defend-
ants could only be defeated by proof on the trial of facts
constituting a forfeiture. A forfeiture, under the circum-
stances, could not be declared upon default without any
evidence."
Noble v. People (Colo.), 177 Pac. 970, 974.
Presumptions. — When intoxicating liquors have been
found illegally in an automobile used for their transporta-
tion it is prima facie evidence that the car was being used
illegally, and one desiring to recover the car must establish
by a preponderance of the evidence, not beyond a reason-
226 TITLE II— SEC. 26 OF ACT
able doubt, the fact of his ownership, and that he had no
knowledge of the illegal use.
State v. Davis (Utah), 184 Pac. 161.
Return of Officer Not Evidence. — Where an automo-
bile was seized by an officer without warrant as a thing
used in violation of the prohibition laws, such return is of
itself incompetent as evidence to prove any unlawful char-
acteristics thereof, or to establish facts which distinguish
it or its use as illegal or prohibited at the time of its sei-
zure.
Cox v. State (Okla.), 160 Pac. 895.
Credibility of Witnesses. — In search, seizure, and for-
feiture proceedings, the credibility of the witnesses is pecu-
liarly within the province of the trial court, which is not
bound by the statements of defendants, particularly where
the inferences deducible from the undisputed facts were
contrary to such statements.
State v. Jenson (Utah), 184 Pac. 179.
Interest of Mortgagee. — Under a statute authorizing
the seizure of a vehicle used in conveying, concealing or
removing intoxicating liquors, and providing on conviction
of the defendant that he shall forfeit and lose all right,
title and interest in and to the property seized and provid-
ing for the sale of the property seized when no person is
arrested, and for distribution of the proceeds of the sale,
where the owner of an automobile is arrested, the interest
of a mortgagee who had no knowledge of the use being
made of the machine is not forfeited.
Skinner v. Thomas, 171 N. C. 98, 87 S. E. 976, L. R.
A. 1916E, 338n.
Shawnee Nat. Bank v. United States, 161 C. C. A. 509,
249 Fed. 583.
Maples v. State (Ala.), 82 So. 183.
Presumption. — Where, in a proceeding under Rev. St.
§ 2140 (U. S. Comp. St. 1916, § 4141), to forfeit an auto-
mobile on the ground that it was used as a means for the
introduction of intoxicating liquor into Indian country, the
court found that a chattel mortgagee had a valid lien, but
TITLE II— SEC. 26 OF ACT 227
that it was inferior to the rights of the United States un-
der the forfeiture proceeding, it must be presumed, in ab-
sence of evidence, that the mortgagee had nothing to do
with the introduction of the liquor into Indian country.
Shawnee Nat. Bank v. United States, 161 C. C. A. 509,
249 Fed. 583.
But a provision that automobiles used in introducing in-
toxicants in violation of law, whether used by the owner or
other person, shall be subject to forfeiture applies to inter-
est of mortgagee, though machine is used contrary to pro-
vision of mortgage.
United States v. One Seven Passenger Paige Car (D.
C.), 259 Fed. 641.
Other Liens on Property Seized.— In a statutory pro-
ceeding to condemn or confiscate a vehicle employed in the
illegal transportation of liquor, contrary to the provisions
of law where the owner of the vehicle had previously sold
it to the party engaged in the illegal transaction, but re-
served title to it until full payment of the purchase price,
part of which purchase price was represented by a reten-
tion of title note duly recorded, and the remainder of
which was by agreement to be covered by a similar note, in
case the vendee failed to pay the remainder on or before
a date specified and where the evidence disclosed that the
vendors were wholly without knowledge of the illegal in-
tent or acts of the vendee, and the property was seized in
behalf of the state before the agreed time when the second
note reserving title was to be executed in the event that
the amount to be covered thereby had not been previously
paid, the owner would be entitled to the full amount of the
purchase money due as might appear from the evidence, in-
cluding both the amount covered by the note actually given
and the note agreed to be given.
Whites v. State (Ga. App.), 98 S. E. 171.
Where an automobile is sold on installments, if the ven-
dor or his assignee has no knowledge or information of the
car's intended use in the illegal transportation of intoxi-
cating liquors he is entitled to reclaim it when seized by the
sheriff for forfeiture.
State v. Davis (Utah), 184 Pac. 161.
228 TITLE II— SEC. 26 OF ACT
Want of Recordation Does Not Defeat. — In a pro-
ceeding to condemn an automobile illegally employed in the
transportation of intoxicating liquors, where the owner had
conditionally sold it to the party engaged in the illegal trans-
action under a contract reserving title until payment, the
mere fact that such contract had not been recorded does not
defeat the seller's claim of title.
Armington & Sons v. State (Ga. App.), 100 S. E. 15.
Want of Knowledge or Consent of Owner as De-
fense.— Where undisputed facts showed that neither taxi-
cab owner nor chauffeur knew that passenger was using car
to transport intoxicating liquor, and that the owner had
not been negligent in employing the chauffeur, and had di-
rected him not to use the car for such illegal purposes, the
court could not order the car forfeited and destroyed un-
der a law providing for forfeiture of vehicles used in vio-
lating the liquor laws.
State v. Southern Exp. Co. (Ala.), 75 So. 343.
The Alabama act does not contemplate the condemna-
tion and selling of property of those who did not aid or as-
sist in the unlawful transportation of liquors or who were
not chargeable with notice or knowledge that their prop-
erty was to be used for such purpose ; the words "aided and
assisted" implying either knowledge on the part of the per-
son assisting or such negligence as to charge him with
knowledge that his property is to be used in violation of
law.
State v. Hughes (Ala.), 82 So. 104.
Acquittal of Defendant in Criminal Prosecution as
Defense. — Acquittal of defendant in a prosecution for
having liquors unlawfully in his possession, had no bearing
in a subsequent action by the state under such act looking
only to the destruction of the liquor.
State v. Certain Intoxicating Liquors (Utah), 177 Pac.
235.
But it has also been held that when a defendant has been
indicted, convicted, and punished under Act Aug. 10, 1917,
TITLE II— SEC. 26 OF ACT 229
§ 15 (Comp. St. 1918, § 3115^1), for importing distilled
spirits in violation of its prohibition, he cannot be pro-
ceeded against in rem for forfeiture of the vehicles used in
bringing in such spirits, under Rev. St. § 3062 (Comp. St.
§ 5764), but the spirits, being unlawfully in the United
States, may be seized and condemned.
In re Food Conservation Act (D. C.), 254 Fed. 893.
Verdict of Acquittal as Evidence. — Where the state
institutes an action to condemn an automobile under sec-
tion 20 of the act of 1917 (Ga. Laws Ex. Sess. 1917, p.
16), providing for the forfeiture of any vehicle in which
spirituous liquors are carried on any public road or private
way in this state, and the action is resisted by the interpo-
sition of a claim, if the defendant was a person who had
been indicted and acquitted of a penal charge based on the
same transaction, the verdict of acquittal founded on his
illegal possession of the the liquor seized with the automo-
bile is admissible in support of the claim. Where the claim
is interposed by a third person, the general rule is that the
verdict of acquittal, though based on the same transaction,
is inadmissible.
Duncan v. State (Ga.), 99 S. E. 612.
S. C, 100 S. E. 38.
Error in Striking Defense. — Where the court erred in
striking the defense filed by claimant in a proceeding to
condemn an automobile, the further proceedings were
nugatory.
Griffin v. Smith (Ga. App.), 99 S. E. 386.
Custody Pending Hearing. — \Vhen the law did not
provide for notice and hearing before destroying property,
but the driver and the owner were nevertheless notified that
a hearing would be had before the police judge, to show
cause why the taxicab should not be adjudged forfeited
and ordered destroyed, pending such determination, the ve-
hicle was rightfully in the custody of the officers, and not
the subject of replevin by its owner.
Allison v. Hern, 102 Kan. 48, 169 Pac. 187.
Property seized by an officer pursuant to a warrant is-
sued in proceedings against an unlicensed drinking place,
230 TITLE II— SEC. 26 OF ACT
is, after seizure, in the custody of the law, and the posses-
sion thereof by the officer cannot be disturbed until the pro-
ceedings are terminated and an order of the court dispos-
ing of the property is made and served upon him, or in
some way brought to his official attention. Until such or-
der is made by the court, neither an action for the posses-
sion, for the conversion or for the loss of the property by
the negligence of the officer, can be maintained by the
owner of the property or by any person claiming an inter-
est therein.
Sponnick v. Duluth, 123 Minn. 528, 143 N. W. 970.
Intervention by Claimant. — In proceedings to con-
demn an automobile, the owner has the right to intervene
and file a "defense."
Griffin v. Smith (Ga. App.), 99 S. E. 386.
Necessary Allegations. — The allegation by a claimant
to intoxicating liquors which had been seized, that he was
interested in the property seized is defective for failure to
show that the claimant had such an interest as entitled him
to defend.
Toole v. State, 170 Ala. 41, 54 So. 195.
Burgan v. State (Ga. App.), 99 S. E. 636.
Demurrer Thereto — Effect. — Demurrer to interven-
tion in seizure of a shipment of liquor admits the facts al-
leged showing the shipment was lawful.
State v. Pensacola, etc., S. S. Co. (Ala.), 75 So. 892.
Affidavit and Bond. — In proceedings to condemn an au-
tomobile instituted under the Georgia law, the owner is not
required to make affidavit and give bond as in claim cases.
Griffin v. Smith (Ga. App.), 99 S. E. 386.
Bailee for Hire as Claimant. — A claimant, who is
bailee for hire of the liquors, has special title thereto which
entitles him to possession of the liquors against a wrong-
ful seizure.
State v. Intoxicating Liquors, 112 Me. 393, 92-Atl. 326.
TITLE II— SEC. 26 OF ACT 231
Intervention by Carrier.— A carrier which has law-
fully assumed the delivery of an interstate shipment of liq-
uor, authorized by law, may intervene in a seizure thereof
as a "person claiming any right, title or interest" therein.
State v. Pensacola, etc., S. S. Co. (Ala.), 75 So. 892.
Manager of Bottling Works— Authority to Appear
and Claim for Owner. — The statute authorizing the owner
to make claim for liquors under seizure and secure their
release contemplates an appearance by the real owner per-
sonally or by a properly authorized representative, and
hence the manager of bottling works, in which liquors,
when seized, were in store awaiting the time when, aug-
mented by further orders and collections, they should be
shipped to their real owners outside the state, was not en-
titled to claim the liquors, as he was not such a party in
interest as the law contemplated nor a properly authorized
agent of such a party.
State v. Intoxicating Liquors, 112 Me. 220, 91 Atl. 947.
Burden of Proof on Claimant. — If action to defeat
property rights in and to destroy certain intoxicating liq-
uors is tried as a replevin suit, the parties claming title to
the liquors must recover upon the strength of their own
title.
Noble v. People (Colo.), 177 Pac. 970.
Burden of Proof as to Right of Claimant to Custody.
—Under Maine Rev. St. c. 29, § 51, providing that upon
hearing of a claim for intoxicating liquors seized by the
state, the magistrate, if satisfied that the liquors were not
kept or deposited for unlawful sale, and that the claimant
is entitled to custody thereof, shall give him an order for
the return of the liquors, the claimant is bound to show,
not only that the liquors were not kept or deposited for un-
lawful sale, but that he is entitled to their custody; the
burden of proving that issue being on the claimant.
State v. Intoxicating Liquors, 112 Me. 138, 91 Atl. 175.
Injunction by Claimant. — "In Gunn v. Atwell, 148 Ga.
137, 96 S. E. 2, it appeared that a certain automobile in the
232 TITLE II— SEC. 26 OF ACT
posssession of one Jenkins, and in which intoxicating liquors
were found, was seized by police officers of the city of Ma-
con, and the seizure was reported to the solicitor of the
city court of Macon, who instituted condemnation proceed-
ings under section 20 of the prohibition laws of this state,
approved March 28, 1917. (Acts Ex. Sess. 1917, p. 16.)
Atwell filed an equitable petition in which it was alleged
that Jenkins was neither the owner nor a lessee of the car,
but that Atwell was the owner thereof and had no knowl-
edge that Jenkins had used the automobile for the pur-
pose of transporting intoxicating liquors ; and Atwell prayed
that the officers be required to surrender the automobile,
and for injunction and general relief. It was ruled, in the
case cited, that section 20 of the act supra, provides an ade-
quate remedy at law for an adjudication of all the rights
of the defendant in error; and therefore there was no
ground for equitable jurisdiction. The facts in the instant
case bring it clearly within that ruling ; and there was no error
in refusing to order the sheriff of the county to deliver
the possession of the car to the plaintiff, and to enjoin
the pending condemnation proceedings in the city court;
the plaintiff having an adequate remedy at law for the ad-
judication of the rights claimed by her in the petition for
injunction."
Nesmith v. Martin (Ga.), 98 S. E. 551.
Condemnation of Excess Quanitity as Contraband. —
The provision of a law prohibiting the possession of excess
quantities of intoxicating liquors, operates in rem so that
any such excess quantity is contraband and subject to con-
demnation, regardless of the finding as to the owner.
State v. Martin, 92 Wash. 366, 159 Pac. 88.
Order of Court Necessary for Destruction. — Under
Rev. St. U. S. § 2140 (U. S. Comp. St. § 4141), an officer
of the United States had no right to destroy at a point in
Kansas intoxicating liquors which had been seized from
costody of railroad, on ground they were to be shipped into
adjacent Indian territory, without a valid order of court
authorizing him so to do, but his seizure, if he had reason
to suspect or was informed the liquor was about to be in-
TITLE II— SEC. 26 OF ACT 233
troduced into Indian territory, may have been valid, despite
its subsequent illegal destruction.
Danciger v. Atchison, etc., R. Co. (Mo.), 212 S. W. 5.
Order for Destruction — Force. — The provision of the
judgment of conviction against plaintiff, of receiving liquor
in greater quantity than allowed by law, that the officer, in
whose possession it was under a seizure, destroy it, cannot
be avoided in an action against the officer to recover it.
Felia v. Belton, 170 N. C. 112, 86 S. E. 999.
Unlawful Seizure of Liquor from Druggist— Return.
See ante, under § 8.
Restraining Order against Return of Automobile.—
Where intoxicating liquor and an automobile were seized
and the liquor destroyed, the obtaining of an ex parte order,
restraining the sheriff from returning the automobile until
a full hearing was had, did not deprive the owner of prop-
erty without due process of law; such order simply holding
matters in statu quo.
State v. Raph (la.), 168 N. W. 259, 260.
Appeal and Error. — Where the trial court found that
a chattel mortgagee had a valid lien on an automobile,
sought to be forfeited because used by the mortgagor to
carry intoxicating liquors into Indian country, but declared
the lien inferior to the claim of the United States, the mort-
gagee was entitled to raise on such record the question
whether the automobile was subject to forfeiture, as well
as whether its interest could be forfeited, as the findings
did not support the judgment.
Shawnee Nat. Bank v. United States, 161 C. C. A. 509,
249 Fed. 583, 584.
TITLE II— SEC. 29
Penalties — For Sale or Manufacture — For Violating Per-
mit, False Records, Reports, Affidavits, etc.
SEC. 29. Any person who manufactures or sells liq-
uor in violation of this title shall for a first offense be
fined not more than $1,000, or imprisoned not exceed-
ing six months, and for a second or subsequent offense
shall be fined not less than $200 nor more than $2,000
and be imprisoned not less than one month nor more
than five years.
Any person violating the provisions of any permit,
or who makes any false record, report, or affidavit re-
quired by this title, or violates any of the provisions of
this title, for which offense a special penalty is not pre-
scribed, shall be fined for a first offense not more than
$500; for a second offense not less than $100 nor more
than $1,000, or be imprisoned not more than ninety
days; for any subsequent offense he shall be fined not
less than $500 and be imprisoned not less than three
months nor more than two years. It shall be the duty
of the prosecuting officer to ascertain whether the de-
fendant has been previously convicted and to plead the
prior conviction in the affidavit, information, or indict-
ment. The penalties provided in this Act against the
manufacture of liquor without a permit shall not ap-
ply to a person for manufacturing nonintoxicating
cider and fruit juices exclusively for use in his home,
but such cider and fruit juices shall not be sold or de-
livered except to persons having permits to manufac-
ture vinegar.
Making Breach of Act a Felony — Constitutionality.
— The provision in the act passed by the General Assembly
TITLE II— SEC. 29 OF ACT 235
of Georgia at its extraordinary session held in March, 1917,
and approved March 28, 1917 (Acts Ex. Sess. 1917, 'p. 7)',
entitled "An act to amend and supplement the prohibition
laws of this state," etc., which declares that any one who
distills, manufactures, or makes alcoholic or spirituous liq-
uor, or malted liquor any part of which is alcoholic, within
this state, shall be guilty of a felony, is not unconstitutional
as violating the due process clause of the Fourteenth
Amendment to the Constitution of the United States.
Delaney v. Plunkett, 146 Ga. 547, 91 S. E. 561 L R
A. 1917D, 926n, Ann. Cas. 1917E, 685.
Yaughan v. State, 148 Ga. 517, 97 S. E. 540.
Right to Create Criminal Offense.— "The legislative
act making it a crime 'for any person * * * ' to keep a
place with the intent of or for the purpose of manufactur-
ing, selling, bartering, giving away, or otherwise furnish-
ing, any spirituous, vinous, fermented or malt liquors, or
compounds whatever, * * * is not condemned by the
constitutional provisions guaranteeing due process of law
and the equal protection of the law."
Proctor v. State (Okla. Cr. App.), 176 Pac. 771.
Construction — Plural as Including Singular Number.
— The words "violations" and "provisions" contained in the
first section of the act providing for punishment for per-
sistent violators of the prohibitory liquor law, include the
singular number of the words mentioned.
State v. Watson, 92 Kan. 983, 142 Pac. 956.
Abatement of Nuisance and Personal Punishment.
—It clearly is legislative intent as expressed in one section
of a law to provide for two penalties, one the abatement of
the offending premises, the other punishment of the offend-
ing person, leaving the character and the extent of the pun-
ishment against the offending person to the subsequent sec-
tion.
State v. Clancy, 97 Wash. 410, 166 Pac. 778.
TITLE H— SEC. 32
Trial.
I. Indictment, Information and Warrant.
1. Definitions.
2. Specification of Offense.
3. Averment of Scienter and Intent.
4. Requisite Certainty.
5. Clerical Errors and Verbal Inaccuracies.
6. Surplusage.
7. Statutory Language.
8. Bill of Particulars.
9. Negative Averments.
10. Misjoinder, Duplicity, etc.
11. Averments of Place.
12. Averments of Time.
13. Averments of Quantity and Price.
14. Averments of Names.
15. Averments of Kind of Liquor.
16. Averments of Intoxicating Character.
17. Averments of Prior Offenses.
18. Indictments for Special Offenses.
19. Amendments.
n. Arrest.
Hi. Defenses.
IV. Jurisdiction.
V. Continuance.
VI. Election between Offenses Charged.
VII. Argument of Counsel.
Vni. Misconduct of Court or Officers.
IX. Jury.
X. Instructions.
XI. Verdict.
XII. Arrest of Judgment.
XIII. New Trial.
XIV. Sentence and Punishment.
XV. Appeal and Error.
XVI. Costs and Expenses.
For "Evidence," see Sec. 34, post.
TITLE II— SEC. 32 OF ACT 237
I. Indictment, Information and Warrant.
SBC. 32. In any affidavit, information, or indictment
for the violation of this Act, separate offenses may be
united in separate counts and the defendant may be
tried on all at one trial and the penalty for all offenses
may be imposed. It shall not be necessary in any affi-
davit, information, or indictment to give the name of
the purchaser or to include any defensive negative
averments, but it shall be sufficient to state that the act
complained of was then and there prohibited and un-
lawful, but this provision shall not be construed to
preclude the trial court from directing the furnishing
the defendant a bill of particulars when it deems it
proper to do so.
1. DEFINITIONS.
"Intoxicated." — The word intoxicated in an indict-
ment charging a violation of a statute providing that no per-
son shall knowingly sell intoxicating liquor to any intoxi-
cated persons, means a materially changed condition pro-
duced by the immoderate or excessive use of intoxicants as
contrasted with normal condition and conduct.
O'Donnell v. Commonwealth, 108 Va. 882, 62 S. E. 373.
Oath to Warrant or Complaint.
The law does not require the state to disclose in the first
instance that the prosecuting officers in a liquor prosecution
had notice or knowledge of the offense when the complaint
was sworn to.
State v. Smith, 96 Kan. 320, 150 Pac. 640.
Under the Alabama statute (Acts 1915, p. 32, § 32), pro-
viding that, when prosecution for violation of the prohibi-
tion law is begun by affidavit, as there authorized, it may
continue, in whatever court trial shall be had, on such affi-
davit, the solicitor, on appeal of the case from the county
court to circuit court, need not file a complaint or brief
statement of the case, as required by Code 1907, § 6730, on
such appeal in other misdemeanor cases.
Cockran v. State (Ala.), 82 So. 560.
Walker v. State (Ala. App.), 81 So. 179.
238 TITLE II— SEC. 32 OF ACT
2. SPECIFICATION OF OFFENSE.
Under a statute requiring the indictment to state the of-
fense with a degree of certainty that will enable the court
to pronounce proper judgment, an indictment to support a
judgment of conviction must aver every fact necessary to
an affirmation of guilt, and the statement of bald conclu-
sions will not suffice.
Holt v. State (Ala. App.), 78 So. 315.
Thus where the law makes it an offense to transport for
sale ardent spirits, or to advertise for sale or to aid in pro-
curing ardent spirits, or to act as agent or employee in cer-
tain instances, but without specifying the facts constituting
these separate offenses, an indictment failing to set forth
the acts done constituting these offenses is insufficient.
Pine v. Commonwealth, 121 Va. 812, 93 S. E. 652, 653.
3. AVERMENT OF SCIENTER AND INTENT.
An information, charging the importation of intoxicat-
ing liquors in violation of law, is not defective because not
charging that defendant knew the liquor was intoxicating.
Balfe v. People (Colo.), 179 Pac. 137.
" 'We see no force,' said the court, 'in the objection that it
was not charged that the accused knew that the liquor was
intoxicating. The only case cited in its support is from
Maine, where the offense was denned as "knowingly" trans-
porting, etc.' "
Balfe v. People (Colo.), 179 Pac. 137, 138.
An indictment under a statute charging that accused's
dwelling house was a place where intoxicants were illegally
kept, sold, given away, etc., need not allege in terms that he
knew, or consented to the prohibited acts.
State v. Arsenault, 106 Me. 192, 76 Atl. 410.
But under a statute making it an offense to transport
or deliver liquor to persons in dry territory or to minors, a
carrier transporting or delivering such liquor must know
that the consignee came within the prohibited class, and
TITLE II— SEC. 32 OF ACT 239
an indictment under such section is fatally defective, if
it does not charge knowledge on the part of the carrier.
Adams Exp. Co. v. Commonwealth, 177 Ky. 449 197 S
W. 957.
An information which alleges that the defendant had in
his possession intoxicating liquors, and which does not allege
generally an intention to violate the provisions of the pro-
hibitory law, or specifically allege an intention to sell, bar-
ter, give away and otherwise furnish such liquors, is too
indefinite to charge any offense and a demurrer thereto
should have been sustained.
Park v. State, 120 Okla. Cr. App. 302, 155 Pac. 494.
An indictment against a physician for wrongfully issu-
ing a prescription for liquor charging that accused did
unlawfully make out and issue to M. a prescription for
intoxicating liquor, and for a compound of which intoxicat-
ing liquor formed a part, to be used otherwise than for
medicinal purpose, was in the language of the statute, and
sufficiently charged that the prescription was not issued
with the intent that the liquor should be used for medicinal
purposes.
State v. Bates, 168 Mo. App. 365, 127 S. W. 79.
An information under a statute making it an offense to
issue a prescription for intoxicating liquors to be used other-
wise than for medicinal purposes, is insufficient as not con-
necting its issuance with the purpose of the liquor's use;
it charging merely the issuance of the prescription which
is set out and constitutes the end of the charge against the
physician, and then starting off with a separate paragraph
and a new sentence, to the effect that said liquors were to
be used otherwise than for medicinal purposes, and this not
charging defendant with that intent, but covering only the
purpose of the person who got the prescription.
State v. Bradford (Mo. App.), 195 S. W. 523.
A complaint that defendant willfully and unlawfully trans-
ported intoxicating liquors sufficiently charges a wrongful
intent.
Ex parte Ahart, 172 Cal. 762, 159 Pac. 106.
240 TITLE II— SEC. 32 OF ACT
See McNeal v. State (Okla. Cr. App.), 179 Pac. 943,
944, to effect that it is not necessary, in charging un-
lawful transportation of whisky, to allege that it is
being conveyed for an unlawful purpose, not for the
proof to so show.
See Maynes v. State, 6 Okla. Cr. App. 478, 119 Pac. 644.
4. REQUISITE CERTAINTY.
Indictments for the sale of intoxicating liquors must be
drawn with such a degree of legal certainty as to identify
the particular transaction complained of, so that the court
* may judge whether the facts alleged are sufficient to inform
the accused of what charge he is called on to meet, and to
enable him to plead the judgment in bar of a second prose-
cution.
State v. Muller, 80 Wash. 368, 141 Pac. 910.
5. CLERICAL ERRORS AND VERBAL INACCURACIES.
An indictment charging a violation of the law prohibiting
the sale of intoxicating liquors in prohibition territory,
omitting the letter "i" in the middle of the v/ord "intoxicat-
ing," when first used, held not open to attack.
Bird v. State (Tex. Cr. App.), 206 S. W. 844.
Where an information charged the maintenance of a nui-
sance in a frame building on a location sufficiently described,
and an amended information recited that the nuisance was
maintained in a concrete building, the location being ex-
actly the same, the misdescription of the materials out of
which the building was constructed did not prejudice the de-
fendant's rights.
State v. Berger, 97 Kan. 366, 155 Pac. 40.
Sufficiency of Petition for Penalty. — A petition to re-
cover penalty for violation of a statute as to delivery by
carrier of intoxicating liquors in prohibition territory, al-
leging that "law prohibiting sale of spirituous, vinous and
malt" was in force at time and place of alleged delivery is
not rendered insufficient by omission of word "liquors,"
when context enables court to supply it.
Southern Exp. Co. v. Commonwealth, 177 Ky. 767, 198
S. W. 207.
TITLE II— SEC. 32 OF ACT 241
6. SURPLUSAGE.
Under a state law allowing registered druggists to sell for
certain purposes, allegations in an information charging ac-
cused with being a registered druggist and selling for a pro-
hibited purpose may be rejected as surplusage, since they
do not identify the crime.
State v. Bartow, 95 Wash. 480, 164 Pac. 227.
An indictment charging that accused unlawfully used his
dwelling house for the illegal keeping and sale of intoxi-
cants, and that the place was one where intoxicants were
unlawfully kept, sold, given away, drunk, and dispensed,
charges one offense only, under a statute declaring unlawful
places used for the illegal sale or keeping of intoxicants and
places where intoxicants are illegally kept, sold, given
away, or dispensed; the latter allegations respecting the
place being properly disregarded as surplusage, if indefi-
nite.
State v. Arsenault, 106 Me. 192, 76 Atl. 410.
In a prosecution for retailing liquor without a license, an
affidavit entitled, "State of Louisiana v. J. M.," and charg-
ing defendant with committing the offense "in violation of
the law and against the peace and dignity of the state of
Louisiana," was not insufficient, though on a printed blank
which stated in the printed matter that the offense was also
in violation of the ordinance of a city; the printed state-
ment being merely surplusage.
State v. Maroun, 133 La. 1083, 63 So. 593.
7. STATUTORY LANGUAGE.
An indictment charging in the form prescribed by the
statute that defendant sold, offered for sale, kept for sale,
or otherwise disposed of spirituous, vinous, or malt liquor
contrary to law is sufficient.
Spigener v. State, 11 Ala. App. 296, 66 So. 896.
Under a statute providing that an indictment for selling,
offering for sale, keeping for sale, or otherwise disposing of
intoxicating liquors is sufficient is charging that defendant
kept, sold, or disposed of the liquor contrary to law, an in-
—16
242 TITLE II— SEC. 32 OF ACT
dictment charging the sale of intoxicating liquors without a
license or contrary to local regulations is sufficient ; the aver-
ment as to license being rejected as surplusage because, un-
der the act of 1909, all sales of intoxicating liquor were in-
hibited.
Scott v. State, 3 Ala. App. 142, 57 So. 413.
In another case decided in Georgia, it was said: "Since
the offense charged is a purely statutory offense (Youmans
v. State, 7 Ga. App. 101, 113, 66 S. E. 383), the court did
not err in overruling the demurrer to the indictment which
alleged a violation of section 434 of the Penal Code of 1910,
in the terms and language of the Code, and so plainly that
the nature of the offense charged could be easily understood
by the jury. Pen. Code 1910, 954; Ricks v. State, 16 Ga.
600. See in this connection Rose v. State, 1 Ga. App. 5%, 58
S. E. 20. It is unnecessary to allege the name of the agent
through when, or the agency by which, or the manner in
which the solicitation is accomplished, and the connection of
the defendant with the solicitation or its subsequent ratifica-
tion by him is a matter for proof. In Loeb v. State, 75 Ga.
258, an indictment for the analogous offense of furnishing
liquor to a minor through a sale by a clerk of the defendant
was upheld, though the name of the clerk or agent was not
stated. It is immaterial whether or not the allegations in
the indictment referring to the United States mail and the
Southern Express Company as agencies by and through
which the defendant solicited the sale of liquors, were spe-
cific, since 'allegations in an indictment which are too gen-
eral and indefinite to set forth a crime may be treated as
surplusage if there are other averments in the indictment
which sufficiently allege the commission of an offense.' Els-
bery v. State, 12 Ga. App. 86, 76 S. E. 779. It was unnec-
essary to add in the present indictment, by and through the
United States mails and by and through the Southern Ex-
press Company, under the ruling by this court in Rose v.
State, 4 Ga. App. 588, 62 S. E. 117, that the words person-
ally in section 434 would cover solicitation through the mails
or through an express company. The effect of section 434
(Acts 1897, p. 39) is to extend the act of 1893, p. 115, so far
as soliciting is concerned, and its clear meaning is that the
person who sells intoxicating liquors or solicits their sale in
TITLE II— SEC. 32 OF ACT 243
any county of this state, shall be responsible, whether the
act is committed by himself individually, or by any person
who is his agent, it matters not what may be the means em-
ployed by either to effect the illegal solicitation. Rose v
State, 4 Ga. App. 588, 595, 62 S. E. 117."
Cashin v. State, 18 Ga. App. 87, 88 S. E. 996.
Where no form is provided by statute for an indictment
under a statute making it unlawful to have in possession,
etc., more than a certain quantity of named kinds of liquor,
the indictment must follow the language or substantially the
language of the section.
Holt v. State (Ala.), 78 So. 315.
An indictment in the form prescribed in a statute charg-
ing the accused with carrying on the business of a dealer in
liquors, is not fatally defective if it fails to charge that he
sold, or caused to be sold, spirituous, vinous, or malt liquor.
Wilkins v. State (Fla.), 78 So. 523.
Under a statute declaring that all places used for the il-
legal sale of intoxicating liquors, etc., are common nuisances,
an indictment, charging that accused did maintain a build-
ing which was used for the sale of intoxicating liquors, etc.,
is not defective because of failure to allege that it was per-
sonally used by accused ; the charge in the terms of the stat-
ute being sufficient.
State v. Trowbridge, 112 Me. 16, 90 Atl. 494.
Under a statute prohibiting the sale of any intoxicating
liquor, an information, charging that defendant did unlaw-
fully sell one bottle of spirituous intoxicating liquor which
intoxicating liquor so sold was capable of being used as a
beverage, being substantially in the language of the statute,
was sufficient in view of that section defining the phrase "in-
toxicating liquor" to include whisky, brandy, gin, wine, ale,
beer, and any spirituous liquor.
State v. Sullivan, 97 Wash. 639, 166 Pac. 1123.
An indictment, which alleges the possession of a quantity
of intoxicating liquors by the defendant, is not subject to
demurrer upon the ground that it charges no offense, and
244 TITLE II— SEC. 32 OF ACT
that it does not set out the amount of liquor in defendant's
possession.
Harris v. State, 21 Ga. App. 796, 95 S. E. 321.
An indictment charging in the language of the statute,
that accused received for storage, distribution, or on con-
signment for another alcoholic liquors, held not void for du-
plicity or uncertainty.
Rogers v. State, 133 Ark. 85, 201 S. W. 845.
Under the express provision of the Alabama Code 1907,
7353, an indictment is sufficient to charge a violation of the
prohibition law which charges that accused sold liquors with-
out a license and contrary to law.
Kelley v. State, 171 Ala. 44, 55 So. 141.
An indictment for violating the Virginia prohibition act
(Laws 1916, c. 146) reciting that accused "within one year
next prior to the finding of this indictment and subsequent
to the 1st day of November 1916, in said City of Norfolk,
did unlawfully manufacture, sell, offer, keep, store, and ex-
pose for sale, give away, dispense, solicit, advertise and re-
ceive orders for ardent spirits against the peace and dig-
nity of the commonwealth," was not subject to demurrer,
under Const, art. 1, 8 as not sufficient to inform defendant
of the cause and nature of the accusation, or as tending to
deprive her of liberty and property without due process of
law, in violation of Const. U. S. Amend. 14, 1, in view of
the right of accused to obtain a bill of particulars.
Wilkerson v. Commonwealth, 122 Va. 920, 95 S. E. 388.
An information that defendant, on the 7th of January,
1918, being in the county of Walla Walla, unlawfully had
in possession five 5-gallon barrels of whisky, contrary to
the statute, etc., being in almost the exact language of the
statute, sufficiently charged violation of Rem. Code, 1915,
§ 6262 — 22, by possession of an excess quantity for illegal
disposition, though not charging the excess quantity was
held for sale or unlawful disposition.
State v. Bachtold (Wash.), 180 Pac. 896.
An information for violation of the Colorado Liquor Law,
§ 1, charging that defendant, on a given date in a given
TITLE II— SEC. 32 OF ACT 245
county, "did unlawfully import into the state" intoxicating
liquor, being substantially in the language of the statute,
held to charge the offense with sufficient certainty.
Balfe v. People (Colo.), 179 Pac. 137.
Particulars Necessary. — In charge for manufacturing
spirituous liquors, which testimony tends to prove, it is not
sufficient to set forth such offense in words of statute, with-
out allegations of particulars of the alleged offense or the
manner or mode of manufacture.
Cole v. State (Okla. Cr. App.), 180 Pac. 713.
In view of Pen. Code 1913, §§ 934, 936, 938, 939, 943,
and Const, art. 2, § 24, an information charging that accused,
"on or about the 27th day of December, 1918, at and in the
county of Y., state of A., did then and there willfully and
unlawfully give, sell, and dispose of intoxicating liquor to
another, contrary," etc., was fatally defective, in that it did
not contain a statement of the acts constituting the offense
in ordinary and concise language, notwithstanding the rule
as to the sufficiency of charging offense in the language of
the statute.
Earp -u. State (Ariz.), 184 Pac. 942.
Averment That Act Was Contrary to Law. — The fact
that form 79, as set out in the Alabama Code of 1896, sug-
gests two different forms, does not dispense with the ne-
cessity for the material averment that the sale was contrary
to law.
Smith v. State, 155 Ala. 102, 46 So. 753.
See Sills v. State, 76 Ala. 92.
Averment as to Kind of Liquor. — An indictment
charging in separate counts that accused unlawfully dis-
posed of spirituous liquors, fermented liquors, and intoxi-
cating drink, being in the words of the statute, was suffi-
cient, it not being necessary under the Code to specify the
particular variety of liquor sold and disposed of.
Curry v. State, 117 Md. 587, 83 Atl. 1030.
Averment That Liquor Was Intoxicating.— An in-
dictment in the form prescribed by statute charging the ac-
246 TITLE II— SEC. 32 OF ACT
cused with carrying on the business of a dealer in liquors,
need not allege in terms that the liquors were intoxicating.
Ladson v. State, 56 Fla. 54, 47 So. 517.
Name of Vendee. — An indictment, charging the unlaw-
ful sale of intoxicants substantially in the language of the
statute, and so as to enable a person of common understand-
ing to know what was intended, the accused what he was
called upon to answer, and with sufficient certainty to enable
the court to pronounce judgment, on conviction, according to
the right of the case, was sufficient, though not alleging the
name of the person to whom the liquor was sold.
McNeil v. State, 125 Ark. 47, 187 S. W. 1060.
Conviction of Offense Not Charged Improper. — Un-
der statute providing that an indictment for any first offense
under sections 3, 4, or 5 of the act shall be sufficient if sub-
stantially in the form or to the effect set forth in those sec-
tions, where an indictment charged the keeping of intoxi-
cating liquors in violation of section 3 no conviction could
be had under section 17, making it unlawful to keep ardent
spirits in a house of ill repute.
Lane v. Commonwealth, 122 Va. 916, 95 S. E. 466.
See also post, "Variance," I, B, 11.
8. BILL OF PARTICULARS.
i
In a prosecution for engaging in the retail liquor business
without having paid the tax required, refusal of bill of par-
ticulars, allowance of testimony for the government of wit-
nesses whose names were not indorsed upon the indictment,
and the scope of the opportunity allowing defendants to
meet such unexpected proof, are matters resting in the dis-
cretion of the trial court.
Mayer v. United States (C. C. A.), 259 Fed. 216.
Where an indictment alleged a sale of whisky on a cer-
tain date in the town of P. defendant is not entitled to a
bill of particulars as to the house, square, street, or section
of the town, where the sale took place; defendant claiming
that he made no sale at all.
State v. Doucet, 136 La. 180, 66 So. 772.
TITLE II— SEC. 32 OF ACT 247
Where the motion for a bill of particulars is not accom-
panied by an affidavit showing the information desired and
the need of it for the purposes of defense, and the prosecut-
ing attorney, before commencement of the trial, pursuant to
court direction, designates upon the record the names of the
persons for whom the evidence for the state and the ad-
missions of defendant show the liquors were unlawfully
carried, denial of the motion will not be deemed prejudicial
error in the appellate court.
State v. Duff, 81 W. Va. 407, 94 S. E. 498.
"Neither was there any error in refusing to compel the
attorney for the commonwealth to furnish a better bill of
particulars. Each count of the indictment gave the date
when the offense was alleged to have been committed, and
the city of Richmond as the point to which the ardent spirits
were transported, and that was all the information needed
to enable the defendant to concert his defense. The offense
charged was not one likely to be committed in public, and the
place from which the spirits were transported was prob-
ably unknown to the grand jury. To require its allegation
and proof would be of no assistance to the defendant, and
would, in many cases, defeat the object of the statute. The
indictment sufficiently informed the defendant of 'the cause
and nature of his accusation.' "
Sickel v. Commonwealth (Va.), 97 S. E. 783.
9. NEGATIVE AVERMENTS.
An indictment charging accused with pursuing the busi-
ness of selling intoxicating liquors in local option territory
need not negative the exceptions in the statute.
Jones v. State, 76 Tex. Cr. App. 239, 174 S. W. 349.
See also, Winfrey v. State, 133 Ark. 357, 202 S. W. 23,
as to exception for sacramental or medicinal pur-
poses.
An indictment charging the violation of the state prohibi-
tion law need not negative the exception in the statute which
allows the sale of pure alcohol under certain prescribed cir-
cumstances.
McAdams v. State, 9 Ga. App. 166, 70 S. E. 893.
248 TITLE II— SEC. 32 OF ACT
"In a prosecution under chapter 187, (Nebraska) Laws
1917, for having possession of intoxicating liquor, the in-
formation need not negative the exceptions under which its
possession may be lawful, but these are available in de-
fense."
Fitch v. State (Neb.), 167 N. W. 417.
Where the Constitution prohibiting the bringing into the
state of intoxicating liquors, does not specifically except in-
toxicants intended for personal use, though the bringing of
such liquors is not an offense, an information charging the
bringing into the state of intoxicants need not negative that
they were intended for personal use; that being a matter of
defense to be urged.
Sturgeon v. State, 17 Ariz. 513, 164 Pac. 1050, L. R. A.
1917B, 1230.
When a statute has reference only to receipt of liquor by
transportation, exceptions in other sections have no applica-
tion to the offense created, and need not be negatived in in-
dictment.
Cochran v. Commonwealth, 122 Va. 801, 94 S. E. 329.
That Transportation Is Not Interstate. — An indict-
ment alleging that accused, a private person, unlawfully
transported and delivered intoxicating liquor to a person
named in a county which had adopted prohibition, need not
allege whether the transportation was interstate or intra-
state, where the Act relates to intrastate transactions, and
section 12 thereof declares that it shall not be necessary to
negative exceptions, but the same shall be available as purely
defensive matter.
Longmire v. State, 75 Tex. Cr. App. 616, 171 S. W.
1165, L. R. A. 1917 A, 726.
Exception in Favor of Druggist or Registered
Pharmacist. — "In an information charging the violation of
section 1 of the (Kansas) 'Bone-Dry Law' (Laws 1917, c.
215) making it unlawful 'for any person to keep or have in
his possession any intoxicating liquors * * * or to give
away or furnish intoxicating liquors to another, except drug-
gists or registered pharmacists as hereinafter provided,' it
TITLE II— SEC. 32 OF ACT 249
is not necessary to allege that the defendant was not a drug-
gist or registered pharmacist."
State v. Perello, 102 Kan. 695, 171 Pac. 630.
See also, State v. Bartow, 95 Wash. 480, 164 Pac. 227.
The exception declaring it unlawful for any one "other
than druggists and medical depositories" to engage in the
business of selling liquor, forming no portion of the descrip-
tion of the offense, a warrant charging one with engaging in
the business of selling liquor need not negative his being
within the exception.
State v. Moore, 166 N. C. 284, 81 S. E. 294.
State v. Wainscott, 169 N. C. 379, 85 S. E. 380.
Sales to Soldiers in Uniform — Exceptions. — An in-
dictment charging the unlawful selling of intoxicating liq-
uor to soldiers in uniform, in violation of Act May 18, 1917,
c. 15, § 12, 40 Stat. 76, declaring that it shall be unlawful to
sell any intoxicating liquor to any officer or member of the
military forces while in uniform, except as herein provided,
is sufficient, though it did not negative the exceptions which
the Secretary of War is authorized to prescribe as to the
sale of liquor at any military station, etc., for medicinal pur-
poses ; it appearing that the sales were made outside of any
military reservation over which the Secretary of War has
jurisdiction, and it not being shown that any exceptions had
been prescribed.
Young v. United States, 162 C. C. A. 133, 249 Fed. 935.
Exceptions to Reed Amendment. — An indictment for
violation of Act March 3, 1917, § 5, known as the Reed
Amendment (Comp. St. 1918, § 8739a), making it an offense
to "cause intoxicating liquors to be transported in interstate
commerce, except for scientific, sacramental, medicinal or
mechanical purposes," into a prohibition state, need not neg-
ative the excepted uses, which is matter of defense.
United States v. Simpson (D. C.), 257 Fed. 860.
It was held otherwise, however, in Sickel v. Common-
wealth (Va.), 99 S. E. 678.
250 TITLE II— SEC. 32 OF Act
10. MISJOINDER, DUPLICITY, MULTIFARIOUSNESS, ETC.
Two Offenses in Same Indictment. — The Arkansas
statute does not except offenses against the liquor laws from
the general rule forbidding two or more offenses to be
charged in one indictment.
Chronister v. State (Ark.), 215 S. W. 634.
Joinder of Different Offenses in Different Counts —
Misdemeanors. — It was proper for the state to charge the
accused with conducting a grogshop, because he had made a
sale of liquor, and then to charge him in the second count,
with the unlawful sale of the liquor, so that if he failed to
prove the first count, it could fall back on the second. As
the offense charged was misdemeanor, it was not an im-
proper cumulation of offenses.
State v. John, 129 La. 208, 55 So. 766.
Where an indictment for violating the prohibition law
charged accused in one count with making an unlawful sale,
and in another count with selling, offering for sale, keeping
for sale or otherwise disposing of intoxicating liquors, proof
of two different sales within the punishable period was prop-
erly admitted in view of a statute providing that indictments
may act out several charges in separate counts, and that ac-
cused may be convicted and punished upon each count as
upon separate indictments.
Shivers v. State, 7 Ala. App. 110, 61 So. 467.
An affidavit may in separate counts charge that accused
was guilty of the unlawful sale of intoxicants, and that he
kept a place where intoxicants were unlawfully sold.
Rash v. State, 13 Ala. App. 262, 69 So. 239.
Under Rev. St. § 1024 (Comp. St. § 1690), a count for
unlawfully carrying liquor into the Indian country and one
for there having it in his possession may be joined in the
same indictment.
United States v. Luther (D. C.), 260 Fed. 579.
Joinder in Same Count Conjunctively. — \Yhere
several offenses are embraced in the same general statu-
TITLE II— SEC. 32 OF ACT 251
tory definition, and are punishable in the same manner
they are distinct offenses, and may be charged conjunc-
tively in the same count, and a conviction may be had on
proving the commission of the offense in any of the ways
alleged.
Johnson v. State, 75 Tex. Cr. App. 177, 171 S. W. 211.
State v. Sarlin (Ind.), 123 N. E. 800.
An indictment is not defective because it charges two
offenses conjunctively, but the proper mode to raise the ques-
tion that more than one offense is charged, is to require the
state to elect.
Gramlich v. State, 135 Ark. 243, 204 S. W. 848.
An indictment charging conjunctively a violation of an
Act, making it unlawful except as otherwise provided for
any person to ship, transport, carry or deliver intoxicating
liquor to any other person in prohibition territory, charges
but one offense committed in any one of the ways specified.
Johnson v. State, 75 Tex. Cr. App. 177, 171 S. W. 211.
Under a statute providing that no person shall sell, "or"
keep for sale, intoxicating liquor, an information may prop-
erly charge defendant with selling "and" keeping for sale.
McLean v. People (Colo.), 180 Pac. 676.
An indictment charging a violation of a statute which
used the words, "transport into" and "deliver" conjunctively,
sufficiently charged that the transportation and delivery was
to some other person, firm, or corporation, the word "de-
liver" used conjunctively with "transport," necessarily im-
plying a transfer of possession to some other entity, meaning
to yield possession of, to hand over, or to surrender.
Winfrey v. State, 133 Ark. 357, 202 S. W. 23.
Joinder in One Count. — The sale and manufacture of
intoxicating liquors may be charged in the same count of
the indictment.
McAdams v. State, 9 Ga. App. 166, 70 S. E. 893.
The sale and the manufacture of intoxicating liquors may
be alleged in one count in an indictment, and proof of either
252 TITLE II— SEC. 32 OP ACT
crime charged in such count will be sufficient to support a
general verdict of guilty.
McAdams v. State, 9 Ga. App. 166, 70 S. E. 893.
Southern Exp. Co. v. State, 1 Ga. App. 700, 58 S. E. 67.
Jones v. State, 12 Ga. App. 564, 77 S. E. 892.
A statute providing the form of an indictment for viola-
tion of the prohibition law and permitting a number of of-
fenses against the law to be charged in one count, is valid.
Pine v. Commonwealth, 121 Va. 812, 93 S. E. 652, 653.
Charging in Disjunctive or Alternative. — Counts of an
affidavit for violation of the prohibition law, charging in the
alternative the doing of various things contrary to law, com-
plying with the requirement of the statute, are sufficient.
Dees v. State (Ala. App.), 75 So. 645.
An indictment charging that defendant sold, offered for
sale, gave away or otherwise disposed of spirituous, vinous,
and malt liquors, is not demurrable.
Cunningham v. State (Ala. App.), 75 So. 816.
In a prosecution for keeping and selling intoxicating liq-
uors, the state may charge the defendant with the commis-
sion of more than one offense in the alternative, leaving it
to the jury to determine under all the evidence of which spe-
cific offense charged, if any, the defendant is guilty, so that,
where accused was charged with selling, offering for sale,
keeping for sale, or othenvise disposing of, spirituous liq-
uors, contrary to law, the state was not required to elect on
which charge it would rely for a conviction.
Allison -v. State, 1 Ala. App. 206, 55 So. 453.
Under a statute making it an offense to "sell or give" in-
toxicating liquor, an information, charging that defendant
did "sell and give" intoxicating liquors to the person named,
charges but one offense.
State v. Laymon (S. D.), 167 N. W. 402.
Same; Contrary View. — The Indiana court says: "It
has been decided many times that it is sufficient to charge a
crime in the language of the statute, but this statement of
the law should not be taken literally. This does not mean
TITLE II— SEC. 32 OF ACT 253
that disjunctives in the statute may be used. The meaning
of the statute must be gathered and the substantive words or
their equivalents used. It has been repeatedly held by this
court that, where a statute declares that it shall be unlawful
for a person to do this, or that, or that, it is sufficient to
charge the several acts conjunctively, but it is not sufficient
to charge them disjunctively because this rendered the plead-
ing uncertain. The defendant has a right to a direct and
positive charge in order that he may plead and defend.
Where a statute, as here, declares it unlawful 'to keep in-
toxicating liquor with the intent to sell, barter, exchange,
give away, furnish or otherwise dispose of the same/ it is
proper to charge that one did unlawfully keep with the in-
tent to sell, barter, exchange, give away, furnish, 'and' other-
wise dispose of the same. That is to say, the state may
charge conjunctively all of the acts following the intent.
Davis v. State, 100 Ind. 154; State r. Stout, 112 Ind. 245, 13
N. E. 715; Fahnestock v. State, 102 Ind. 156, 1 N. E. 372;
Regadanz v. State, 171 Ind. 387, 391, 86 N. E. 449."
State v. Sarlin (Ind.), 123 N. E. 800.
Where a statute declares it unlawful "to keep intoxicating
liquor with intent to sell, barter, exchange, give away, fur-
nish or otherwise dispose of the same," it is proper to
charge that one did unlawfully keep with "intent to sell,
* * * furnish and otherwise dispose of the same," but not
to charge disjunctively.
State v. Sarlin (Ind.), 123 N. E. 800.
An indictment for the unlawful possession of intoxicating
liquors, as defined by Burns' Ann. St. Supp. 1918, § 8356d,
with intent to unlawfully sell or dispose of the same, is de-
fective for uncertainty, where the several purposes for
which the liquors were kept are joined by the disjunctive
"or," instead of the conjunctive "and."
Young v. State (Ind.), 124 N. E. 679.
State v. Sarlin (Ind.), 123 N. E. 800.
An affidavit or indictment under Burns' Ann. St. Supp,
1918, § 8356d, for unlawful keeping of intoxicating liquor
with intent to sell, etc., which ends with the words "or use,"
tends to show innocence and is vitiated thereby, and such
254 TITLE II— SEC. 32 OF ACT
words cannot be treated as surplusage, and such affidavit
was properly quashed under provision of Burns' Ann. St.
1914, § 2065, subd. 3.
State v. Sarlin (Ind.), 123 N. E. 800.
An information charging that defendant did willfully and
intentionally manufacture certain spirituous, vinous, fer-
mented, or malt liquors, or an imitation or substitute there-
for, is bad for duplicity.
Cole v. State (Okla. Cr. App.), 180 Pac. 713.
Charging Offense in Different Places. — In a Dela-
ware case it was said : "The contention of defendant's
counsel is that the allegation that the sale was had in 'the
store or warehouse' of defendant is in the alternative and
implies that he sold in two places. The court is of opinion
that to charge a sale in more than one place in a single count
would be fatally defective, but it appears by the language
used that it was intended to charge the defendant with a
sale at a single place, known as the store or warehouse, and
if there is any repugnancy in the indictment it can only show
as a variance after the trial of the case."
State v. Li Fieri (Del.), 102 Atl. 77.
Charging in Alternative — In Different Counts. — The
rules permitting double and alternative allegations in indict-
ment do not apply to indictments for violation of the pro-
hibition laws where the offenses are charged in separate
counts.
Herring v. State (Ala. App.), 75 So. 646.
Charging Same Offense in Different Counts in Dif-
ferent Ways. — "The words, 'whether intended for personal
use or otherwise,' are exclusive, and no matter for what pur-
pose intended, it is unlawful for any person to 'have, con-
trol or possess' any of the liquors enumerated in said section :
'and, where an indictment charges that such liquors were
kept for sale,' the words 'for sale' may be stricken as imma-
terial, as they are not 'descriptive of the identity of that
which is legally essential to the claim of charge.' This be-
ing true, the two counts of the indictment were practically
the same. Under the present prohibition laws of this state
TITLE II— SEC. 32 OF ACT 255
there is no independent crime of keeping for sale intoxicat-
ing liquors, as separate and distinct from the crime of hav-
ing, controlling, and possessing such liquors. From the
above it will be seen that the two counts under which the
defendant was tried, charged the commission of one offense
in two different ways."
Corley v. State (Ga. App.), 98 S. E. 401, 402.
Charging Same Sale to Different Persons.— An in-
dictment for pursuing the occupation of selling intoxicating
liquors in prohibition territory, which, after alleging that
defendant unlawfully engaged in and pursued the business,
alleged that he did then and there sell to J. H., R. B. and
J. B., intoxicating liquors, did not allege a sale jointly
to the persons named, but that the sales were made to each
of them.
Vance v. State, 80 Tex. Cr. App. 177, 190 S. W. 176.
A count in an information that accused sold intoxicating
liquors to three persons named therein imports a sale at the
same time to such persons, and is not duplicitous.
Ray v. State (Del.), 100 Atl. 472.
New Offense Added on Appeal. — Where defendant,
after conviction in the county court on a charge that he sold,
offered for sale, kept for sale, or otherwise disposed of spir-
ituous, vinous, or malt liquors contrary to law, appealed to
the circuit court and was there tried on a complaint filed,
charging him not only as charged in the original affidavit,
but also with having in his possession spirituous liquor con-
trary to law, the added charge set forth a distinct offense
from that contained in the original affidavit, and should have
been stricken on defendant's motion.
Echols v. State (Ala.), 75 So. 814.
Charging as Principal and Accessory. — A count
charging defendant with an unlawful sale of intoxicating
liquors, and with having been an accessory to such a sale, is
not bad as charging the two offenses of being principal and
of being accessory, despite the erroneous characterization of
the method of committing the offense as accessory before
the fact.
Harris v. State (Ark.), 215 S. \Y. 620.
256 TITLE II— SEC. 32 OF ACT
Joinder of Defendants in Indictment. — Members of a
lodge, which maintains clubrooms in which liquors are sold
to members, and the barkeeper making the sale, who is not a
member of the lodge, may be legally joined in one count for
violation of a law prohibiting maintaining of any clubroom
for purpose of selling or furnishing intoxicating liquors.
Hawkins v. State (Okla. Cr. App.), 182 Pac. 732.
Where an indictment against two persons charges that the
said persons, naming them, did "then and there unlawfully
and with force and arms have, possess, and control certain
alcoholic, spirituous, malt, and intoxicating liquors," either
one or both of them may be convicted, according as the evi-
dence may show either one or both guilty. Having and pos-
sessing intoxicating liquor is not a joint offense, like riot,
and the indictment in this case is "joint and several."
Page v. State (Ga. App.), 99 S. E. 55.
11. AVERMENTS OF PLACE.
"In a prosecution for the sale of liquor it is not necessary
to set forth in the indictment the precise locality at which
the alleged sale was consummated, or to do more than show
that it was within the jurisdiction of the court."
Pines v. State, 15 Ga. App. 348, 83 S. E. 198.
See also, Donovan v. State, 170 Ind. 123, 83 N. E. 744.
Rigrish v. State, 178 Ind. 470, 99 N. E. 786.
Haymond v. State (Ind.), 119 N. E. 5, 6.
A complaint alleging that at a particular town, in a par-
ticular county, intoxicating liquors were unlawfully kept,
deposited, and transported by J. K. in a Ford touring car
(giving its number), owned and driven by said J. K. on the
public way in said town, cannot be held to charge the offense
of keeping and depositing intoxicating liquors, under Rev.
St. of Maine, c. 127, § 27; there being no allegation of the
place at which kept and deposited.
State v. Ford Touring Car No. 1,440,316, 117 Me. 232,
103 Atl. 364.
State v. Atwood, 166 N. C. 438, 81 S. E. 318.
The offense denounced by statute, prohibiting the keeping
of a place for the unlawful sale of intoxicating liquor, is
TITLE II— SEC. 32 OF ACT 257
complete when one holds himself out to the public as ready
and able to furnish liquor, and an indictment charging the
offense sufficiently identifies it by designating the particular
building or place where liquor is kept for unlawful sale.
Fehringer v. People, 59 Colo. 3, 147 Pac. 361.
So far as an alleged violation through the accused's keep-
ing liquor on hand at his place of business is concerned, it is
not necessary to describe the place of business further than
to locate it in the county of the prosecution, but where keep-
ing on hand at a public place is charged the indictment
should specify what public place is referred to.
Hall v. State, 8 Ga. App. 747, 70 S. E. 211.
A place where intoxicating liquors were unlawfully kept
was sufficiently described as "Lot No. 46 in the original
town of R., Crawford County, Kansas."
State v. Macek, 140 Kan. 742, 180 Pac. 985.
"In a prosecution for the so-called crime of bootlegging
under the provisions of section 10144 of the (North Dakota)
compiled Laws of 1913, an information is sufficiently def-
inite which charges that the crime was committed in a barn
on a certain block, in a certain city and county, and the
name of the owner of such barn is not necessary."
State v. Stanley, 38 N. D. 311, 164 N. W. 702.
But where defendants were charged with the sale of
intoxicating liquors on Sunday at a place within the borough
limits of Penn's Grove, and the proofs showed sales in the
open waters of the Delaware river, but the state did not
attempt to show that the boundaries of such borough ex-
tended below the lower-water mark, in view of 4 Comp. St.
of New Jersey, 1910, p. 5371, providing that an offense com-
mitted upon such river shall be described "as having been
committed in and upon the waters of the River Delaware in
said county," the contention that defendants were convicted
of a crime other than charged must be sustained.
State v. Cooper (N. J. Sup.), 107 Atl. 149.
Origin and Destination of Conveyance. — "An in-
formation, charging an unlawful conveyance of intoxicating
liquor, must allege the place or point in the county from and
258 TITLE II— SEC. 32 OE ACT
to which such conveyance was made, if they are known, and,
if unknown, it must be so alleged."
Robbins v. State, 12 Okla. Cr. App. 412, 157 Pac. 1027.
In another case it was said : "It is averred in the informa-
tion in this case that the place from which said alcohol was
transported was unknown to the informant, and that it was
transported to a designated place in the city of Eufaula,
and these allegations as to the transportation of said alcohol
were sufficient. In Schave v. State, 4 Okl. Cr. App. 285, 111
Pac. 962, it is held : 'An information charging the unlawful
conveyance of liquor from one place in the state to another
place therein is not defective for failing to state the place
from which the liquor was conveyed, where it alleges that
such place was unknown to the informant.' "
McNeal v. State (Okla. Cr. App.), 179 Pac. 943, 944.
An indictment under Reed Amendment, Act March 3,
1917, for transporting liquor into a prohibition state, is not
fatally defective because it incorrectly states the point from
which the transportation started.
Malcolm v. United States (C. C. A.), 256 Fed. 363.
A presentment need not specify the place where the trans-
portation began when such place is unknown to the grand
jurors.
Liquor Transp. Cases v. State, 140 Tenn. (13 Thomp-
son) 582, 205 S. W. 423, 424.
See also Sickel v. Com. (Va.), 197 S. E. 783.
Necessity of Alleging within State. — An affidavit
charging the unlawful keeping of intoxicating liquor for
sale in the city, town, and state, with intent then and there
to sell, barter, exchange, give away, furnish, or otherwise
dispose of the same, to persons within this state, being in
the language of the statute, is sufficient as against the ob-
jection that it fails to allege appellee's keeping such liquors
for sale within the state.
Schulmeyer v. State (Ind.), 124 N. E. 490.
An indictment for having possession of liquor in the In-
dian country, is not subject to demurrer, because it did not
TITLE II— SEC. 32 OF ACT 259
specifically designate the particular location in the Indian
country within the named district.
United States v. Luther (D. C.), 260 Fed. 579.
12. AVERMENTS OF TIME.
An indictment need not aver the time of the commission
of the offense charged, unless time is of the essence, in which
case it must be averred and proved.
Kelley v. State, 171 Ala. 44, 55 So. 141.
An allegation in an indictment for selling intoxicating
liquor as to the time of the sale is immaterial, and a con-
viction may be sustained upon proof of the sale to the per-
son named at any time within two years prior to the filing
of the indictment.
State v. Freeman, 162 N. C. 594, 77 S. E. 780.
Clopton v. Commonwealth, 190 Va. 813, 63 S. E. 1022.
The offense of engaging in the business of selling liquor
in prohibition territory, laid by the indictment as committed
on or about a certain day embraces a period of three years
prior and up to the filing of the indictment.
Jackson v. State (Tex. Cr. App.), 200 S. W. 150.
Where an indictment for wrongfully selling liquor with-
out a license charged that the offense was committed on
August 4, 1910, the state was entitled to offer evidence of
a sale made by accused on the 18th following; time not being
of the essence of the offense.
State v. Green, 127 La. 830, 54 So. 44.
See also, State v. Francis, 157 N. C. 612, 72 S. E. 1041.
An indictment for pursuing the business of selling intox-
icants in local option territory, alleging that on or about the
25th day of April A. D. 1917, and anterior to the present-
ment of the indictment, defendant in a named county did
then and there engage in and pursue the occupation and
business of selling intoxicating liquor, and setting out the
date of numerous specific sales, is not defective, in that no
sales are alleged to have been made on or after the day de-
fendant is alleged to be engaged in the business on which day
260 TITLE II— SEC. 32 OF ACT
the bill was returned ; at least two specific sales within three
years being specified.
Alexander v. State (Tex. Cr. App.), 204 S. W. 644, 645.
"In State v. Green, 127 La. 830, 54 So. 45, the court said:
'But, while time is not of the essence, so far as fixing a date
in the indictment is concerned, it is of the essence so far as
letting the defendant know at some stage or other of the trial
what particular offense he is being called upon to answer.
Therefore, by offering evidence of a sale made on the 18th
of August, the prosecution committed itself to the sale of
that date as being the one for which the defendant was pros-
ecuted. And, this being so, it was error to allow evidence
of a sale made on a different date. The indictment being
for the selling of liquors, and not for the keeping of a grog
or tippling shop, each separate sale was a distinct offense;
and it is elementary that evidence of other crimes than that
for which the defendant is being tried is not admissible.'
'Where on an indictment for illegal selling, the prosecution
has proved one unlawful sale, it is error to admit evidence
of other sales.' 9 Cyc. 269. On the trial of the case the
witness for the prosecution was permitted to testify to two
sales of whisky, at different times, and under different cir-
cumstances, one on April 4th (Easter Sunday), and the
other shortly before or after, or some time after. That the
sales were distinct is conclusively shown by the testimony
of the witness that on April 4th he got whisky some 50
steps from the shop of the defendants, and at another time
got whisky within said shop, and on both occasions left
money on the counter of the shop to pay for the whisky,
the case comes clearly within the rule enunciated in State
V. Green, supra!'
State v. Elliott, 138 La. 457, 70 So. 473, 474.
An information for keeping intoxicating liquors for sale
as a beverage, contrary to the provisions of the Laws of
North Dakota and which states that: Heretofore, to wit,
at various and sundry times between the 1st day of April,
1912, and the 30th day of November 1912, in the county of
Benson in said state of North Dakota, one Lloyd Lesh, late
of said county of Benson and said statute of North Dakota,
did commit the crime of keeping intoxicating liquors for
TITLE II— SEC. 32 OF ACT 261
sale as a beverage, committed as follows, to wit: That at
said time and place the said Lloyd Lesh did wilfully, wrong-
fully and unlawfully keep intoxicating liquor for sale as a
beverage, etc., sufficiently charges the offense of keeping in-
toxicating liquors for sale as a beverage, and is not defec-
tive in that it fails to specify the date on which the crime
was committed nor is it void for duplicity.
State v. Lesh, 27 N. D. 165, 145 N. W. 829.
Under a statute declaring it not necessary to state the
time at which the offense was committed, and that it may
be alleged to have been committed on any day before the
finding of the indictment and generally before such finding,
unless time is a material element of the offense, the time of
unlawfully keeping for sale, and selling intoxicating liquors
was not a necessary averment of an affidavit charging the
offense, and affidavit charging its commission within the
last 12 months was sufficient; but if averred as committed
at any time before the affidavit, defendant might require the
state to show its commission at that time and within the
time prescribed by the statute making it punishable.
Glover v. State, 11 Ala. App. 287, 66 So. 877.
An indictment against a druggist for the sale of intoxi-
cating liquor is not bad for not specifying the day of sale,
if it alleged it to be within one year before the finding of
the indictment.
State v. Davis, 68 W. Va. 184, 69 S. E. 644.
But an information charging that defendant on July 27,
1916, and between that date and May 29, 1916, possessed
certain liquor, but not averring possession of all of such liq-
uor at one and the same time, was too indefinite to sustain
a judgment thereon, and was demurrable.
Killough v. State (Okla. Cr. App.), 183 Pac. 430.
Period of Alleged Nuisance. — Since a conviction or ac-
quittal of maintaining a liquor nuisance during a given pe-
riod bars subsequent prosecution based on the same period,
an indictment must specifically allege the time relied on with
certainty.
State v. Peloquin, 106 Me. 358, 76 Atl. 888.
262 TITLE II— SEC. 32 OF ACT
An indictment charging the keeping of a liquor nuisance
between a specified date and the date of the finding of the
indictment was sufficient to cover the period between the
specified day and the first day of the term at which the in-
dictment was found.
State v. Peloquin, 106 Me. 358, 76 Atl.
Averments Respecting Period of Limitation.—
Where an indictment charged that accused on the
day of , in the year 19 — and within the last two years,
did unlawfully sell, by retail, whisky, etc., without a license,
it sufficiently charged that the sale was within the two-year
statutory period of limitations ; the balance of the allegation
as to the time being meaningless and surplusage.
Mullins v. Commonwealth, 115 Va. 945, 79 S. E. 324.
An indictment which recited that it was found at the
December term, 1912, and charged that accused, within 12
months on the last preceding 191 — in the said county, did
sell, etc., without license, sufficiently showed that the offense
was committed within the statutory period of limitation, and
was sufficient notwithstanding the omission in charging the
year in which the offense was committed.
Shiflett v. Commonwealth, 114 Va. 876, 77 S. E. 606.
An indictment found October 17, 1910, charging that
since August 25, 1909, accused unlawfully sold liquors, etc.,
was not demurrable, as showing that the offense was com-
mitted more than one year before finding of the indictment.
Gresham v. State, 1 Ala. App. 230, 55 So. 447.
While, under a statute providing that an indictment shall
not be invalid for omitting to state the time at which the
offense was committed, the indictment for unlawfully sell-
ing intoxicants need not allege the precise time of the sale,
it must allege facts showing that the offense charged was
committed within the period of limitation.
Shiflett v. Commonwealth, 114 Ya. 876, 77 S. E. 606.
Averment of Act Lawful within Part of Period Cov-
ered.— An indictment charging that defendant within a
year prior to finding the indictment unlawfully had in his
TITLE II— SEC. 32 OF ACT 263
possession two quarts of whisky is bad ; such act not having
been an offense till three months before the finding of the
indictment.
Blair v. Commonwealth, 122 Va. 798, 94 S. E. 185.
And an indictment charging that within a year next prior
to its finding, defendant unlawfully gave away ardent spir-
its, having been found within three months after the going
into effect of the prohibition law, prior to which the act
charged was not necessarily unlawful, is insufficient.
Kennan v. Commonwealth, 122 Va. 831, 94 S. E. 186.
An indictment charging a sale of intoxicating liquor with-
out a license covers a violation of the law 12 months prior
to its return into court, and an indictment returned at the
1909 fall term of court, while the prohibitory law did not
become effective until January 1st, of that year is demur-
rable, because covering time prior to January 1st, 1909, in
the absence of any local prohibitory law covering the county.
Kelley v. State, 171 Ala. 44, 55 So. 141.
See also, Lester v. State, 8 Ala. App. 376, 62 So. 337.
Where an affidavit for an alleged wrongful sale of intoxi-
cating liquors only attempted to charge an offense in J.
County under the prohibitory law (Gen. Acts Sp. Sess. 1907,
p. 71, 1) which went into effect in J. County on January 1,
1908, and the complaint was made on May 1st, of that year,
time was a material ingredient of the offense, and the com-
plaint was fatally defective for failure to allege that the of-
fense was committed after the act took effect.
Marks v. State, 159 Ala. 71, 48 So. 864, 133 Ann. St.
Rep. 20.
13. AVERMENTS OF QUANTITY AND PRICE.
An allegation in an indictment as to quantity of liquor
sold need not be proved as laid unless the quantity consti-
tutes an essential element of the crime.
Strozier v. State, 127 Ark. 543, 192 S. W. 884.
See Hall v. State, 8 Ga. App. 747, 70 S. E. 211.
264 TITLE II— SEC. 32 OF ACT
Nature of Consideration.— It need not be alleged of
what the valuable consideration for which the liquor was
sold consisted.
Hall v. State, 8 Ga. App. 747, 70 S. E. 211.
State v. John, 129 La. 208, 55 So. 766.
14. AVERMENTS OF NAMES.
Name of Vendee. — The state is not required to allege
the name of the person to whom a sale of intoxicating liq-
uor was made, and, although each separate sale constitutes
a separate offense, may offer proof of more than one sale
to secure a single conviction, but subsequent prosecution is
barred on all sales offered in evidence.
Dean v. State, 130 Ark. 322, 197 S. W. 684.
See also, State v. John, 129 La. 208, 55 So. 766.
Clopton v. Commonwealth, 109 Va. 813, 63 S. E. 1022.
Hall v. State, 8 Ga. App. 747, 70 S. E. 211.
"The state is not required to inform the defendant, in a
bill of information or indictment charging him with having
unlawfully sold intoxicating liquor of the name of the pur-
chaser."
State v. Smith, 139 La. 442, 71 So. 734.
Though the illegal sale of intoxicating liquors is now
a felony instead of a misdemeanor, the rule still applies
that it is not necessary for the indictment to allege the
name of the purchaser.
Springer v. State, 129 Ark. 106, 195 S. W. 376.
The name of the purchaser need not be stated in an in-
dictment for the sale of intoxicating liquors; but if the
name is stated, proof of sale to any other person is irrelevant,
unless he was agent for the person named and the defend-
ant was aware of this relation.
Finch v. State, 6 Ga. App. 338, 64 S. E. 1007.
Pines v. State, 15 Ga. App. 348, 83 S. E. 198.
Williams v. State, 89 Ga. 438, 15 S. E. 552.
Carter v. State, 68 Ga. 96.
It is said in one case : "There is some conflict in the
authorities as to whether it is necessary to name the pur-
TITLE II— SEC. 32 OF ACT 265
chaser in an indictment or information charging one with
unlawfully selling intoxicating liquor. The better rule is
tersely expressed in Fletcher v. Commonwealth, 106 Va.
840, 56 S. E. 149, where it is said : 'The gist of the offense
is the unlawful sale, and the name of the person to whom it
was made is immaterial.' This ruling is favored, without
being expressly decided, in our own case of State v. Bo-
decker, 11 Wash. 417, 39 Pac. 645, where we said: 'The
crime, under our statute, consists in the selling, and there
would seem to be no reason why the name or names of the
individual or individuals to whom the sale is made should be
specified' — citing State v. Becker, 20 la. 438; State v.
Schweiter, 27 Kan. 499; State v. Gummer, 22 Wis. 411;
State v. Jaques, 68 Mo. 260; State v. Heldt, 41 Tex. 220."
State v. Koerner (Wash.), 175 Pac. 175, 176.
An indictment against a druggist for the sale of intoxi-
cating liquor is not bad for not naming the person to whom
the sale was made.
State v. Davis, 68 W. Va. 184, 69 S. E. 644.
But an information for violation of the Arizona Pro-
hibition Law must, in view of Pen. Code 1913, §§ 934, 936,
938, 939, 943, Const. Art. 2, § 24, name the person to whom
the liquor was sold or given.
Earp v. State (Ariz.), 184 Pac. 942.
Indictment for Pursuing Liquor Business. — But an
indictment for pursuing the business of selling intoxicating
liquors in prohibited territory must give the name of the
alleged purchaser of liquor touching the two sales essential
under the statute.
Fisher v. State, 81 Tex. Cr. App. 568, 197 S. W. 189.
Information Charging Conspiracy.— "In an infor-
mation charging a conspiracy with intent to sell intoxicat-
ing liquors, it is not necessary to aver in said information
the names of the person or persons to whom the defend-
ants intended to sell such liquors."
Conley v. State (Okla. Cr. App.), 179 Pac. 480.
266 TITLE II— SEC. 32 OF ACT
Name of Person for Whom Kept and to Whom De-
livered.— In an information charging that defendant un-
lawfully kept for and delivered to one John Doe, whose true
name is unknown, a certain amount of intoxicating liquor,
the charge that it was kept for a person unknown could
be treated as surplusage, so that the information was not
invalid as not stating the name of the party for whom it was
kept.
State v. Leonard (Mo. App.), 190 S. W. 957.
An information charging the keeping of intoxicating liq-
uor for another in violation of Rev. St. 1909, 7226, is suf-
ficient, though it does not name the person for whom the
liquor was kept.
State v. Brown (Mo. App.), 198 S. W. 177.
"In prosecution for the sale of intoxicating liquor it is
well settled that the name of the person to whom the liq-
uor is sold is immaterial ; the person to whom it is sold not
being an element of the offense. State v. Curtwright, 134
Mo. App. 588, 114 S. W. 1146; State v. Haney, 151 Mo.
App. 251, 132 S. W. 55; State v. Spain, 29 Mo. 415; State
v. Jaques, 68 Mo. 260; State v. Ladd, 15 Mo. 430. It
would seem that, in reason, the same rule would apply in a
prosecution for keeping liquor for another. The word 'sale'
in ex termini, includes a person to whom the sale is made,
as much so as the phrase 'keep for another' includes such
other."
State v. Leonard (Mo. App.), 190 S. W. 957.
Name of Person to Whom Gift Was Made. — Where a
statute makes it unlawful to sell, give away, or otherwise
dispose of, whisky, etc., and another statute provides that
any indictment charging that prohibited liquors were sold,
kept for sale, "or otherwise disposed of," need not allege
the person to whom such sale "or other disposition" was
made; and section 31, provides that the term "otherwise dis-
posed of" following the word "sold," etc., when used in any
indictment, shall include giving away, etc., it was held, con-
struing the several related acts together, that an indictment
for giving away whisky, in violation of section 3 of the Car-
TITLE II— SEC. 32 OF ACT 267
michael act, need not allege the name of the person to whom
the gift was made.
Grace v. State, 1 Ala. App. 211, 56 So. 25.
Name of Person to Whom Transported or Delivered.
— In an indictment for violation of a statute denouncing the
shipment, transportation, or delivery of intoxicating liquors
from any other state, territory, or foreign country to an-
other person, firm, or corporation in Arkansas, it is unnec-
essary to specify the names of the persons to whom the liq-
uor has been transported or delivered.
Winfrey v. State, 133 Ark. 357, 202 S. W. 23.
See also, State v. Duff, 81 W. Va. 407, 94 S. E. 498.
Averment That Name Is Unknown.— \Yhile an indict-
ment for selling intoxicating liquors to persons to the grand
jurors unknown is authorized, yet the state to procure a con-
viction must offer evidence tending to prove an actual sale to
the unknown persons and in the absence of such proof a con-
viction will not be supported.
State v. Watkins, 164 N. C. 425, 79 S. E. 619.
An indictment stating that accused on a specified date with
force and arms in a specified county unlawfully sold intoxi-
cating liquor, gin and beer to persons whose names were
unknown to the grand jurors, contrary, etc., sufficiently
charged an offense.
State v. Dunn, 158 N. C. 654, 74 S. E. 359.
Omission to Name Known Vendee. — In Xew Jersey if
an indictment contains an averment of an illegal sale of liq-
uors to persons unknown to the grand jury, it is improper
on the trial to admit the evidence as to sales made to them
of persons who were subpoenaed to testify or testified before
the grand jury, but are not named in the indictment.
State v. Smith, 89 N. J. L. 52, 97 Atl. 780.
Name of Defendant— Idem Sonans. — In a prosecution
of "Philip G." for illegally selling intoxicating liquors, that
one count charged him as "Philup G." did not vitiate the in-
dictment, as the names were idem sonans.
People v. Goldberg, 287 111. 238, 122 N. E. 530.
268 TITLE II— SEC. 32 OP ACT
Names of Witnesses to Sale. — Where an indictment
charges the unlawful sale of intoxicating liquors, it is not
necessary to give the names of the witnesses to the sale.
State v. John, 129 Lt. 208, 55 So. 766.
15. AVERMENTS OF KIND OF LIQUOR.
The use of the term whisky in an indictment charging the
defendant with selling "intoxicating liquor, to wit, whisky,"
is sufficient to show the sale of distilled liquor, within the
statute prohibiting the sale thereof.
Mullins v. Commonwealth, 115 Va. 945, 79 S. E. 324.
Under a statute requiring interstate shipments of spirit-
uous, malted, fermented, or other intoxicating liquor to be
so labeled as to plainly show the nature of their contents and
the quality contained therein, it was sufficient to describe
the contents as intoxicating liquor, without specifying the
particular kind of liquor.
United States v. Hillsdale Distillery Co. (D. C.), 242
Fed. 536.
See also, State v. Busick, 90 Ore. 466, 177 Pac. 64.
An indictment for the unlawful carriage of intoxicating
liquors, otherwise in due form, is not insufficient or defective
because it fails to specify the kind of liquors.
State v. Duff, 81 W. Va. 407, 94 S. E. 498.
16. AVERMENTS OF INTOXICATING CHARACTER.
Where a statute provides that on the adoption of local op-
tion it shall not be lawful for any person within the limits
of the territory covered to sell in any manner any kind of
intoxicating liquors or beverage containing alcohol in any
quantity whatever, an information for violating the local
option law charging a sale of intoxicating liquor, to wit,
one pint of cider, a fermented beverage containing alcohol,
was not objectionable for failure to charge that the cider
sold was intoxicating or contained any quantity of alcohol.
State v. Crider, 180 Mo. App. 77, 168 S. W. 315.
"The special presentment charged that the accused did sell
and barter for a valuable consideration rum, gin, cider, al-
TITLE II— SEC. 32 OF ACT 269
coholic spirituous malt, and intoxicating bitters, and other
drinks, which if drunk to excess will produce intoxication,
contrary, to the law, etc., while cider, eo nomine, is not pre-
sumptively an intoxicating liquor, and the intoxicating qual-
ity of a cider alleged to have been sold in violation of law
must be proved, still the subsequent conjunctive statement
of the present accusation (as part of the charge as a whole)
that the defendant sold other drinks which if drank to ex-
cess would produce intoxication, involves and impliedly in-
cludes a charge that the cider which the accused was alleged
to have sold was an intoxicating liquor, the court did not
err in overruling the demurrer."
Lewis v. State, 17 Ga. App. 445, 87 S. E. 709.
'Intoxicant." — An affidavit charging that accused did
unlawfully sell one pint of intoxicant liquors will support a
conviction, although the word "intoxicant" is a noun mean-
ing that which intoxicates, and should not be used to modify
the noun liquors, for accused must have understood that it
was intended to charge him with the selling of intoxicating
liquors.
Pope v. State, 108 Miss. 706, 67 So. 177.
In a Delaware case, the court said : "The second conten-
tion is that the allegation of the sale of 'intoxicating liquor,
to wit, beer,' is insufficient. In the opinion of the court the
word 'beer' without restriction or qualification denotes an
intoxicating malt liquor and is within the meaning of the
words 'intoxicating liquor,' and the use of the word 'beer'
alone in an indictment charging the unlawful sale of intoxi-
cating liquor is presumed to include only that species of bev-
erage. The court will take judicial notice, under our statute,
of the fact that 'beer' is the usual name for a malt liquor,
and that it is intoxicating, and a charge of an alleged sale
of intoxicating liquor is sustained by proof of the sale of
beer, without any further description or testimony that it
was intoxicating."
State v. Li Fieri (Del.), 102 Atl. 77.
And under a statute making persistent violation of the pro-
hibitory law a felony, being supplemental legislation, the pro-
cedure authorized by the general intoxicating liquor law gov-
270 TITLE II— SEC. 32 OF ACT
erns, and an information for persistent violation need not
state the kind of liquor sold or the name of the person to
whom sold.
State v. Schmidt, 92 Kan. 457, 140 Pac. 843.
An information charging that defendant sold for beverage
purposes a malt product "commonly known as lager beer"
and containing as much as one-half of 1 per cent, of alcohol,
is good on demurrer, although it did not charge in terms that
the article was intoxicating.
United States v. Schmauder (D. C.), 258 Fed. 251.
But an information charging one with unlawfully selling
certain liquids, without in any way charging that the liquids
sold were spirituous, malt, vinous, fermented, or intoxicat-
ing liquors, does not state an offense.
Ex parte McKenna, 97 Kan. 153, 154 Pac. 226.
An information under War-Time Prohibition Act Nov.
21, 1918, is fatally defective for failure to allege that the
beer sold was in fact intoxicating.
United States v. Baumgartner (D. C.), 259 Fed. 722.
Charging Keeping of Liquor Containing Alcohol. —
An indictment charging accused with keeping a distillery
where alcoholic liquors were manufactured sufficiently
charges a violation of an act prohibiting the keeping of liq-
uor containing alcohol which if drunk to excess will produce
intoxication.
State v. Raven, 91 S. C. 265, 74 S. E. 500.
Indictment for Illegal Manufacture Insufficient in
Not Alleging Liquor Intoxicating. — An indictment charg-
ing defendant with the manufacture of a malt liquor having
an alcoholic content of one-half of 1 per cent, or more, but
not alleged to be intoxicating, is demurrable.
United States v. Standard Brewery (D. C.), 260 Fed.
486.
17. AVERMENT OF PRIOR OFFENSES.
"In an information for keeping and maintaining a com-
mon nuisance as a second offense, contrary to the provisions
TITLE II— SEC. 32 OF ACT 271
of the prohibition law, the former conviction need not be set
forth at length, but a brief allegation of such conviction is
sufficient."
State v. Webb, 36 N. D. 235, 162 N. W. 358, 359.
See also, State v. Dereiko (Wash.), 182 Pac. 597.
An indictment need not allege that the offense charged is
a second or subsequent offense to authorize the court to im-
pose an increased punishment for a second or subsequent
offense authorized by statute, nor is proof of that fact be-
yond the record of the former conviction before the court,
the two indictments having been tried on succeeding days
before the same court, essential to justify the imposition of
such punishment.
State v. Kelly, 89 S. C. 303, 71 S. E. 987.
An indictment attempting to set up former convictions for
similar offenses, charging defendant with "unlawfully sell-
ing intoxicating liquors," is insufficient to charge a viola-
tion of the law so as to form a basis for enhanced punish-
ment as in charging an offense the indictment must follow
the statute.
Brittain v. State (Tex. Cr. App.), 214 S. W. 351.
Of First Offense. — Under a law providing different pen-
alties for violations of the prohibition law for a first or sec-
ond offense, it is not necessary that an indictment for a first
offense should allege that it is the first offense.
Rosenberg v. State, 5 Ala. App. 196, 59 So. 366.
18. INDICTMENTS FOR SPECIAL OFFENSES.
Unlawful Possession. — An information charging only
that accused kept intoxicating liquors "for unlawful pur-
poses" is too indefinite to charge a felony under Laws 1917,
c. 187, § 11.
Wozniak v. State (Neb.), 174 N. W. 298.
An information containing recitals warranting classifica-
tion of defendant as a persistent violator of the prohibitory
law and charging that he unlawfully permitted another to
keep intoxicating liquors on premises controlled by defend-
272 TITLE II— SEC. 32 OF ACT
ant in violation of Laws 1917, c. 215, § 1, is not subject to
motion to quash.
State v. Macek, 104 Kan. 742, 180 Pac. 985.
An affidavit charging defendant with having intoxicants
in his possession for the purpose of selling or giving same
away in violation of law, need only allege those facts which
under the statute constitute the crime ; so that it need not
allege how liquors were obtained, whether C. O. D. or with
bill of lading attached, etc.
Gulfort v. Martin, 96 Miss. 131, 50 So. 502.
Keeping Place for Sale. — "An information that
charges a person with 'keeping a place' with the unlawful
intention and purpose of bartering, selling, or giving away
intoxicating liquors, fails to charge all the essential elements
of a crime, in that it does not charge an overt act, resulting
from the unlawful intent to violate the law, and a demur-
rer thereto on the ground that it failed to charge a crime
was well taken and should have been sustained."
Proctor v. State (Okla. Cr. App.), 176 Pac. 771.
Keeping Intoxicants Stored. — An information charg-
ing defendant with violating a statute by keeping intoxi-
cants stored in private residence, must charge residence was
also place of public resort; but where charge is stored in
other than private residence, it is immaterial whether place
is public resort or not, and there need be no specification.
People v. Labbe (Mich.), 168 N. W. 451.
Example of Insufficient Charge. — "A warrant charg-
ing that intoxicating liquors are being manufactured, sold,
offered, exposed, kept, or stored for sale, or bartered, in a
certain suit case, trunk, or other container in the possession
of a certain person in the roads, streets, alleys, or room in
the county, does not charge the person in whose posses-
sion the suit case, trunk or container is alleged to be with
manufacturing, selling, etc., nor with having, keeping, or
carrying such liquors unlawfully, nor with any other offense
under the statute."
Emsweller v. Wallace, 78 W. Va. 214, 88 S. E. 787.
TITLE II— SEC. 32 OF ACT 273
Unlawful Sale, Generally.— An information averring
every element of the offense of selling intoxicating liquor,
and only charging one offense and sufficiently informing de-
fendant of the offense he was called upon to answer, was
not demurrable.
Bundy v. State (Okla. Cr. App.), 184 Pac. 795.
A violation of the prohibitory law by means of a sale is
always sufficiently charged by stating that on a specified
date the defendant unlawfully sold intoxicating liquor with-
in the county and state. It is not necessary to describe the
kind of liquor sold or to name the person to whom the sale
was made, or to describe the offense with more particularity
in any other respect. The fact that such a violation of
law is aggravated in punishment by a previous conviction,
or become an element of a crime of a higher grade, does
not affect in any way the method of pleading.
State v. King, 92 Kan. 669, 141 Pac. 247.
A demurrer to an indictment for the sale of intoxicating
liquors made to one Jim Allen, because it did not state
whether Allen was white or colored, or at what point the
sale was consummated in the county where the transaction
was alleged to have taken place (and hence that the defend-
ant was not sufficiently informed to enable him to properly
defend against the charge) was properly overruled.
Pines v. State, 15 Ga. App. 348, 83 S. E. 198.
An indictment charging a wrongful sale of intoxicating
liquor was not demurrable for failure to allege a delivery.
Clopton v. Commonwealth, 109 Va. 813, 62 S. E. 1022.
An accusation which charges that the accused did, on a
named date, in the county of the prosecution, "sell and bar-
ter for a valuable consideration, both directly and indirectly,
alcoholic, spirituous, malt, and intoxicating liquors, intoxi-
cating bitters, and other drinks which, if drunk to excess
will produce intoxication," is not subject either to general
demurrer or to special demurrer on the ground that it does
not set out the offense charged with sufficient definiteness.
Brown v. State, 8 Ga. App. 691, 70 S. E. 40.
—18
274 TITLE II— SEC. 32 OF ACT
But where the warrant and accompanying affidavit charg-
ing an unlawful sale of liquor do not show whether the
sale was in violation of the state law or a municipal ordi-
nance, no valid judgment can be pronounced.
State v. Lunsford, 150 N. C. 862, 64 S. E. 765.
The sufficiency of specifications in a prosecution for il-
legal liquor selling is a matter of discretionary determina-
tion with the trial court.
State v. Truba, 88 Vt. 557, 93 Atl. 293.
Averment of Fact as to Agency. — In an indictment
charging one with selling liquor in violation of law, it is not
necessary to set forth whether the accused was acting as
principal or agent, as, if the accused made the sale, he would
naturally be in possession of the knowledge as to his ca-
pacity at the time of the offense.
State v. John, 129 La. 208, 55 So. 766.
Charging Sale to "S. and Others" — Demurrable.—
An information alleging a wrongful sale of intoxicating
liquors to "S. and others," was improper, in that it failed to
allege who the others were, or, if not known, that they were
unknown but in the absence of demurrer was sufficient to
support a conviction on proof of a joint sale.
State v. Julius, 29 S. D. 638, 137, 137 N. W. 590.
Charging Druggist with Unlawful Sale. — Under a
Local Option Act, making it unlawful to sell intoxicating
liquors in anti-saloon territory but permitting regularly li-
censed druggists to sell liquor for medicinal purposes in
good faith, on written prescription of a duly licensed physi-
cian in active practice, an information charging a licensed
druggist with unlawfully selling liquor in anti-saloon terri-
tory must identify the offense relied fully sold, bartered
and exchanged liquor in anti-saloon territory is sufficient.
Fehringer v. People, 59 Colo. 3, 147 Pac. 361.
Habitual Sales. — When the facts set forth in an indict-
ment clearly charge in substance and effect the habitual sale
of intoxicating liquors contrary to law, it is valid under a
law requiring indictment for maintaining a liquor nuisance
TITLE II— SEC. 32 OF ACT 275
to be in form of indictment, for unlawful sale, though the
word ''habitual" is not employed.
State v. Matarazza (N. J. Sup.), 107 Atl. 266.
Charging Engaged in Business.— Though the consti-
tution gives the right to demand the nature and cause of the
accusation, an information charging that defendant unlaw-
fully engaged in the business of selling intoxicating liquors
sufficiently informed him of the nature of the offense
charged, although it was not alleged that the offense was
committed through agents, since the constitutional provi-
sion does not require the state to inform a defendant of the
particular evidentiary means the state will use to establish
the guilt of defendant.
State v. Otto, 38 S. D. 353, 161 N. W. 340.
"A citizen cannot be successfully prosecuted under a
charge of engaging generally in the unlawful business of
selling whisky. For various and altogether sufficient reasons,
in a charge of that character, there must be allegation and
proof of specific conduct constituting a breach of the crim-
inal law (State v. Tisdale, 145 N. C. 422, 58 S. E. 998, 13
Ann. Cas. 125), a requirement guaranteed by our constitu-
tion and necessary in common fairness to enable a defend-
ant to properly prepare his defense and to protect him from
a second prosecution on the same state of facts."
State v. Allen, 161 N. C. 226, 75 S. E. 1082.
Charging Common Nuisance. — An indictment charg-
ing that accused at specified times maintained a specified
place used for illegal sale and illegal keeping of liquors,
where liquors were sold for tippling places, and that the
place was a resort where liquors were sold, given away,
drunk, and dispensed and a common nuisance, etc., is suffi-
cient under Rev. St. c. 22 1, 2, defining common nuisances,
and prescribing punishment for keeping them.
State v. Fogg, 107 Me. 177, 77 Atl. 714.
Charging Offense of Acting as Agent or Assistant
in Selling. — An indictment, charging that defendant sold,
offered for sale, kept for sale, or otherwise disposed of pro-
hibited liquors, is sufficiently broad to charge the offense
276 TITLE II— Sec. 32 OF ACT
under a statute providing that any person, who shall act as
agent or assisting friend of either seller or buyer in procur-
ing an unlawful sale of intoxicating liquors shall be pun-
ishable as if he had sold the prohibited liquors.
Rogers v. State (Ala. App.), 73 So. 994.
Charging Subterfuge for Sale. — When the state relies
on giving away or otherwise furnishing intoxicating liquor
as a subterfuge for a sale, the fact must be pleaded in or-
der that the court might determine whether or not a crime
has been committed.
Jenkins v. State, 11 Okla. Cr. App. 168, 145 Pac. 500.
Giving Prescription Illegally. — An indictment for ille-
gally issuing a prescription for intoxicating liquor was suf-
ficient, where the prescription was described in such man-
ner that the court by inspection might pronounce whether
it was such an instrument as might be the basis of the of-
fense charged and it was not necessary, after this to set it
out in haec verba.
McAllister v. State, 156 Ala. 122, 47 So. 161.
Transporting "in" or "into."— If the word "in" had
been used without the word "into" in information charg-
ing the defendant with transporting whisky "into and in the
state and county," the charge, though imperfect, would have
been sufficient to sustain conviction for transporting from
one place to another within the state, if no objections had
been made.
Whitley v. State (Ark.), 215 S. W. 703.
An indictment, charging that liquors were unlawfully
transported into prohibited territory, would sufficiently
charge an offense to suffice, on application for habeas corpus,
unless there was no law on which the prosecution could be
founded. (Per Morrow, J.)
Ex parte Fulton (Tex. Cr. App.), 215 S. W. 331.
Indictments against a railroad which did not allege that
the consignees, to whom liquors were alleged to have been
transported and delivered by the road in dry territory, were
neither dealers, brewers, nor wholesale dealers, transporta-
TITLE II— SEC. 32 OF ACT 277
tion to which, without certain information on the package,
was permissible under the statute, do not state an offense.
Commonwealth v. Louisville, etc., R. Co. (Ky ) 215 S
W. 938.
Charge that defendants unlawfully transported over pub-
lic highway in dry county certain intoxicating liquors in
violation of statute did not charge offense under Florida
statute making it "unlawful for any common or other car-
rier to transport any intoxicating liquors over highways of
this state into any county," etc., as non constat defendant
was transporting liquors through, and not into, dry terri-
tory, and because not alleging that he was transporting them
as a common carrier.
Foxworth v. Law (Fla.), 82 So. 55.
Under Virginia Prohibition Act (Acts 1916, c. 146) § 39,
the phrases "for use in this state" and "for sale" are not es-
sential ingredients of the offense of bringing liquor into the
state nor for transporting from one point to another in the
state, and need not be alleged in an indictment.
Burton v. Commonwealth, 122 Va. 847, 94 S. E. 923.
Averment of Attempt. — An indictment for attempting
to introduce intoxicating liquor into the state of Arizona
under Const, art. 23, § 1, must aver the ultimate facts con-
stituting the offense, i. e., the intention of accused to pass
such liquors into the state from another state or from a
foreign country, a direct act done in furtherance of such
intention, and the failure of the attempt due to some in-
tervening cause beyond the control of accused.
Baca v. State, 18 Ariz. 350, 161 Pac. 686.
A presentment for transporting intoxicating liquor in vio-
lation of statute, is not bad because it omits the word "per-
sonally" in describing the transporting.
Liquor Transp. Cases v. State, 140 Tenn. (13 Thomp-
son) 582, 205 S. W. 423, 424.
Introducing Liquor into Indian Country. — In view of
Rev. St. § 1025 (U. S. Comp. St. 1916, § 1691), declaring
that no indictment shall be deemed insufficient by reason of
278 TITLE II— SEC. 32 OF ACT
any defect or imperfection in the matter of form only, an
indictment charging that accused, "in the county of Jeffer-
son, state of Oklahoma, in the district and within the ju-
risdiction of said court, did * * * unlawfully, know-
ingly, willfully, and feloniously introduce and carry into
the county and district from without the state of Oklahoma
* * * intoxicating liquor, * * * the portion of the
county and district into which the liquor was so introduced
having been within the limits of the Indian Territory and
a part thereof prior to admission," must be deemed suffi-
cient to charge the offense of introducing from without in-
toxicating liquor into that portion of the state of Oklahoma
which was formerly the Indian Territory, for, while the in-
dictment was subject to criticism as to form, it was suffi-
cient to advise accused of the offense with which he was
charged, and in event of conviction would have supported
a plea of former jeopardy.
Dosset v. United States, 161 C. C. A. 20, 248 Fed. 902.
19. AMENDMENTS.
Charge of Additional and Distinct Offense.— An act
providing that the affidavit or complaint in a prosecution
for violating laws to suppress intemperance may be amended
to meet the ends of justice for any informality, irregularity,
or technicality, does not authorize the amendment of an af-
fidavit charging a complete offense and giving defendant no-
tice of the accusation as required by Const. 1901, § 6, so as
to charge an additional and distinct offense.
Echols v. State (Ala. App.), 75 So. 814.
Striking Out Name. — In a prosecution for maintaining
an unlawful drinking place where the affidavit charged that
the offense was committed by one Jim Kirk, alias Scrap, the
allowance of a trial amendment by the solicitor, which con-
sisted of the striking out of the name James Kirk, was not
error.
Kirk v. State, 10 Ala. App. 216, 65 So. 195.
Inserting Name. — A petition, headed "State of Georgia,
Whitfield County," directed "To the Superior Court of Said
County," and regularly filed with clerk of that court, charg-
TITLE II— SEC. 32 OF ACT 279
ing that a described car was property of defendant, of Ca-
toosa County, and was being unlawfully used by him, and by
others with his knowledge and consent, in unlawfully trans-
porting liquors through said county, was properly amended
by inserting, after latter word "county," the words "of Whit-
field."
Burgan v. State (Ga. App.), 99 S. E. 636.
Changing Place to Which Liquor Conveyed. — Amend-
ment of information for unlawfully transporting intoxicat-
ing liquor, made on motion of county attorney, changing
place to which liquor was alleged to have been conveyed
from intersection of Western and G. avenues to a place
about a quarter of a mile west of that intersection, did not
materially change offense charged in original information.
Thayer v. State (Okla. Cr. App.), 183 Pac. 931.
To Conform to Proof. — Where information charged
defendant with transporting whisky "into and in the state
and county," and the case was submitted on issue of trans-
portation from one place to another in the state, the infor-
mation could have been amended or treated as an amend-
ment to conform to the proof.
Whitley v. State (Ark.), 215 S. W. 703.
Arrest.
Without Warrant. — An officer may not arrest for a
misdemeanor without a warrant on information or suspi-
cion, unless the misdemeanor was actually committed in his
presence; and hence an arrest was not justifiable, though
the officer suspected that the person arrested had intoxicat-
ing liquors in his suit case, in violation of the law prohibit-
ing the illegal manufacture, transportation, and sale of such
liquors.
Caffinni v. Hermann, 112 Me. 282, 91 Atl. 1009.
Force Allowable. — And even conceding that officers
may be authorized to arrest without warrant that author-
ity includes the lawful power to use only such force as an
ordinarily prudent and intelligent person, with knowledge
280 TITLE II— SEC. 32 OP ACT
and in situation of arresting officer, would have deemed
necessary.
Castle v. Lewis (C. C. A.), 254 Fed. 917, 918.
Blanket Warrant. — The warrant in a prosecution for
the unlawful sale of intoxicating liquors cannot be made a
blanket for all future offenses within its purview.
Robinson v. Commonwealth, 118 Va. 785, 87 S. E. 553.
m. Defenses.
Intent. — The matter of intent is not involved in accusa-
tion of selling intoxicating liquor, and defendant would be
guilty if he or any one for him actually sold intoxicants on
the premises, whether defendant intended to do so or not.
State v. Fountain (la.), 168 N. W. 285.
Carty v. State, 135 Ark. 169, 204 S. W. 207.
People v. Emmons, 178 Mich. 126, 144 N. W. 479, Ann.
Cas. 1915D, 425.
Hall v. State, 7 Ga. App. 186, 66 S. E. 486.
So that the sale of a beverage containing 5, 6 per cent
alcohol at a soft drink counter in a local option district
was a violation of the act though defendant had been in-
formed and believed that it contained no alcohol, and did
not intend to violate the law.
People v. Hatinger, 174 Mich. 333, 140 N. W. 648.
Under a constitution declaring that every person who
sells any intoxicating liquor shall be guilty of a misdemean-
or, and a statute defining the classes of persons capable of
committing crimes which excepts those who commit the
act under a mistake of fact which disproves any criminal
intent, where accused, charged with selling intoxicating liq-
uors, asserted that he did not know of the intoxicating na-
ture of the liquors, it was held that while as respects crimes
involving moral turpitude, criminal intent or guilty knowl-
edge is an essential element, that rule does not apply to a
violation of the prohibition amendment.
Troutner v. State, 17 Ariz. 506, 154 Pac. 1048, L. R. A.
1916D, 262.
TITLE II— SEC. 32 OF ACT 281
"Where one is charged with keeping on hand intoxicat-
ing liquor at a place of business or at a public place, it is
immaterial for what purpose the liquor was there kept, or,
in other words, what may have been the intent of the de-
fendant, since 'the criminal act is the keeping on hand.'
Cohen v. State, 7 Ga. App. 5, 65 S. E. 1096. Merely to al-
low liquors to be deposited in one's place of business under
peculiar circumstances, followed by an immediate removal
of them, might not constitute a violation of the statute.
Cassidy v. State, 10 Ga. App. 123, 72 S. E. 939."
Griffin v. State, 15 Ga. App. 552, 83 S. E. 871.
The belief of one accused of selling ardent spirits with-
out a license as to the character of the beverage sold, or his
intention to violate the law, is not material in determining
his guilt.
Bracy v. Commonwealth, 119 Va. 867, 89 S. E. 144.
Intention Not to Transfer Right of Property or
Possession. — There was no illegal sale or giving away of
intoxicating liquor, unless the delivery of the liquor was
accompanied by an intention to transfer the right of prop-
erty and possession thereon for or without a consideration.
O'Brien v. State, 3 Ala. App. 173, 57 So. 1028.
In view of Alabama Acts 1909, Sp. Sess. p. 91, § 31,
providing that the term "otherwise disposed of" following
the words "sold and offered for sale," etc., when used in
any indictment, shall include a barter, exchange, giving
away, furnishing, or other manner of disposition, the de-
livery of a bottle of whisky by accused to an acquaintance
to keep for him while accused went before the grand jury
to testify would not support an indictment charging that
he sold or, otherwise disposed of intoxicants contrary to
law, in absence of a showing that he intended or consented
that such acquaintance could use some part of the liquor.
O'Brien v. State, 3 Ala. App. 173, 57 So. 1028.
That Imported Liquor Was Intended for Accused's
Own Use. — Where the constitution prohibiting the sale of
intoxicating liquors or the introduction into the state does
not make the drinking of intoxicants an offense, the intro-
282 TITLE II— SEC. 32 OF ACT
duction into the state of intoxicating liquors intended for
accused's own use is not an offense and the fact that they
were intended for his own use may be shown as a defense.
Sturgeon v. State, 17 Ariz. 513, 154 Pac. 1050, L. R.
A. 1917B, 1230.
Carrying for Another. — "To an indictment charging
unlawful carriage of liquors for another it is not a suffi-
cient defense that the carrier is the parent or guardian of
a minor for whom the transportation was made."
State v. Duff, 81 W. Va. 407, 94 S. E. 498, 499.
Non-Intoxicating Character of Liquor. — No ac-
quittal of the charge of selling liquor could be directed in
case the jury found that the person receiving the liquor
would not ibe intoxicated thereby. The only defense
would be that no person could receive any intoxicating ef-
fect therefrom; or in other words, that it was not beer of
the sort which congress had in mind in using the word "beer"
in the meaning of that word as used at the time of the
passing of the act — in other words, any kind of malt
beer, which was in legal sense an "intoxicating liquor" as
congress and public usage understood the term.
United States v. Schmauder (D. C.), 258 Fed. 251.
Entrapment. — That a seaman in uniform encouraged
and incited a defendant to sell him liquor for the purpose of
obtaining evidence against him is not a bar to the prosecu-
tion, where the act was done because of prior complaints
of violation of the law by defendant.
Fetters v. United States (C. C. A.), 260 Fed. 142.
As said in another case: "But something more than the
mere use of decoys or detectives by the government is
necessary to raise an issue of estoppel. Grimm v. United
States, 156 U. S. 604, 15 Sup. Ct. 470, 39 L. Ed. 550;
Goode v. United States, 159 U. S. 663, 16 Sup. Ct. 136, 40
L. Ed. 297. There must be deception of such a character
as to make it unconscionable for the government to press
its case."
Goldstein v. United States (C. C. A.), 256 Fed. 813,
815.
TITLE II— SEC. 32 OF ACT 283
Misleading Defendant to Believe Act Lawful.
— The selling of liquor to an Indian, in violation of Rev
St. § 1, 2139 (Comp. St. 1916, § 4136a), and Act Jan. 30^
1897, c. 109, § 1, 29 Stat. 506 (Comp. St. 1916, § 4137), is
an offense malum prohibitum, of which the intent or knowl-
edge of the seller is not an element, and is immaterial ; but
the government cannot maintain an indictment for such
offense, when by its own conduct, through its agents, it
misled the defendant into believing that the act was law-
ful, as that the purchaser was not an Indian, but a Mexican.
Voves v. States, 161 C. C. A. 227, 249 Fed. 191.
Former Acquittal or Conviction.— The offense of keep-
ing intoxicating liquors for sale, which is charged as being
committed between certain dates, is a continuing offense as
to such time and an acquittal under such an information
will be a bar to a subsequent prosecution for a sale as a
beverage within such dates.
State v. Lesh, 27 N. D. 165, 145 N. W. 829.
And under a statute declaring certain places to be com-
mon nuisances, a conviction for keeping bars other prose-
cution under the sale section for the period covered by the
indictment.
State v. Arsenault, 106 Me. 192, 76 Atl. 410.
Where accused, who was indicted for selling spirituous
liquor to one M. on the 15th of November, had previously
been indicted for a sale on December 5th, and in both cases
M. testified that accused had frequently sold him whisky
but he could not give the dates of any of the sales, it was
held that, as the time charged in the indictment was imma-
terial, the acquittal in the first prosecution was a bar to the
second: it being apparent that the evidence necessary to
support the second indictment would have been sufficient to
convict the defendant under the first.
State v. Freeman, 162 N. C. 594, 77 S. E. 780, 45 L.
R. A., N. S., 977n.
"Whether all, several of, or only one of the legal require-
ments is disobeyed by the carrier in a single delivery of
liquor to the single consignee, it will and does constitute
284 TITLE II— SEC. 32 OF ACT
,but a single offense under the statute. Manifestly, if in a
penal action or indictment against the carrier for a viola-
tion of one of the provisions of the section in question or
of a specified number of them short of the whole, com-
mitted in a single delivery of liquor to the consignee, the
conviction or acquittal of the defendant results, such car-
rier could not, in another penal action or under another in-
dictment growing out of the same delivery of liquor, be
convicted of a violation of other provisions of the section
than those for which he was tried in the prosecution first
disposed of. The judgment in the first prosecution would
bar a conviction in the second."
Adams Exp. Co. v. Commonwealth, 182 Ky. 748, 207
S. W. 482, 483.
After Election by State. — Where the state elected to
try its prosecution for illegally selling intoxicants as for an
unlawful sale to a particular person, the choice being prop-
erly induced, having been made a matter of public record, the
conviction can be pleaded in bar to any further prosecution
for a sale on such occasion to such person.
State v. Wilbur (Ore.), 166 Pac. 51.
Conviction on One Count as Acquittal on Other
Counts. — Where defendant was convicted of one count of
a complaint for violation of prohibition law, this was an
acquittal as to charge embodied in other counts.
Oldacre v. State (Ala. App.), 75 So. 827.
But verdict of not guilty of the offense charged by the
first count of the indictment, the illegal sale of intoxicating
liquors, does not bar another trial under the second count,
charging that he was an accessory to such a sale by another,
if there were errors in the proceedings calling for reversal.
Harris v. State (Ark.), 215 S. W. 620.
Subsequent Prosecution for Different Offense. — A
plea that the accused had been tried and acquitted for fur-
nishing liquor to a minor constituted no bar to a subsequent
prosecution for selling liquor illegally.
Webb v. State, 13 Ga. App. 733, 80 S. E. 14.
TITLE II— SEC. 32 OF ACT 285
And though on prosecution for sale of intoxicating cider
to M., on the issue of the cider being intoxicating, others
testified to sales to them of intoxicating cider, the acquttal
is not available on subsequent prosecution for sale to them.
Turner v. State, 130 Ark. 48, 196 S. W. 477.
Different Jurisdictions.— In a prosecution for illegally
making alcoholic liquors, a plea that defendant had pleaded
guilty in the United States District Court for violating the
internal revenue laws was not good as a plea of former
jeopardy; the crimes being distinct and the jurisdictions be-
ing different.
Tharpe v. State (Ga. App.), 100 S. E. 754.
Charge of Crime and Contempt Different. — One en-
joined from sale of intoxicating liquors and maintenance of
a nuisance, by a contempt proceeding for violation of the
decree, is not thereby put in jeopardy twice for the same
offense, as in one case he is punished for a crime, and in
the other for a contempt of court.
State v. Kurent (Kan.), 184 Pac. 721.
Different Charges. — Defendant acquitted of charge of
unlawfully keeping intoxicating liquors is not put in jeop-
ardy a second time by prosecution for permitting another
to keep intoxicating liquors on premises controlled by de-
fendant, though the time and place of each offense were
charged to be the same.
State v. Macek, 104 Kan. 742, 180 Pac. 985.
Adjudication in Search Warrant Proceedings. — Ad-
judication in search warrant proceedings in a justice's
court that liquors in a drug store were not kept for illegal
sale did not acquit of any offense one, who voluntarily ap-
peared under Code Supplemental Supp. § 2415, as the
owner, so as to render Acts 37th Gen. Assem. c. 322, § 2,
granting the state a right to appeal in such proceedings,
unconstitutional as violating Const, art. 1, § 12, prohibit-
ing a second jeopardy for the same offense ; search warrant
proceedings being merely quasi criminal.
State v. Taggart (la.), 172 N. W. 299.
286 TITLE II— SEC. 32 OF ACT
IV. Jurisdiction.
Cannot Be Conferred by Consent. — As jurisdiction
cannot be conferred by consent, especially in criminal cases,
a stipulation that the court had jurisdiction in a prosecution
for unlawfully selling liquor is unavailing, where the other
stipulated facts necessarily showed that it was without ju-
risdiction because the sale occurred in another county.
People v. Meloche, 186 Mich. 536, 152 N. W. 918.
Jurisdiction of Sale by Letter. — Where a sale of in-
toxicating liquor is solicited by a communication written
or printed, and mailed in one state, as no crime is com-
mitted until the delivery of the letter in the state where
such solicitation is forbidden, the courts of the county
where the letter is received by the addressee of such letter
and its contents are ascertained have jurisdiction of such
offense.
Rose v. State, 4 Ga. App. 588, 62 S. E. 117.
At Place of Shipment. — "When intoxicating liquors
are delivered for shipment or shipped, or when they are
received for shipment to be carried into dry territory, the
offense is committed in the place of the shipment."
State v. Lieber, 143 La. 158, 78 So. 431.
V. Continuance.
Where defendant and his brother were both charged with
having possession of intoxicating liquor for the purpose of
sale, defendant is not entitled to a continuation because the
judge before whom he was tried was the same as the one
who tried defendant's brother a week previous.
State v. Baldwin (N. C.), 100 S. E. 348.
In a prosecution for the unlawful sale of intoxicants,
where the state relied on a sale at a different time from
that laid in the indictment, accused, to be entitled to a con-
tinuance, must have moved therefor at the earliest possible
moment and failure to do so until after a verdict is a
waiver of the right.
Peebles v. State, 105 Miss. 834, 63 So. 27.
TITLE II— SEC. 32 OF ACT 287
VI. Election between Offenses Charged.
Where the evidence tended to prove defendant guilty
of each of several offenses charged in the alternative in a
single count, under which defendant could be convicted of
only one of the offenses, he was entitled, before putting
in his defense, to require the state to elect the offense on
which it would rely for a conviction.
Warrick v. State, 8 Ala. App. 391, 62 So. 342.
See also Moss v. State, 3 Ala. App. 189, 58 So. 62.
But where, under indictment charging illegal sale and
offering for sale of intoxicating liquors, both the sale and
possession were proved as arising from a single transac-
tion, it was not error to refuse to compel the state to
elect.
Herring v. State (Ala. App.), 75 So. 646.
Each sale of whisky is a separate and distinct offense for
which accused may be convicted.
State v. Kelly, 89 S. C. 303, 71 S. E. 987.
And under an indictment charging that defendant sold,
offered for sale, kept for sale, or otherwise disposed of
spirituous, vinous, or malt liquors contrary to law, evidence
of any of the offenses charged alternatively may be ad-
mitted and the state is not required to elect upon which
of the charges it will rely for conviction.
Spigener v. State, 11 Ala. App. 296, 66 So. 896.
Upon the trial of an indictment for the unlawful sale of
intoxicating liquors, the state may offer evidence of more
than one sale to the same person, and the defendant can-
not compel an election, although it is within the discretion
of the court to allow the motion.
State v. Freeman, 162 N. C. 594, 77 S. E. 780, 45 L. R.
A., N. S., 97'7n.
See also, State v. Cardwell, 166 N. C. 309, 81 S. E. 628.
\Yhere the statute permits more than one offense against
the prohibition law to be charged in a single count, defend-
ants have no absolute right to demand an election of the
288 TITLE II— SEC. 32 OF ACT
offense to be prosecuted, but it is within the discretion of
the trial court whether an election will be required.
Pine v. Commonwealth, 121 Va. 812, 93 S. E. 652, 653.
See also, Allison v. State, 1 Ala. App. 206, 55 So. 453.
And where in a prosecution for violating the prohibitory
law, the state's solicitor elected to ask a conviction under
the second count of the indictment for maintaining an un-
lawful drinking place during October 1911, and prior to the
27th day thereof, defendant was not entitled to a further
election of the particular day during that month on which
the alleged offense was committed; the offense charged be-
ing one that might consist of and be evidenced by a series
of acts or a continuous course of conduct extending over a
period of more than a single day.
Warrick v. State, 8 Ala. App. 391, 62 So. 342.
Where the indictment charged that defendant sold, of-
fered for sale, kept for sale, or otherwise disposed of pro-
hibited liquors, but the evidence showed only one transac-
tion and one offense, there is no occasion for an election.
Rogers v. State (Ala. App.), 73 So. 994.
But under Ark. Act Feb. 6, 1915 (Laws 1915, p. 98),
declaring that it shall be unlawful for any person to manu-
facture, sell, or give away, or be interested in the manufac-
ture, sale, or giving away of, alcoholic liquors, etc., the mak-
ing of wine and the selling of wine are two distinct offenses,
and when charged conjunctively in the same indictment the
state should ibe compelled to elect.
Chronister v. State (Ark.), 215 S. W. 634.
VII. Argument of Counsel.
In a prosecution for selling intoxicating liquor, the pros-
ecuting attorney's opening statement that "prosecuting wit-
ness, after making inquiries and having information as to
the defendant's selling whisky," etc., presumably leading up
to an outline of the witness' testimony, and not as an at-
tempt to introduce hearsay evidence, and apparently in good
faith, must be held not misconduct of counsel; good faith
being the general test in passing upon preliminary state-
* ments in criminal cases to the jury.
Nelson v. State (Ark.), 212 S. W. 93.
TITLE II— SEC. 32 OF ACT 289
Remarks of Counsel in Argument.— Where the pros-
ecuting witness on a trial for selling liquor was accustomed
to purchase whisky from persons illegally selling it, and he
drank to excess, the statement of the solicitor in his clos-
ing argument that, if a preacher was snake-bitten, he could
not procure liquor from accused, made in response to an
argument on behalf of accused that the jury should not be-
lieve the prosecuting witness, because he frequented blind
tigers, was not ground for reversal.
Roden v. State, 3 Ala. App. 193, 58 So. 74.
It is improper for the solicitor in argument to say:
"Blind tigers are running * * * and you ought to strip
that kind of stuff. The good people * * * are all talking
about it, and they are trying to put down these blind tigers,
and I ask you to help me convict them."
Kinsman v. State, 41 Ga. App. 481, 81 S. E. 367.
In a prosecution for having possession of intoxicating
liquor with intent to sell, it was not error to permit the so-
licitor to restate his contentions while the court was re-
capitulating them on both sides, and, if the contentions were
misstated, the court's attention' should have been called to
it so that the proper correction could have been made.
State v. Baldwin (N. C.), 100 S. E. 345.
Vin. Misconduct of Court or Officers.
Remarks of Judge. — "The defendant was tried for a
violation of what is known as the 'bone dry' law, under an
accusation which charged that he did 'unlawfully transport,
ship and carry and cause to be transported, shipped, and
carried from a point without this state to a point within
this state, and from place to place in this state, spirituous,
vinous, malted, fermented, and intoxicating liquors; and
did have, receive, control, and possess, in this state, spirit-
uous, vinous, malted and fermented liquors.' The evidence
shows that there was found at his store a beer bottle about
half full of whisky, and at his residence four full quarts
of whisky, five bottles, and a gallon jug all partly filled with
whisky. He admitted having the whisky in his possession,
but sought to excuse himself from criminal liability there-
for by claiming that he was ill and that his physician had
—19
290 TITLE II— SEC. 32 OF ACT
prescribed the whisky for him. The special ground of the
motion for new trial is as follows : 'The court erred in
stating in the presence of the jury, when defendant offered
Dr. George H. Lehman, a practicing physician, to prove
that as the physician of the defendant he had prescribed a
certain amount of whisky for him, deeming it absolutely
essential to the preservation of his life, that "such would
not be a defense to the present accusation." ' Under the
facts of this case, the judge did not err in making the above
assertion, which was a correct statement of the law. How-
ever, if the defendant seeks to take advantage of such al-
leged error on the part of the judge during the progress of
the case, he should do so by a motion to declare a mistrial."
Stapleton v. State, 19 Ga. App. 36, 90 S. E. 1029, and
cases cited.
Wilcox v. State, 19 Ga. App. 83, 90 S. E. 1032.
Perdue v. State, 135 Ga. 277, 69 S. E. 184.
Waldemar v. State, 21 Ga. App. 504, 94 S. E. 624, 625.
In Another Trial. — Where both defendant and his
brother were separately convicted of having possession of
intoxicating liquor for purpose of sale, the fact that the
trial judge, in sentencing defendant's brother a week pre-
vious, remarked that in his opinion the two were delivering
liquor to people of a particular town, is no ground for re-
versing judgment of conviction against defendant on the
theory that such statement before bystanders and jury in
first case was an expression of opinion as to defendant's
guilt, for Revisal 1905, § 535, prohibiting the judge from
expressing an opinion as to the facts, being in derogation
of common law, should be strictly construed, and further-
more section 1959 required that the panel for the first week
in which the remark was made should be discharged, so
there was no probability that any juror trying defendant
heard the remark.
State v. Baldwin (N. C.), 100 S. E. 348.
Presumption That Remarks of Judge in One Case
Were Disregarded in Another Case. — It will be pre-
sumed, where the judge in sentencing defendant's brother,
who was also convicted of having possession of intoxicants
TITLE II— SEC. 32 OF ACT 291
for purpose of sale, made a remark as to their unlawful
sales, that if any one who sat as a juror in the prosecution
against defendant heard the remark it was disregarded.
State v. Baldwin (N. C.), 100 S. E. 348.
In a prosecution for violation of the prohibition law
where the jury had returned in the evening and reported a
disagreement at 9:30 the next morning, a lecture by the
court urging the jury to reach an agreement and remand-
ing them to the bailiff, after which a verdict of conviction
was rendered at 2:35 the same day, is not reversible error.
McLean v. People (Colo.), 180 Pac. 676.
Remarks of Bailiff. — In a prosecution for violating the
prohibition law by the sale of Jamaica ginger, it is improper
for the bailiff in charge of the jury to remark in their hear-
ing and presence upon the intoxicating properties of Ja-
maica ginger.
McLean v. People (Colo.), 180 Pac. 676.
Improper Influences on Jury. — Where, in a prosecu-
tion for bringing intoxicating liquors into the state, certain
women sat directly in front of the jury holding large posters
condemning the liquor traffic, which the jury saw and read,
a new trial should have been granted, since their action was
an attempt to impede justice, to deny the defendant a fair
and impartial trial, and to influence the jury to arrive at a
verdict improperly.
State v. Gens, 107 S. C. 448, 93 S. E. 139.
The exhibition, during a trial for introducing intoxicat-
ing liqors into the state, of a blackboard showing two other
similar indictments against defendant, and collecting in the
courtroom large quantities of whisky involved in such other
cases was improper, where the sole defense was that ac-
cused received the whisky inside the state.
Murray v. State, 19 Ariz. 49, 165 Pac. 315.
In a prosecution for violating the prohibition law, it was
not prejudicial error to keep a row of jugs of whisky con-
tinually in view of the jury without introducing such liq-
uor in evidence; it being admitted that no prejudice would
TITLE II— SEC. 32 OF ACT
have resulted if the jugs had been properly identified and
offered in evidence.
State v. Butler (la.), 173 N. W. 239.
IX. Jury.
That a juror was acquainted with the prosecuting attor-
ney and had confidence in his ability and integrity and be-
lieved in the prohibition law did not disqualify him.
State v. Sullivan, 97 Wash. 639, 166 Pac. 1123.
Timely Objection to Question on Voir Dire Neces-
sary.— While the question propounded by the solicitor to
the jurors on the voir dire: "Are you opposed to the en-
forcement of the law known as the prohibition law in
Georgia?" was unauthorized 'by law yet where no objection
was made to the question when propounded, and the ac-
cused stated that he had no objection to the panel of jurors
as put upon him, either as a whole or separately, he will not
be heard, after the verdict, to object to the question.
Rothschild v. State, 12 Ga. App. 728, 78 S. E. 201.
X. Instructions.
Statute Definition "Sell"— "Sale."— "The definition
given in section 3188, Gen. St. 1913, of the meaning of the
terms 'sell' or 'sale' in chapter 16, Gen. St. 1913 (the law
relating to intoxicating liquor), is sufficiently clear and com-
plete, and may be given to the jury without further explana-
tion."
State v. Meyers, 132 Minn. 4, 155 N. W. 766.
"Intoxicating Liquor." — In a prosecution for the
illegal sale of intoxicating liquors, where the evidence showed
a sale of whisky it was proper for the court to instruct the
jury that whisky is an intoxicating liquor, and where the
evidence showed a sale of whisky, it was unnecessary for
the court to define intoxicating liquor further.
Johnson v. State, 81 Tex. Cr. App. 71, 193 S. W. 674.
In an instruction as to keeping on hand liquor, the term
TITLE II— SEC. 32 OF ACT 293
"liquor" implied intoxicating liquor, and the jury could not
have misunderstood the charge.
Brooks v. State, 19 Ga. App. 3, 90 S. E. 989.
See also, Mundy v. State, 9 Ga. App. 835, 72 S. E. 300.
An instruction to the jury "that in order to make any
fluid or liquid an intoxicating drink, it must be capable of
producing intoxication in the usual sense and common ac-
ceptation of the term intoxication; that is it must have
in it a sufficient amount of alcohol to produce intoxication
when consumed in sufficient quantities," properly propounds
the law in such cases, and it was not error to reject other
instructions propounding a different rule of liability.
State v. Henry, 74 W. Va. 72, 81 S. E. 569.
In a prosecution for violating the prohibition law by sell-
ing Jamaica ginger, instructions to find for defendant if the
compound sold be such that its use as a beverage is unde-
sirable or practically impossible by reason of other ingred-
ients and the liquor is used merely as a vehicle for, or pres-
ervation of, other ingredients and to hold them in solution,
although its use may produce intoxication, or if it is a
standard or medical preparation named in the United
States dispensatory, was properly refused.
McLean v. People (Colo.), 180 Pac. 676.
As to Intoxicating Character of Cider.— In a prose-
cution for violating the local option law, where it was a
serious issue whether the cider sold by defendant was in-
toxicating, the court should have charged the request that
before the jury could convict they must be satisfied that de-
fendant sold one quart of cider to the prosecuting witness,
and that the cider was intoxicating i. e., when taken into the
stomach of an ordinary man in reasonable quantities would
intoxicate him.
Salvador v. State, 79 Tex. Cr. App. 343, 185 S. \Y. 12.
As to Sale of Fermented Cider. — In a prosecution for
a violation of the local option law, an instruction that the
sale of fermented cider is a violation of the law was .not
erroneous for failure to state the exact degree or scientific
294 TITLE II— SEC. 32 OF ACT
standard of fermentation, where it gave the common mean-
ing of the term fermented cider.
People v. Emmons, 178 Mich. 126, 144 N. W. 479,
Ann. Cas. 191 5D, 425.
Right to Instructions on Theory of Defense. — Where
an accusation names the agent delivering the second ship-
ment of liquor, and the accused defends upon the idea that
the person named in the accusation did not make the sec-
ond delivery, but that it was made by another, and submits
proof to sustain this contention, it is error for the court
to ignore this theory of the defendant and refuse to give
him the benefit thereof in the charge to the jury.
Southern Exp. Co. v. State (Ga. App.), 97 S. E. 550.
In a prosecution for a violation of the prohibition law,
the admission of evidence of the finding of beer in a build-
ing with which defendant was not shown to have had any
connection, and the refusal of an instruction that if defend-
ant had no connection with the building, the evidence could
not be considered, is improper.
Grider v. State, 10 Ala. App. 170, 64 So. 756.
See also, Dosset v. United States, 161 C. C. A. 20, 248
Fed. 902.
Kemp v. State, 130 Ark. 175, 196 S. W. 918.
A person who is charged with unlawfully conveying in-
toxicating liquor from one place within this state to an-
other place therein and within the jurisdiction of the trial
court, and who, as his defense to the charge, offers testi-
mony to establish the fact that he acted innocently and with-
out knowledge that the packages conveyed contained intox-
icating liquor, and without sufficient information to put him
on notice to this effect, is entitled to have his defense sub-
mitted to the jury by proper instructions of the court.
Golpi -v. State, 14 Okla. Cr. App. 564, 174 Pac. 288.
In a prosecution for violation of a statute denouncing the
shipment, transportation, or delivery of intoxicating liquors
from one state, territory, or foreign country to another
•person, firm, or corporation in Arkansas, it was error for
TITLE II— SEC. 32 OF ACT 295
the court to instruct that if defendants obtained liquors in
another state, and from that point brought them into a
county of Arkansas, they were guilty, while refusing to in-
struct that the bringing of liquor into Arkansas for the
personal use of the individual who brings it does not con-
stitute an offense.
Winfrey v. State, 133 Ark. 357, 202 S. W. 23.
In a prosecution under indictment charging in two counts
that defendant unlawfully sold intoxicating liquors and was
an accessory to such sale by another, the trial court should
have instructed, on defendant's request, that one who as-
sists a purchaser in buying intoxicating liquors is not guilty
of any offense, etc., which correctly stated the law, and im-
properly modified the instruction to limit its application to
the first count, which charged an illegal sale by defendant.
Harris v. State (Ark.), 215 S. W. 620.
In a prosecution for violating the "blind tiger" law, the
trial court erred in refusing to instruct that, before the jury
could convict on circumstantial evidence alone, the circum-
stances must be so convincing as to be inconsistent with
any reasonable hypothesis of innocence, while giving no
other instruction embodying such proposition.
Robinson v. State (Ind.), 24 N. E. 489.
In trial for unlawful transportation of liquor, an instruc-
tion leaving no alternative but to convict, though defendant
had no knowledge of, or reason to know, contents of a
package placed in his automobile by state's witness, which
question was raised by defendant's testimony, which, if
true, would have entitled him to acquittal, was erroneous
as depriving defendant of benefit of his theory of defense.
Peyton v. State (Okla. Cr. App.), 183 Pac. 639.
In a prosecution for selling whisky contrary to law,
where the court instructed that if defendant acted as an
intermediary between the buyer and seller; and thus as-
sisted the seller in making the sale, he was guilty as though
he had sold whisky himself, it was error to refuse to in-
struct that, if defendant had no interest in the sale and in
296 TITLE II— SEC. 32 OF ACT
good faith acted as the mere agent of the purchaser, he was
not guilty; that being his theory of defense.
Ellis v. State, 133 Ark. 540, 202 S. W. 702.
See also, Cowley v. State, 72 Tex. Cr. App. 173, 161 S.
W. 471.
Scott v. State, 70 Tex. Cr. App. 57, 153 S. W. 871.
Chance v. State (Tex. Cr. App.), 210 S. W. 208, 209.
Confined to Points in Issue. — In a prosecution for in-
troducing liquor into the state, a charge that under the law,
if the evidence warrants it, the jury may find defendant
guilty, for any person who introduces into the state any
ardent spirits, etc., shall be guilty of a misdemeanor, is
not objectionable as requiring the jury to convict even if
the liquor was introduced for a lawful purpose, where no
issue as to the purpose of introducing the liquor was raised
at the trial.
Reynolds v. State, 18 Ariz. 388, 161 Pac. 885.
In prosecution for illegal sale of liquor, charge that if
defendant knew or had reason to know that his employees
were selling liquor he is liable, is erroneous, as attempting
to base defendant's liability upon the law of negligence, and
not upon criminal intent.
State v. Waxman (N. J. Sup.), 107 Atl. 150.
Where evidence in a prosecution for unlawfully having,
controlling, and possessing liquors showed finding of such
liquors in defendant's residence, and defense was that de-
fendant was not at his residency when liquors were found,
or since they were stored, failure to charge on defense of
alibi was not error.
Hendrix v. State (Ga. App.), 100 S. E. 55.
Instruction as to Point on Which Evidence Undis-
puted.— In a prosecution for manufacturing spirituous or
fermented liquors in violation of statute, it was not nec-
essary to instruct that the liquor must have been made after
January 1, 1916, when the act took effect, where the undis-
puted evidence showed that to be the case.
Lowery v. State, 135 Ark. 159, 203 S. W. 838.
TITLE II— SEC. 32 OF ACT 297
Instruction Going beyond Indictment.— In a prosecu-
tion for illicit distilling, the gravamen of the offense being
the unauthorized distillation of alcoholic spirits, an instruc-
tion authorizing conviction if accused distilled rum, brandy,
or whisky was not erroneous, though the indictment charged
only distillation of whisky, for the specification might be
disregarded as surplusage.
Bullard v. United States, 158 C. C. A. 177, 245 Fed.
837.
A requested instruction, telling the jury that defendant
was not charged with keeping or delivering intoxicating
liquors and should not be convicted of such offense, was
properly refused where counts charging such offense had
been voluntarily dismissed by the state.
State v. Yocum (Mo. App.), 205 S. W. 232.
In the trial of an indictment charging solely the sale of
intoxicating liquor, it was error to charge the jury, in sub-
stance, that, if they believed the accused had intoxicating
liquor at his place of business or at a public place, that was
a circumstance from which the jury might infer guilt, un-
less they believed from the evidence that the whisky was
not the property of the accused.
Holmes v. State, 12 Ga. App. 359, 77 S. E. 187.
In a prosecution for violation of the Bone-Dry Law by
inducing a common carrier to transport liquors without re-
vealing the nature and contents of the package, the court in
its charge, improperly referred to sections of the statute
other than those on which the prosecution was based and
told the jury what acts on defendant's part would be suffi-
cient to violate them.
Robertson v. State, 130 Ark. 158, 197 S. W. 31.
Instruction Giving Prominence to Particular Evi-
dence.— In prosecution for misbranding shipment of
whisky as for "medical purposes," the state could not have
an instruction to convict if the jury believed from the evi-
dence that the indorsement was false and placed thereon
298 TITLE II— SEC. 32 OF ACT
without directions from the purchaser; it being improper
to give special prominence to particular evidence.
Commonwealth v. Robinson-Pettet Co., 181 Ky. 702,
205 S. W. 774.
But where state offered evidence of other shipments, in
the same year, the court properly based its instruction upon
all the evidence.
Commonwealth v. Robinson-Pettet Co., 181 Ky. 702,
205 S. W. 774.
In prosecution for possessing intoxicating liquor, where
testimony disclosed it was found in a barn, over which two
had equal possession and control, and nothing more was
shown than joint occupancy and control, and defendant was
away from home at time of seizure, and denied ownership
or knowledge of its presence, a charge on circumstantial
evidence and possession and control over the barn, not al-
luding to joint occupancy and control, was error, as one
may have control with another and yet not know of hidden
liquors stored in a house.
McGee v. State (Ga. App.), 100 S. E. 733.
In a prosecution for violation of local option law, an in-
struction necessarily referring to evidence of sales to em-
ployees where the price was deducted from their wages,
which made the instruction pertinent, is not objectionable
as unduly directing attention to that evidence.
People v. Silver, 286 111. 4%, 122 N. E. 115.
Must Not Be Argumentative. — In a trial for violating
the prohibitory law, an instruction that, in determining the
weight to be given the testimony of certain witnesses, the
jury could consider that they were deputy sheriffs, and that
the sheriff derives his compensation from fees, was prop-
erly refused, as being argumentative.
Sapp v. State, 2 Ala. App. 190, 56 So. 45.
Verbal Inaccuracies. — In prosecution for violation of
prohibition laws, an instruction was not objectionable be-
cause it contained the term "liquor," instead of "prohibited
TITLE II— SEC. 32 OF ACT 299
liquor" or "intoxicating liquor," where the only liquors
referred to in the evidence were of that class.
Stout v. State, 15 Ala. App. 206, 72 So. 762.
Where having, controlling, and possessing liquors de-
pended wholly on circumstantial evidence, failure to charge
precise language of the statute was not error, where court
stated to jury the only possible hypothesis from evidence or
defendant's statement consistent with innocence, and said
that if found true he should be acquitted.
Hendrix v. State (Ga. App.), 100 S. S. 55.
Where the one half pint of whisky found in defendant's
residence was put in evidence and taken by jury, an inad-
vertent charge that he had two half pints in his residence,
which had been put in evidence, did not require a new trial,
as guilt did not depend upon quantity in his possession.
Barbour v. State (Ga. App.), 99 S. E. 782.
Instructions to Be Construed as a Whole. — "The in-
struction to the jury that they should 'look to the evidence
to see whether that liquor was kept on hand by this defend-
ant, kept there by himself or through and in connection
with other persons,' was not error upon the ground that
the court failed to instruct the jury that the keeping of the
liquor was not a violation of the law, unless it was kept on
hand at the defendant's place of business. The charge of
the court is to be construed as a whole, and, so construing
it, the jury must have understood from it that, in order to
convict the accused, the evidence must show that the liquor
was kept on hand at his place of business."
Brooks v. State, 19 Ga. App. 45, 90 S. E. 971.
In a prosecution for introducing intoxicating liquors
from without into that part of the state of Oklahoma for-
merly the Indian Territory, where defendant, who, with
companions, mortored into the state, claimed that liquor
which he placed in the car was consumed before the state
line was reached, and that the liquor found was placed in
the machine by others, a charge that only that found in the
state of Oklahoma should be considered could not, in view
300 TITLE II— SEC. 32 OF ACT
of the other charges, be deemed to have taken the defense
from the jury.
Dosset v. United States, 161 C. C. A. 20, 248 Fed. 902.
Cumulative Instructions Unnecessary. — Where the
court instructed that, if the defendants purchased liquor
prior to November 1, 1916, and had it for their own use,
and not for sale, and did not sell it, they should be ac-
quitted, it was not error to refuse the requested instruc-
tion that, if defendants had the liquor prior to such date,
their possession thereof created no presumption against
them.
Pine v. Commonwealth, 121 Va. 812, 93 S. E. 652.
The court having charged the jury that they must be
satisfied beyond a reasonable doubt that the liquor found
in the defendant's place of business was intoxicating liq-
uor, it was not error to fail to give in totidem verbis an in-
struction to the effect that, if the liquors found were mere
imitations of intoxicating liquors, the defendant should
be acquitted.
Mundy v. State, 9 Ga. App. 835, 72 S. E. 300.
Necessity for Request. — In a prosecution for violat-
ing the local option law, where the evidence required an
instruction submitting the question of the agency of de-
fendant's son in making sale, no request for such instruc-
tion was necessary.
Huddleston v. Commonwealth, 171 Ky. 261, 188 S. W.
366.
Necessity for Timely Written Request. — Where hav-
ing, controlling, and possessing liquors depended wholly on
circumstantial evidence, failure to charge precise statutory
language was not error, without a timely written request.
Hendrix v. State (Ga. App.), 100 S. E. 55.
And in a prosecution for illegal possession of liquor, the
court did not err, in absence of timely appropriate written
request in failing to instruct on the law of alibi.
Barbour v. State (Ga. App.), 99 S. E. 782.
TITLE II— SEC. 32 OF ACT 301
Opinion on Weight of the Evidence.— In a prosecu-
tion for manufacturing liquor in violation of law, defend-
ant's plea of not guilty denying the truth of all evidence
tending to show guilt, the court's charge that defendant
himself said he was at the still where he was arrested to
haul beer off to assist somebody who had put the beer there,
and that he got into bad luck, was erroneous as an opinion
on the weight of the evidence, defendant not having testi-
fied in his own behalf, and the court manifestly referring to
what the state's witnesses had testified defendant told them
at the time of his arrest, which was a question of fact for
the jury, depending on the credibility of the state's wit-
nesses.
State v. Homer, 174 N. C. 788, 94 S. E. 291.
In a prosecution for keeping intoxicating liquor for sale,
a charge that the statute making the keeping of liquors in a
building not used exclusively as a private residence printa
facie evidence that they were kept for sale, means that, if
the evidence disclosed such fact, it is sufficient on its face
to warrant a conviction, is not a charge on the effect of evi-
dence prohibited by statute, since it does not tell the jury
that any fact has been proved or that the evidence does not
establish certain facts in dispute.
Dunn v. State, 8 Ala. App. 410, 62 So. 996.
"In a prosecution for violating the liquor law, where wit-
ness testified that his best recollection was that he got
whisky at the place in question and that he had bought it
from defendant and two others, there is no merit in an ex-
ception to a charge as to the weight to be given to direct and
circumstantial evidence; the jury being fully and correctly
instructed on reasonable doubt and circumstantial evi-
dence."
Brooks v. State, 19 Ga. App. 3, 90 S. E. 989.
Modifying Erroneous Instruction. — In a prosecution
for manufacturing alcoholic liquors, the court may modify
defendant's misleading instruction as to evidence of pos-
session of malt grain or other materials out of which al-
coholic liquors could be manufactured.
Patterson v. State (Ark.), 215 S. W. 629.
302 TITLE II— SEC. 32 OF ACT
As to Weight of Detective's Evidence. — In a pros-
ecution for the unlawful sale of intoxicating liquors, where
it appeared that a police officer, learning that a certain per-
son had bought from the defendant, swore out a warrant,
and to corroborate such person sent him with marked
money to purchase more liquor from the defendant, in or-
der to conclusively establish the offense, his credibility was
for the jury, and an instruction that the evidence of a de-
tective, or one acting as such should be considered with
more than ordinary caution was properly refused.
Robinson v. Commonwealth, 118 Va. 785, 87 S. E. 553.
In a prosecution for the illegal sale of intoxicants, a
charge that if the witness to the sale was impelled by any
desire to catch accused in an unlawful act, his testimony
might be weighed in view of that fact, sufficiently covered
a requested charge that the testimony of a detective, who
testified to the purchase, should be scrutinized with unusual
caution.
State v. Wainscott, 169 N. C. 379, 85 S. E. 380.
"The court rightly refused to single out the testimony of
the detectives and instruct that the same should be closely
scrutinized."
State v. Meyers, 132 Minn. 4, 155 N. W. 766.
In prosecution for illegal sale of intoxicating liquors,
where the only evidence of sale was that of three detec-
tives, instruction that the fact that they were detectives
and bought liquor for the purpose of securing evidence
could be considered in weighing their testimony, was all
that accused was entitled to.
Baumgartner v. State (Ariz.), 178 Pac. 30.
As Expressing Opinion on Facts. — "An instruction
that if, when liquor was found, the business was still car-
ried on at the place, though to a more limited extent, or
more privately than before, and liquor was kept there, it
would be in his place of business however limited, was not
objectionable as expressing an opinion in regard to the
facts."
Brooks v. State, 19 Ga. App. 3, 90 S. E. 989.
TITLE II— SEC. 32 OF ACT 303
"An instruction that for one to keep liquor in his par-
ticular place of business in a building, if he has more than
one, would be within the statute forbidding keeping on hand
intoxicating liquor; that it is not necessary for the liquor
to be kept in any particular room or in the place where the
main business is carried on or in a public place, but it
might be kept secretly, or in another room, or on a differ-
ent floor, or in a different building, if kept convenient to
the place of business, so as to be available, is not objec-
tionable as an intimation of opinion as to the guilt of the
accused or as assuming that he kept on hand liquor con-
trary to the statute."
Brooks v. State, 19 Ga. App. 3, 90 S. E. 989.
Where one is charged with the offense of making alco-
holic liquors in violation of law, and the evidence shows
that a substance commonly called "beer," made out of corn-
meal and water, was found in an outhouse in the posses-
sion of defendant and on the premises where he lived, it
is not error for the court to charge the jury that they would
be authorized in presuming that defendant was in posses-
sion of the "beer," and that he owned and made it. This
charge instructed the jury that they were only authorized
to conclude that the defendant made the substance in ques-
tion, and did not instruct the jury that they were obliged,
as a matter of law, to conclude that he made such sub-
stance. This charge is not subject to the objection that it
contained an expression of opinion as to what had been
proved in the case.
Williams v. State (Ga. App.), 99 S. E. 711.
As Assumption of Fact. — "An instruction that by
'place of business' is meant a public place of business in the
sense of a place to which the public is invited where busi-
ness is carried on, and it makes no difference whether the
amount of business be great or small, does not assume that
whisky was sold at the defendant's place of business."
Brooks v. State, 19 Ga. App. 3, 90 S. E. 989.
As to Purpose for Which Evidence Considered.— An
instruction in a prosecution for the illicit sale of whisky,
that evidence of defendant's having previously sold and
304 TITLE II— SEC. 32 OF ACT
drunk in places managed by him, was for the purpose of
corroborating the contention of the state that he is a liquor
dealer and had liquor in his possession, and is to be con-
sidered for that purpose only, but not to prove that he sold
it to the prosecuting witness in this case, is not erroneous,
since the effect allowed to such evidence was properly
stated.
State v. Boynton, 155 N. C. 456, 71 S. E. 341.
As to Disregarding False Evidence. — Where there
was only one witness for the state in a prosecution for the
sale of liquor, a requested charge that the jury might disre-
gard his entire testimony if they believed he knowingly tes-
tified falsely, should have been given.
Harrison v. State, 12 Ala. App. 284, 68 So. 532.
Where the only witness testifying as to an unlawful sale
of liquor stated that it was his best judgment that the sale
was within 12 months before the finding of the indictment,
but made other conflicting statements in reference thereto,
the court should have given an instruction that, if the jury
believe the memory of the witness so defective as to be un-
reliable, they could disregard his testimony and acquit.
Harrison v. State, 12 Ala. App. 284, 68 So. 532.
Sufficiency and Propriety of Particular Instructions.
Affirmative Charge for Defendant. — Where, in a
prosecution for violating the prohibition law, there was evi-
dence that defendant, at his house, within 12 months be-
fore being indicted, sold liquor to the state's witness and
received pay therefor, and that he had a store connected
with his house, an affirmative charge requested by defend-
ant was properly refused.
Moore v. State, 12 Ala. App. 243, 67 So. 789.
As to Proof of Intent. — In a prosecution for selling
cider in violation of the statute, the court's charge, after
having previously quoted the statute and explained that the
selling of cider was prohibited only when kept and deposited
with intent to sell for tippling purposes or as a beverage,
that he had told the jury on the last point — the intent of
the party — that they must find under the circumstances that
TITLE II— SEC. 32 OF ACT 305
the cider was kept with the design to be sold as a beverage,
was sufficient as to the necessity of the government's prov-
ing that defendant kept the cider with intent to sell same
for tippling purposes or as a beverage.
State v. Mathews, 115 Me. 84, 97 Atl. 824.
As to Name of Liquor Being Immaterial.— "An in-
struction that it made no difference by what name the liq-
uor was called so long as it was intoxicating, was clearly
proper."
State v. Radke, 139 Minn. 276, 166 N. W. 346.
Instruction as to Liability for Others' Acts.— In a
prosecution for illicit distilling, an instruction that, if de-
fendant allowed the use of his land for the still under
agreement giving him control thereof or an interest there-
in, he was equally responsible with the party in control and
operation, was not open to objection, as the charge war-
ranted proof that defendant was engaged with others in
illicit distilling.
Bullard v. United States, 158 C. C. A. 177, 245 Fed
837.
Where the testimony in a prosecution for violating the
local option law, raised the question of agency, and that
question was not covered by the charge, it was error to re-
fuse a requested instruction thereon.
Shepherd v. State, 76 Tex. Cr. App. 307, 174 S. W.
609.
Ellis v. State, 133 Ark. 540, 202 S. W. 702.
Chance v. State (Tex. Cr. App.), 210 S. W. 208.
In a prosecution for pursuing the business of selling in-
toxicating liquors in local option territory, where there was
evidence that defendant was the agent of a certain party,
one of the alleged purchasers, and that he bought whisky
for that party from another party, and did not himself sell
it to such party, the refusal of defendant's requested in-
struction that, if the sale was not made by himself to such
purchaser, but that he bought from another party as the
agent of such purchaser, and delivered the whisky under
— >20
306 TITLE II— SEC. 32 OF ACT
such circumstances, it would not be considered as evidence
of his guilt, was error.
Amonett v. State (Tex. Cr. App.), 204 S. W. 438.
Where the evidence on the part of the state will support
either the inference that the unlawful sale was entirely con-
summated by the appellant, or by him and another, it was
not improper for the court to instruct the jury as follows :
You are instructed that under the laws of Oklahoma any
person who in any way knowingly takes part in the sale of
intoxicating liquor illegally, whether the act is completed
by himself alone, or in conjunction with another, is guilty
of violating the law the same as if he had completed the
whole illegal act himself.
Womack v. State, 130 Okla. Cr. App. 323, 164 Pac.
477.
In a prosecution for selling intoxicating liquors in pro-
hibition territory, a charge that the ownership of the liq-
uor was immaterial, if defendant was exercising control,
etc., held correct, and applicable to the case.
Bird v. State (Tex. Cr. App.), 206 S. W. 844.
For Act of Carrier. — "The court below did not err
in instructing the jury, in substance, that if the defend-
ant concealed the nature of the contents of the trunk from
the railroad authorities, and they were unaware of the na-
ture of the contents of the trunk, and under those circum-
stances the railroad company transported it for the defend-
ant, their act in thus transporting the trunk would be the
act of the defendant."
Hendry v. State, 147 Ga. 260, 93 S. E. 413, 414.
As to Liability of Employee in Store. — In prosecu-
tion for having unlawful possession of intoxicating liquors
at a drug store, requested instruction that to convict, ac-
cused must be found to have been in charge of and not an
employee of a store was improper; the charge being pos-
session of liquors and not keeping the store.
State v. Billingsley, 99 Wash. 445, 169 Pac. 845.
Under a statute providing that an indictment is sufficient
if it charges that accused sold, offered for sale, kept for
TITLE II— SEC. 32 OF ACT 307
sale, or otherwise disposed of, liquors contrary to law and
that on the trial, any act of selling in violation of law em-
braced in the charge may 'be proved and a charge in the
form specified shall be held to include any device or sub-
stitute for any of said liquors, where a sale was made by
an employee of accused in accused's store, it was not nec-
essary to show actual participation by accused in the sale;
and an instruction that such participation was required was
properly denied.
Rosenberg v. State, 5 Ala. App. 196, 59 So. 366.
As to Sale by Employee— Respondeat Superior. — In
a prosecution for illegally selling intoxicants, the court
properly charged that defendant was guilty, if the sale was
actually made by his employee, even if without his consent.
State v. Wilbur (Ore.), 166 Pac. 51.
Instruction as to Proof of Character of Liquor Sold.
— An instruction "that it is not necessary that any witness
testify positively as to the particular name of the liquor.
It is sufficient, if you are satisfied from all the facts and
circumstances in evidence that the liquor so sold, if any,
was intoxicating liquor of the kind generally known as
whisky. The name or lack of name given to such liquor is
not material, if the kind and character of such liquor is
shown by the evidence to be as alleged in the information,"
was correct.
Nixon v. State, 92 Neb. 115, 138 N. W. 136, 137.
Where it was insisted that the liquor was not alcoholic
or intoxicating, and that, if it did in fact at any time become
alcoholic, this chemical change resulted from an exposure of
the liquor to the action of the air. after it was taken from his
possession, an instruction given by the court took care of this
question of fact by charging the jury as follows: 'The
court further charges you that you must find that the liq-
uor contained alcohol at the time it was received from the
possession of the defendant. Unless you so find 'beyond a
reasonable doubt you should return a verdict in his favor
and acquit."
Gramlich v. State, 135 Ark. 243, 204 S. W. 848.
308 TITLE II— SEC. 32 OF ACT
The following instruction was not erroneous: "I charge
you gentlemen of the jury that rye whisky and gin whisky
is as a matter of law alcoholic and intoxicating liquor."
Mundy v. State, 9 Ga. App. 835, 72 S. E. 300.
As to Previous Conviction. — In prosecution for know-
ingly, willfully, and unlawfully permitting intoxicating liq-
uors to be kept on certain premises occupied by defendant
court properly instructed jury to find whether defendant
had been previously convicted.
State v. Dereiko (Wash.), 182 Pac. 597.
As to Liability of Wife for Acts in Husband's Pres-
ence.— On the trial of a husband and wife for selling in-
toxicating liquor, an instruction, that if the wife made the
sale in the presence of the husband and under circum-
stances that she was acting under his coercion and with
his consent and approval she should be acquitted, was prop-
erly refused.
State v. Seahorn. 166 N. C. 373, 81 S. E. 687.
On trial of a husband and wife for selling intoxicating
liquor, instructions that if the wife got the liquor and de-
livered it in the hearing and with the approval of the
husband, the jury could find him guilty, that if she was
acting as his agent or co-operating with him in making a
sale he would be just as guilty as she was, that ordinarily
what the wife did in presence of the husband was presumed
to be done with his consent, but that it must appear that it
was with his consent, that the court would not charge
as requested, that if she made sales under circumstances
that she was acting under his coercion and with his con-
sent she should be acquitted, because she testified as to the
circumstances; that it was for the jury to pass upon her
guilt or innocence, that if they found that she was acting
voluntarily, assisting her husband willfully, they should find
her guilty, ibut that if she was acting under the constraint
of her husband it was not her own voluntary act, they
should acquit the wife, gave her the benefit of the presump-
tion that she was acting under the compulsion of the hus-
band, assuming that she was entitled to such presump-
tion.
State v. Seahorn, 166 N. C. 373, 81 S. E. 687.
TITLE II— SEC. 32 OF ACT 309
As to Admissibility of Evidence Regardless of How
Acquired. — In a prosecution for the unlawful possession
of intoxicating liquor, a charge that method in which evi-
dence was acquired, was not a matter for the jury and that
evidence was admissible regardless of how it was acquired,
was not erroneous, particularly when court charged that
credibility of a witness is exclusively for the jury.
Barbour v. State (Ga. App.), 99 S. E. 782.
As to Admission of Evidence of Other Sales. — In a
prosecution for sale of intoxicating liquors by an employee
of the defendant, an instruction was requested that evi-
dence had been admitted of sales other than the one charged,
and verdict should not be rendered against defendant or
either of them by reason of such other sales, and that the
material sale is that alleged to have been made on a certain
date. The court gave this instruction, adding thereto:
"Evidence of other sales was admitted for the purpose
merely of aiding in determining whether or not there \vas
a sale on the date alleged." Held, that the instruction as
requested and as modified was too general as a definition
of the purpose of admitting evidence of other sales.
Elliott v. State, 19 Ariz. 1, 164 Pac. 1179.
Evidence of Two Sales— Instruction Requiring
Unanimity as to the Sale Proved. — Where, in a prose-
cution for violating the local option law, the state made out
prima facie two cases, one a sale of liquor to C., and the
other a sale to R., and the defendant made out a case con-
tradicting both, it was error to instruct the jury to convict
defendant if they believed from the evidence that he "sold
C. or R." intoxicating liquors, as under it there need be no
unanimity of the jury as to which sale was made.
State v. Geist (Mo. App.), 195 S. W. 1050.
As to Participation or Interest in Sale. — The re-
quested instruction, that the jury must be satisfied that de-
fendant sold the liquor, or was directly or indirectly inter-
ested in the sale, was properly refused ; it being misleading
in that it required the jury to find that defendant had a
pecuniary interest in the sale.
Condit v. State, 130 Ark. 341, 197 S. W. 579.
310 TITLE II— SEC. 32 OF ACT
In a prosecution for violating the prohibition law by the
sale of Jamaica ginger, it was not error to refuse an in-
struction that the people must prove beyond a reasonable
doubt that a sale was made of intoxicating liquor either by
defendant personally or 'by his agent under his instructions
with his full knowledge and consent, in view of Laws 1915,
p. 285, § 22, providing that any person whose employee or
agent shall violate any of the provisions of the act shall be
deemed guilty of a misdemeanor; it being conceded that
defendant made sales himself and authorized his clerk to
sell the liquor.
McLean v. People (Colo.), 180 Pac. 676.
In a prosecution for selling intoxicating liquors, instruc-
tion that if accused procured liquor from some one un-
known to the buyer he became the seller's agent and was
guilty, etc., held proper.
Wilson v. State, 130 Ark. 204, 1% S. W. 921.
In a prosecution for selling intoxicating liquors, re-
quested instruction that accused was not guilty if he acted
as intermediary between the seller and buyer and had no
interest in the sale, etc., held properly refused as mislead-
ing and improper in form.
Wilson v. State, 130 Ark. 204, 196 S. W. 921.
In a prosecution for selling intoxicating liquor, refusing
a requested instruction to acquit if accused merely procured
the liquor as an accommodation to the buyer and had no
interest in the sale or connection with the seller, held re-
versible error, where there was evidence tending to estab-
lish such facts.
Kemp v. State, 130 Ark. 175, 196 S. W. 918.
As to Insanity. — Testimony by accused that he was
drunk and did not know that he made the alleged sale of
whisky is not sufficient to require the giving of a requested
charge on insanity from the recent use of intoxicating liq-
uor.
Johnson v. State, 81 Tex. Cr. App. 71, 193 S. W. 674.
As to Intent. — No error was committed in refusing to
instruct that if the liquor was furnished in a spirit of hos-
TITLE II— SEC. 32 OF ACT 311
pitality, with no intent to violate the law, there was no crime,
for defendant denied that he furnished the pint of beer, for
the illegal sale of which he was tried, either in the spirit of
hospitality or for any other purpose.
State v. Meyers, 132 Minn. 4, 155 N. W. 766.
As to Accomplice Testimony.— It was proper to refuse
to instruct on the law of accomplice testimony as applied
to a witness, whom the evidence showed was unconnected
with the alleged sale of intoxicating liquors except that he
was a purchaser of it.
Fisher v. State, 81 Tex. Cr. App. 568, 197 S. W. 189.
In a prosecution for the illegal sale of intoxicating liq-
uors, in view of testimony of the state's witness warranting
finding that he acted as agent for defendant in selling the
liquor he testified he purchased from defendant, the court
should have given defendant's requested instruction that the
witness was an accomplice.
Malone i\ State (Ark.), 214 S. W. 36.
As to Presumption from Possession. — Where, in a
prosecution for violating the prohibition law, there was evi-
dence that the prohibited liquor was kept in a store or shop,
the court properly instructed, in accordance with a statute
that proof beyond a reasonable doubt and to a moral cer-
tainty that defendant had the prohibited liquor on his prem-
ises, and that such premises were not used exclusively as a
dwelling, would be prima facie evidence that he kept the
liquor for sale, or with intent to sell the same contrary to
law.
Thomas v. State, 12 Ala. App. 293, 68 So. 549.
In a prosecution for violation of the prohibition law, an
instruction that, if the defendants had in their possession
at any time within the time laid in the indictment certain
quantities of liquor, this would be prima facie evidence that
they had it for sale, though acquired prior to November 1,
1916, was free from objection.
Pine v. Commonwealth, 121 Va. 812, 93 S. E. 652, 653.
Where the court instructed that, notwithstanding posses-
sion of more than one gallon of liquor is prima facie evi-
312 TITLE II— SEC. 32 OF ACT
dence of guilt, if the liquor was purchased before Novem-
ber 1, 1916, and stored iby defendants for their own use,
they should be acquitted, it was not error to refuse the in-
struction that, if the liquor was so purchased and stored,
the prima facie evidence of possession is overcome, and the
state must prove by clear, distinct, and reliable evidence the
illegal purpose.
Pine v. Commonwealth, 121 Va. 812, 93 S. E. 652, 654.
An instruction on prosecution of a druggist for maintain-
ing a liquor nuisance, permitting the presumption that in-
toxicating liquor found on the premises was kept for illegal
sale, to be used as evidence, considered with all other in-
structions given, held not open to complaint.
State v. Snyder (la.), 171 N. W. 8.
As to Giving Away Liquor. — It was proper to give an
instruction to the jury concerning giving away intoxicating
liquor, as a shift or device for the purpose of evading the
provision of the prohibitory liquor law. A person can com-
mit an offense against that law by shift or device, and it
does not make any difference whether it is the first offense
or the last, nor whether the offender has been prosecuted and
convicted before or not. He can make a sale of intoxicat-
ing liquor through some shift or device in committing a
misdemeanor, or in committing a felony. A felony does
not consist in the manner in which the offense is com-
mitted, but in the commission of the offense after having
been convicted.
State v. Compton, 94 Kan. 642, 146 Pac. 1161.
In a prosecution for alleged illegal sale of liquors, where
all the testimony concerned a sale, an instruction that the
defendants were guilty if they gave away the liquors,
though it might have been erroneous had the evidence con-
cerned a giving away, was not misleading.
Pine v. Commonwealth, 121 Va. 812, 93 S. E. 652, 653.
As to Time Covered. — Where a search warrant charged
the keeping of intoxicating liquors for unlawful sale on a
certain date, an instruction authorizing conviction if defend-
ant had such liquor for purposes of sale within 12 months
TITLE II— SEC. 32 OF ACT 313
before the warrant was issued, is not erroneous, where, un-
der the statute, it is not necessary to state the time of the
commission of the offense accurately, unless time is a ma-
terial ingredient of the offense.
Frey v. Commonwealth, 169 Ky. 528, 184 S. W. 896.
As to Number of Sales.— In prosecution for pursuing
business of selling intoxicants in local option territory, an
instruction that if defendant did not engage in the business
of selling as alleged in the indictment and did not make two
sales of intoxicants within three years next before the date
mentioned in the indictment, or if from the testimony there
is a reasonable doubt that he made two sales within said
time, the finding should be not guilty, was erroneous, in that
it put the burden of proof on defendant and applied the
principle of reasonable doubt only to the issue of two sales
and not to the issue whether defendant was engaged in the
'business of selling. (Per Gaines Special Judge).
Alexander v. State (Tex. Cr. App.), 204 S. W. 644,
645.
The court's refusal to instruct that two sales of intoxi-
cating liquors to the person mentioned in indictment for
pursuing the business of selling intoxicating liquors must
be proved is reversible error, where the indictment con-
tained a general allegation of sales to unknown parties,
since the jury might conclude that, although only sale to the
party named was proved, a sale to an unknown party would
justify conviction.
Fisher v. State, 81 Tex. Cr. App. 568, 197 S. W. 189.
As to Liability of Carrier. — As the carrier is not lia-
ble unless the statement that the liquor was intended for
personal and family use was false, the carrier cannot be
convicted, though its agent believed the statement was false,
and an instruction so declaring was improper; the carrier
being liable only if the statement was false and it knew or
was charged with knowledge of facts which would have
informed a reasonably prudent person that the statement
the liquor was intended for personal and family use was
false.
Adams Exp. Co. v. Commonwealth, 174 Ky. 296, 192
S. W. 56.
314 TITLE II— SEC. 32 OF ACT
Instruction to Disregard Count. — Where indictment
charged illegal sale of liquor in two counts, both covering
same offense and only difference being that one was more
specific than other in that it contained the unnecessary aver-
ment of the name of the person to whom the liquor was
sold, court's refusal to instruct jury not to consider the
more general count was not error.
Tomlin v. Commonwealth (Va.), 97 S. E. 305.
As to Reasonable Doubt. — Where there was evidence
that another who was out of the state and was not indicted
was the party that transported liquor, and not the accused,
it was error to refuse to instruct that, if there was reason-
able doubt as to which committed the act, "neither could
be convicted;" the latter clause not rendering the instruc-
tion bad from the fact that the other was not indicted and
was beyond the jurisdiction of the court.
Burton v. Commonwealth, 122 Va. 847, 94 S. E. 923.
As to Possession of Liquor for Another. — "The
court did not err in instructing the jury that, if there was
another person with the defendant, and that such person
carried a grip containing whisky belonging to the defend-
ant and was carrying it for the defendant and in his pres-
ence, such possession would in law be the possession of the
defendant, and the jury would be authorized to convict."
Duren v. State, 21 Ga. App. 524, 94 S. E. 902.
As to Burden of Proof. — Accused's requested instruc-
tion that the burden was on the commonwealth to prove
beyond all reasonable doubt that distilled liquor was con-
tained in the package delivered to him, was properly re-
fused ; the records of the express company and affidavits of
accused, kept as required by law, excluding every rational
hypothesis of accused's innocence.
Cochran v. Commonwealth, 122 Va. 801, 94 S. E. 329.
A charge that, where a man is chargeable with the sale
of intoxicating liquors, if the burden of proof has been
sustained by the state as later charged, he can justify him-
self only 'by showing that he made the sale in the manner
TITLE II— SEC. 32 OF ACT 315
authorized by law, is not objectionable as relieving the state
of the burden of proving the facts charged.
State v. Hampton, 106 S. C. 275, 91 S. E. 314.
It was not error to refuse special charge that the state
must prove that bottles introduced in evidence and labeled
Budweiser contained intoxicating liquor, where the sales
charged had been fully proved toy other evidence; the bot-
tles being introduced upon issue of character of business in
which defendant was engaged.
Head v. State (Tex. Cr. App.), 198 S. W. 581.
In a prosecution for maintaining a liquor nuisance, where
it appeared that certain liquor found under a search war-
rant, and in view of the statute under which the finding of
such liquor raises a presumption that it is kept for unlaw-
ful purposes, an instruction that the state must, prove de-
fendant's guilt beyond a reasonable doubt before a convic-
tion could foe justified, and that the statutory presumption
was subject to rebuttal, was as favorable as defendant was
entitled to ask.
State v. See, 177 la. 316, 158 N. W. 667.
Harmless Error. — Where one was convicted under the
prohibition law of unlawfully transporting whisky, he was
not prejudiced by an improper instruction concerning the
unlawful keeping or storing of whisky.
Carter v. Commonwealth, 123 Va. 810, 96 S. E. 766.
Where the evidence showed only illicit distillation of
whisky, an instruction authorizing conviction on proof of
distillation of rum, brandy, or whisky, was harmless though
the indictment specified only whisky.
Bullard v. United States, 158 C. C. A. 177, 245 Fed. 837.
An instruction authorizing the jury to convict the defend-
ant for the sale of intoxicants made at any time within 18
months prior to the filing of the information, when the law
under which the prosecution was maintained had been in
force only a little more than 6 months prior to that time,
was improper; but, as the only evidence given against the
defendant was of a sale made a little more than a month
316 TITLE II— SEC. 32 OF ACT
after the law was in force, the error was without prejudice
and immaterial.
Malick v. State (Neb.), 169 N. W. 5.
An indictment charging selling liquor in dry territory
to four persons named can be supported only by evidence
that the sale was made to all four. In a prosecution for
selling liquor in dry territory, an instruction that convic-
tion could be had upon proving sale to any one of the four
named in the indictment though error, was not ground for
reversal, where the evidence clearly proved sale to all four,
such error being harmless under a statutory provision.
Price v. State (Tex. Cr. App.), 202 S. W. 948.
In a prosecution for introducing liquor into the state, the
defendant could suffer no injury from the failure to instruct
as to the defense of lawful purpose of the introduction,
when the purpose he was shown to have admitted was un-
lawful.
Reynolds v. State, 18 Ariz. 388, 161 Pac. 885.
A charge that one convicted of the offense of manufac-
turing liquors is punishable by imprisonment in the peniten-
tiary for a period not less than one nor longer than four
years was inaccurate, in that it misstated the maximum pen-
alty, which is five years. The jury could have considered
the severity of the penalty prescribed, in determining
whether or not they should recommend that the offense be
punished as for a misdemeanor. But since the judge could
have disregarded such recommendation, and since he sen-
tenced the defendant to a term of only two years in the
penitentiary, this misstatement was harmless.
Williams v. State (Ga. App.), 99 S. E. 711.
Where the undisputed evidence showed that accused,
charged with having intoxicating liquors in his possession
for the purpose of sale, had at one time one gallon and three
pints of liquor at his home and one pint in his buggy while
on his way to his home, the error in a charge that the pos-
session of one gallon was evidence that accused had liquor
for sale, though the statute provides that the possession of
more than one gallon of liquor at one time, whether in one
TITLE II— SEC. 32 OF ACT 317
or more places, is prima facie evidence of guilt, was not
prejudicial to accused.
State v. Atwood, 166 N. C. 438, 81 S. E. 318.
v In prosecution for violation of the "blind tiger" law, re-
fusal to defendant of an instruction that, before the jury
could convict on circumstantial evidence alone, the circum-
stances must be so convincing as to be inconsistent with any
reasonable hypothesis of innocence, held not harmless to
defendant.
Robinson v. State (Ind.), 124 N. E. 489.
In view of fact that defendant, in trial for unlawful trans-
portation of liquors, had borne a reputation as a law-abiding
citizen and had held offices in county, it could not be as-
sumed that refusal of an affirmative instruction covering
the law applicable to his testimony, which, if true, would
entitle him to an acquittal, was not prejudicial.
Peyton v. State (Okla. Cr. App.), 183 Pac. 639.
In a prosecution for manufacturing alcoholic liquors and
permitting distilling apparatus to be on defendant's prem-
ises, error, if any, in instructing that if evidence showed dis-
tilling apparatus to be found on premises possessed and
controlled by defendant a prima facie case was made, held
harmless.
Neal v. State (Ga. App.), 100 S. E. 12.
Where the offense was committed on May 28, 1918, and
both the state and defendant so understood it, though the
evidence showed it was committed on May 28th, without
stating in what year, but that there was only one offense, a
charge that a verdict of guilty might be returned under the
prohibition act of 1917, if the jury believed accused to be
guilty of the offense charged within two years previous to
the indictment, was harmless.
Plair v. State (Ga. App.), 99 S. E. 61.
XI. Verdict.
Responsiveness of Verdict to Counts. — In an intoxi-
cating liquor prosecution, it is unnecessary that the verdict
or instructions specifically indicate on which of two counts
318 TITLE II— SEC. 32 OF ACT
the defendant was convicted, where one count was com-
pletely abandoned at the trial.
State v. Smith (Mo. App.), 201 S. W. 942.
Verdict of Conviction on Several Counts. — Under an
indictment charging in one count that accused sold spirit-
uous, vinous or malt liquors without a license, in another
that he manufactured, sold, offered for sale, kept, or had
in his possession for sale, etc., such liquors without license,
and in three other separate counts that he sold, offered for
sale, or otherwise disposed of such liquors, accused could
be convicted under more than one count if the evidence
justified it.
Loudermilk v. State, 4 Ala. App. 167, 58 So. 180.
A general verdict of guilty on an accusation containing
two counts, one charging accused with keeping, the other
with selling, intoxicating liquors, cannot be sustained, where
there is no evidence of guilt as to the charge contained in
the second count.
Dozier v. State, 14 Ga. App. 473, 81 S. E. 368.
Verdict of Conviction of Separate Sales. — Where
violations of law are not continuous in their nature separate
indictments may be maintained for each one; consequently
under indictments for selling intoxicating liquors one may
be convicted for. each separate sale.
State v. Freeman, 162 N. C. 594, 77 S. E. 780, 45 L.
R. A., N. S., 977n.
Verdict Varying from Charge against Accused.—
Where the affidavit or warrant for a violation of the pro-
hibition laws charged a different offense and embraced an
entirely different transaction from that of which defendant
was convicted, her conviction of an offense not charged or
included in the indictment, information or affidavit must be
set aside.
Doublin v. State, 15 Ala. App. 527, 74 So. 86.
On Uncertain Plea of Guilty. — Where one was brought
before a justice upon a warrant charging him with selling,
giving away, offering, exposing for sale, transporting, and
TITLE II— SEC. 32 OF ACT 319
aiding in procuring ardent spirits contrary to law, a state-
ment by him that he wanted to plead guilty to "the charge"
was too uncertain to alone support a conviction for trans-
porting liquor.
Collins v. Commonwealth, 123 Va. 815, 96 S. E. 826.
Verdict Construed as Not a Special Verdict. — \Yhen
on an accusation charging the defendant with a violation
of the law in several different ways, the verdict finds him
''guilty of transporting whisky," it is not a special verdict
stopping short of the facts requisite to a conviction, but is
a finding that the defendant violated the prohibition law
by transporting whisky.
Dunbar v. State, 21 Ga. App. 502, 94 S. E. 587.
Direction of Verdict. — Where the res gesta of the oc-
currence showed clearly that defendant had no knowledge
that intoxicating liquor was on his premises, and that he
had no control over it or title or interest in it, but that an-
other person had hidden the liquor on his premises, where
it was found by the officers, a verdict for defendant should
have been directed, although if the facts had not been fully
explained or the explanation had come after time for med-
itation and the concoction of an excuse, the case might have
been for the jury.
Oldacre v. State (Ala. App.), 75 So. 827.
Submission of Form of Verdict.— In a prosecution
against two defendants for illegally carrying around on their
persons and in a vehicle intoxicating liquors with intent to
sell and dispose of the same by gift or otherwise, it was not
error to submit four forms of verdict, one for conviction
and one for acquittal for each of the two defendants.
State v. Butler (la.), 173 N. W. 239.
XII. Arrest of Judgment.
For Failure to Show Offense within Statutory Pe-
riod.— The failure of the state to show that the offense of
unlawfully manufacturing spirituous liquors was com-
mitted within two years should be taken advantage of by
320 TITLE II— SEC. 32 OF ACT
accused by a requested instruction, and is not available in
arrest of judgment.
State v. Francis, 157 N. C. 612, 72 S. E. 1041.
For Failure to State Time of Commission of Offense
in Indictment. — Time is not of the essence of the offense
of unlawfully manufacturing spirituous liquor, and, under
a statute providing that no judgment shall be stayed for the
failure of the indictment to state the time of the commis-
sion of the offense an indictment need not state the time of
the commission of the offense to support it against a mo-
tion in arrest.
State v. Francis, 157 N. C. 612, 72 S. E. 1041.
Special Verdict Equivalent to General One No
Ground. — "The fact that upon a trial for the sale of in-
toxicating liquor the jury returned a verdict finding 'the de-
fendant, Paul Littlefield, guilty of aiding and assisting in
the sale of intoxicating liquor' did not render the conviction
illegal, and afforded no ground for arresting the judgment.
A general verdict of 'guilty' would have been the technically
correct form. Since, however, one who aids and assists in
selling intoxicating liquor may be found guilty as the prin-
cipal offender under an indictment or accusation charging
him with the sale, the verdict in the instant case is simply a
special verdict, equivalent to a general verdict of guilty, and
is valid, and the court did not err in overruling the motion
in arrest of judgment. See Duntoar v. State, 21 Ga. App.
502, 94 S. E. 587."
Littlefield v. State, 22 Ga. App. 783, 97 S. E. 259.
Duplicity in Information No Ground. — A judgment
after verdict for selling intoxicating liquors will not be ar-
rested because of duplicity in the information.
Ray v. State (Del.), 100 Atl. 472.
Defect in Original Search Warrant No Ground.—
The absence of initial jurisdiction by reason of the failure
of a search warrant to designate for search the premises
on which contraband and outlawed liquors were found and
seized, was cured by the actual seizure and presence of the
liquors before the court, and it was proper for the trial
TITLE II— SEC. 32 OF ACT 321
court to execute the sentence of the statute without regard
to the defect mentioned, although such defect would be
fatal to a proceeding against lawful property.
Hemmelweit v. State (Ala.), 75 So. 961.
Defective Indictment. — A conviction cannot be sus-
tained on an information which attempts to charge a viola-
tion of the prohibitory law by simply alleging that the ac-
cused did give away whisky in violation of law.
Findley v. State, 11 Okla. Cr. App. 275, 145 Pac. 1107.
Where Philip Goldberg was indicted under several counts
for unlawfully selling intoxicating liquors, the objection that
one count was against Philip Holdberg was properly raised
by motion in arrest of judgment.
People v. Goldberg, 287 111. 238, 122 N. E. 530.
"Where defendant in a prosecution for unlawfully selling
intoxicating liquors was found guilty under the name of
Philip Goldberg in 49 counts and also as Philip Holdberg
in 1 count, the entire judgment is erroneous and will be re-
versed.
People v. Goldberg, 287 111. 238, 122 N. E. 530.
XIII. New Trial.
A defendant, convicted of violating the Indiana "Blind
Tiger Law" and sentenced to a fine and imprisonment in
the county jail, should present the question as to the place
of imprisonment by a motion to modify the judgment, and
not by a motion for new trial.
Heier v. State (Ind.), 122 N. E. 578.
Sufficiency of Evidence. — "The defendant was con-
victed upon circumstantial evidence of the sale of intoxi-
cating liquors. No error of law is complained of, the evi-
dence excluded every reasonable hypothesis other than that
of the guilt of the accused, and the court did not err in
overruling the motion for a new trial."
Sangfield v. State, 18 Ga. App. 680, 90 S. E. 352.
Where one charged with the offense of selling intoxicat-
ing liquor makes the defense that he was acting merely as
—21
322 TITLE II— SEC. 32 OF ACT
agent for the purchaser, it devolves upon the jury trying
the case to determine his actual relation to the act charged;
and where the evidence is sufficient to sustain the verdict
rendered, the discretion of the trial judge in denying a mo-
tion for new trial, based entirely on the weakness of the
proof offered in behalf of the state, will not be interfered
with.
Smith v. State, 14 Ga. App. 577, 81 S. E. 801.
In a prosecution for the illicit manufacture of intoxicat-
ing liquors, a motion to dismiss as of nonsuit was properly
overruled; there being some evidence that defendant knew
of existence of the still and fired a gun in the air when he
saw an officer approaching the blockade distillery to give
warning to the distillers.
State v. Killian (N. C.), 101 S. E. 109.
Admission of Evidence. — In a prosecution for illegally
storing intoxicating liquor, where evidence had been given
that certain persons had been seen drinking beer on the
premises, a motion for a new trial was properly denied,
where it was not claimed that the persons so seen on the
premises were not in the county or within reach at the time
of the trial, nor that they would have denied the testimony
introduced.
People v. Calliari, 1% Mich. 475, 163 N. W. 154, 155.
Where evidence, in prosecution for the possession of in-
toxicating liquor, demanded a verdict of guilty, even if evi-
dence referred to in special ground of motion for new trial
was improperly admitted, its admission would not warrant
a new trial.
Autrey v. State (Ga. App.), 99 S. E. 389.
Affidavit for as Hearsay. — An affidavit on a motion for
new trial in a prosecution for violating the prohibition law,
made by defendant's attorney, that a juror was "heard to
say" that the bailiff seemed to know all about the intoxicat-
ing properties of Jamaica ginger after listening to his con-
versation on that subject, was inadmissible as hearsay.
McLean v. People (Colo.), 180 Pac. 676.
TITLE II— SEC. 32 OF ACT 323
Discharge of Accused. — When a judgment is reversed
and case remanded for new trial, the defendant is not en-
titled to be discharged.
State v. Smith, 89 N. J. L. 52, 97 Atl. 780.
XIV. Sentence and Punishment.
Double Punishment. — Where defendant was convicted
and sentenced to imprisonment in the county jail, he cannot
thereafter be sentenced on the same conviction to another
and different punishment, which would in effect be punish-
ing him twice for the same offense.
Blackman v. United States, 162 C. C. A. 519, 250 Fed.
449.
Excessive Punishment. — In a prosecution for unlaw-
fully keeping intoxicating liquors with intent to sell or give
away, a sentence of imprisonment in the county jail for 9
months and in addition to pay a fine of $200 and costs, in
default of payment of which in addition to such imprison-
ment defendant was to be imprisoned for a period not ex-
ceeding 60 days, to commence on the expiration of the 9
months' term, is excessive, and would be reduced to a fine
of $300 or 90 days, and the payment of costs.
State v. Butler (la.), 173 N. W. 239.
Law Applicable. — One violating the Zone Liquor Law
is not entitled to be punished under the later-passed State-
Wide Act, fixing a lighter punishment.
Ex parte Roya (Tex. Cr. App.), 215 S. W. 322.
Sentence. — \Vhere one verdict assessed a fine of $50
and 30 days' imprisonment, and another a fine of $500 and
6 months' imprisonment, without designating in either ver-
dict the name of either of two defendants jointly tried for
possession of intoxicating liquor, the court's maximum
sentence against either would be a fine of $50 and an im-
prisonment of 30 days.
Harris v. State (Okla. Cr. App.), 181 Pac. 944.
324 TITLE II— SEC. 32 OF ACT
XV. Appeal and Error.
Law Authorizing Appeal as Ex Post Facto Law.—
That an act authorizing an appeal by the state in proceed-
ings for condemnation of intoxicating liquors, became ef-
fective after the owner began keeping the liquors seized
in such a proceeding, does not make it ex post facto as to
such a proceeding; the statute relating only to procedure.
State v. Tygart (la.), 172 N. W. 299.
Exceptions and Objections. — Where it is sought to
differentiate the case of an employee from that of his em-
ployer, charged together, the points relied on must be
brought to the attention of the trial court, and exceptions
saved to its rulings, to insure review by the appellate court.
Turner v. United States (C. C. A.), 259 Fed. 103.
Assignments of Error. — An assignment of error in
overruling a defendant's objection to the question set out on
page 10 of the record there being on that page six ques-
tions, thereof which were objected to, all relating to the
shipment of whisky, its receipt and whether or not it was
delivered, is too general to warrant consideration.
Flowers v. Birmingham (Ala. App.), 83 So. 36.
Perfection of Appeal. — An appeal was sufficiently per-
fected, though a written notice of appeal was stamped as
filed by the justice on the same day, but before entry of
judgment upon the docket where the statute only requires
an oral notice of appeal, which fact must ibe entered by
the justice on his docket.
State v. Taggart (la.), 172 N. W. 299.
Question Not Raised Below. — Where a jury found
that cider sold by defendant was intoxicating, upon evi-
dence justifying such an inference, and the defendant did
not raise the question whether such a sale came within the
language of the statute the conviction must be affirmed.
State v. Clifford, 88 N. J. L. 458, 97 Atl. 57.
Variance in Charge of Offense. — Where prosecution
was begun by affidavit in county court, charging defendant
TITLE II— SEC. 32 of ACT 325
with manufacturing and defendant was convicted and ap-
pealed to the circuit court, in which court the solicitor filed
a complaint charging the same offense, defendant cannot
complain that the charge in the circuit court was a different
charge from the one in the county court.
Norred v. State (Ala. App.), 82 So. 559.
Verdict on Conflicting Evidence. — An appellate court
will not on review of a judgment of conviction, disturb a
verdict found by the jury on conflicting evidence as to
whether "Bevo" or "Temperance Malt" is capable of pro-
ducing intoxication as defined in said instruction.
State v. Henry, 74 W. Va. 72, 81 S. E. 569.
Where a defendant was convicted of possessing intox-
icating liquors in violation of law, and the evidence author-
ized conviction, no error of law ibeing complained of, the
Appellate Court is powerless to set the conviction aside.
Dalton v. State (Ga. App.), 100 S. E. 781.
Where evidence was sufficient to justify jury's finding
that defendant was in possession of whisky, and material
and equipment for making more, and trial court approved
verdict, conviction will be affirmed ; no error being shown.
Barksdale v. State (Ga. App.), 100 S. E. 771.
Where there was evidence, in a prosecution for posses-
sion of intoxicating liquors, sufficient to authorize the ver-
dict, and motion for a new trial on ground that verdict was
without evidence to support it was denied, the verdict must
stand.
Autrey v. State (Ga. App.), 99 S. E. 389.
Where evidence in prosecution for selling intoxicating
liquor presented a plain conflict, and testimony of state's
witnesses clearly supported conviction, and no brief was
filed by defendant appellant, and no appearance was made
to orally argue cause at submission, and an examination of
record discloses no error prejudicial to his substantial
rights, the conviction will be affirmed.
Braden v. State (Okla. Cr. App.), 181 Pac. 736.
326 TITLE II— SEC. 32 OF ACT
Sufficiency of Evidence to Support Verdict. — "When
the jury have solved the issues presented in the testimony
under a fair and proper charge of the court, and have found
that defendant is guilty of unlawfully making the sale al-
leged, and the verdict has been approved by the trial judge,
whose duty it is to set it aside if not satisfied that defend-
ant has been proven guilty as charged, and there is suffi-
cient evidence in the record, if believed, to sustain the ver-
dict, it will not be disturbed on the facts on appeal unless
clearly wrong."
Lee v. State (Tex. Cr. App.), 204 S. W. 110, 112.
In a prosecution for violation of the bootlegging statute,
the credibility of a witness against defendant and if his tes-
timony was for the jury; and, the finding having been
against defendant, the Supreme Court should not interfere,
even though sitting as a jury they might not have convicted.
State v. Alderman (la.), 174 N. W. 30.
Admission of Irrelevant Evidence — Discharge. —
Where an indictment charges illegal sale of liquors to a
person named and to others not named, and evidence as to
sales to the latter is improperly admitted, the judgment
must ibe reversed, and the record remitted for a new trial.
The defendant is not entitled to be discharged.
State v. Smith, 89 N. J. L. 52, 97 Atl. 780.
Where facts were proven establishing the legal presump-
tion of guilt arising from the keeping of liquors in a build-
ing not used exclusively for a dwelling, a conviction will
not be reversed, although a third person testified that the
liquor was his, and not the defendant's, and that he had
pleaded guilty and had paid a fine.
Maisel v. State (Ala. App.), 81 So. 348.
Harmless Error.
Refusal of Continuance. — In prosecution for selling
intoxicating liquor in dry territory, court's refusal to con-
tinue trial because of absence of witness was not reversible
error, where expected evidence all bearing on question of
the intent of accused would have been immaterial ; the un-
TITLE II— SEC. 32 OF ACT 327
disputed evidence being that the bottle accused sold con-
tained whisky.
People v. Allen (Cal. App.), 174 Pac. 374.
In Admission of Evidence. — While evidence of sales
of intoxicants subsequent to date alleged in indictment was
inadmissible, where the same witnesses testified to numer-
ous sales prior to such date, the evidence was not material
to the state, and its admission was without prejudice to de-
fendant. (Per Gaines Special Judge.)
Alexander v. State (Tex. Cr. App.), 204 S. W. 644,
645.
In prosecution for soliciting or receiving orders for liq-
uors, the sale of which was prohibited in the state, any er-
ror in overruling defendant's objection and motion to ex-
clude a witness' answer that "he told me he was," was with-
out injury, where question related to consignor's status at
time of trial, and not at time defendant's order for liquors
was made out to him.
Flowers v. Birmingham (Ala. App.), 83 So. 36.
A conviction for introducing intoxicating liquors into the
state ibased upon the admissions of accused and attendant
circumstances, the sole defense being that the liquor was
received inside the state, will not be reversed because the
jury was erroneously informed that other similar charges
were pending against accused and the liquor involved in
such cases was shown them.
Murray v. State, 19 Ariz. 49, 165 Pac. 315.
In Excluding Testimony. — In prosecution for second
violation of prohibitory liquor law, error in excluding de-
fendant's question to prosecuting witness, on cross-exami-
nation, as to whether he was not paid to secure evidence,
was harmless, where defendant's testimony so corroborated
that of witness as to make his interest immaterial.
Files v. State (Okla. Cr. App.), 182 Pac. 911.
In a prosecution for a second violation of the prohibitory
liquor laws, the refusal to permit defendant, on cross-ex-
amination of prosecuting witness, to ask if he was not paid
328 TITLE II— SEC. 32 OF ACT
to secure evidence in the case, intended to show witnesses'
interest, was error.
Files v. State (Okla. Cr. App.), 182 Pac. 911.
Error in Verdict as Harmless. — Where one was con-
victed of unlawful transportation and also sale of ardent
spirits, error of court in declining to set aside verdict as
to ''selling" ardent spirits because unsupported (by evidence
was harmless, where penalty imposed was the minimum
penalty for transporting spirits.
Collins v. Commonwealth, 123 Va. 815, 96 S. E. 826,
827.
Error Cured by Withdrawal from Jury. — "Even if
the testimony of the deputy sheriff touching the arrest of
the accused and the seizure of certain whisky, which the
witness understood was to be used in connection with an-
other case (not then on trial), was irrelevant, notwith-
standing it might tend to corroborate the testimony as to
the alleged sale under investigation, because the time when
the whisky was found in the defendant's possession was
not definitely shown, the error, if any, in admitting this
testimony, was sufficiently cured by its withdrawal by the
court from the jury."
Bishop v. State, 18 Ga. App. 714, 90 S. E. 369.
Wlhiere Fair Trial Not Had. — Where there is no doubt
that the conduct of the audience in the courtroom during
a prosecution for illegal transportation of liquor was so
irregular that the defendant did not obtain a fair and im-
partial trial, the appellate court will grant a new trial.
State v. Gens, 107 S. C. 448, 83 S. E. 139.
Refusal of Court to Comply with Request of Jury
to Have Certain Evidence Re-Read to Jury. — Defend-
ant accused of selling intoxicating liquor is not prejudiced
by the refusal of the court to re-read to the jury on their
request the testimony of a witness as to sales made by ac-
cused and for which he had been convicted.
State v. Hampton, 106 S. C. 275, 91 S. E. 314.
In instructions, see ante, this section.
TITLE II— SEC. 32 OF ACT 329
Correction of Error by Lower Court.— In a prosecu-
tion for having possession of intoxicating liquor with in-
tent to sell, where the trial court promptly corrected his
erroneous statement that the law presumed an intent or
purpose to sell from the bare fact of possession of more
than a quart and stated the correct rule, the error was suf-
ficiently retracted.
State v. Baldwin (N. C.), 100 S. E. 345.
Invited Error.— In a prosecution for selling intoxicat-
ing liquor, defendant could not complain of the refusal to
exclude evidence of other sales in his place of business,
near the time of the sale alleged, where the evidence was
elicited and invited on cross-examination by his counsel.
Bundy v. State (Okla. Cr. App.), 184 Pac. 795.
Abandonment.
Brief — Abandonment of Right to Raise by Demur-
rer.— A question sought to be made by demurrer but not
argued in the brief of plaintiff in error, will be treated as
abandoned.
Burgan v. State (Ga. App.), 99 S. E. 636.
After Plea of Guilty. — Where defendant entered a plea
of guilty to a charge of the unlawful manufacturing of in-
toxicating liquors, and was assessed the lowest penalty,
he is not in a position to urge as a ground for reversal the
insufficiency of the evidence to prove his guilt.
Coats v. State (Tex. Cr. App.), 215 S. W. 856.
Certiorari. — Where the evidence was sufficient to sup-
port the inference that a sale of whisky had been consum-
mated by delivery in exchange for an agreed purchase price
accepted by the defendant at the time, an appellate court
cannot hold that the judge of the superior court erred in
overruling a certiorari where error was assigned upon gen-
eral grounds only.
Stocks v. State, 19 Ga. App. 607, 91 S. E. 944.
See also, Barbour v. State (Ga. App.), 99 S. E. 782.
A judgment adjudicating a contempt for violation of a
liquor injunction is not reviewable de novo on certiorari,
330 TITLE II— SEC. 32 OF ACT
despite the concession of defendant, judge of the district
court which adjudicated the contempt, that it is so review-
able.
Bird v. Sears (la.), 173 N. W. 925.
Writ of Prohibition. — Where a lower court is proceed-
ing out of its jurisdiction in attempting to try indictments
against a carrier under a statute, and defendant, if con-
victed, would have no adequate remedy by appeal, and
would receive irreparable injury, a writ of prohibition to
prevent such trials must issue.
Adams Exp. Co. v. Young, 184 Ky. 49, 211 S. W. 407.
XVI. Costs and Expenses.
Where a claimant unsuccessfully defends a suit for for-
feiture of liquors shipped without proper labels, the court
may, where the facts justify it, adjudge the costs and ex-
penses against him.
Williams v. United States (C. C. A.), 254 Fed. 48.
In a prosecution in Colorado for violating the prohibition
law, a taxation of jury fees, bailiff's fees, meals for jury,
and bailiff and stenographer, is improper.
McLean v. People (Colo.), 180 Pac. 676.
The words, "expenses incurred and disbursements made
by and under the direction of district attorney," have ref-
erence to ordinary expenses, including amounts actually
disbursed, or for which he made himself personally liable,
such as hotel bills, railroad fare, etc., incurred while pros-
ecuting violaters of Prohibition Law, but does not include
employment of agents by the month to travel over the
county to ferret out possible offenders and gather evidence.
(Per Bennett, J.)
Irwin v. Klamath County (Ore.), 183 Pac. 780.
TITLE II— SEC. 33
Evidence.
I. Presumptions and Burden of Proof.
1. Constitutionality of Provision.
2. Possession Presumptively Illegal.
3. Proof of Intoxicating Character.
4. Presumption as to Agency.
5. Presumption from Tax Receipt.
6. Generally as to Illegal Acts.
II. Questions of Law and Fact.
HI. Judicial Notice.
IV. Proof of Time.
V. Variance.
VI. Admissibility, Relevancy and Competency.
1. Relevancy Must Appear.
2. Statutory Regulations.
3. Offenses Charged in Alternative.
4. Res Gestae.
5. Circumstantial Evidence.
6. Confessions and Admissions.
7. Incriminating Questions — Privilege.
8. Evidence at Former Trial.
9. Former Acquittal or Conviction.
10. Indictment or Conviction for Different Offenses.
11. Scienter and Intent.
12. Possession as Evidence.
13. Possession of Premises.
14. Character of Defendant's Business.
15. Reputation as Seller of Intoxicants.
16. Proof of Other Sales by Accused.
17. Possession of Tax Receipt.
18. Proof of Intoxicating Character of Liquor.
19. Proof of Solicitation of Orders.
20. Ordering and Receiving Large Quantities.
21. Records of Express and Railway Companies.
22. Testimony of Express and Railway Agents.
332 TITLE II— SEC. 33 OF ACT
23. Proof of Lawfulness of Possession.
24. Sales as Evidence of Unlawful Possession and
Manufacture.
25. Unlawful Issuance of Prescriptions.
26. Miscellaneous Questions of Relevancy.
VII. Weight and Sufficiency of Evidence.
1. \Yeight of Circumstantial Evidence.
2. Evidence of Detective, Accomplice, etc.
3. To Prove Intoxicating Character.
4. To Prove Manufacture or Possession of Appara-
tus.
5. To Prove Sale or Offering for Sale.
6. To Prove Unlawful Possession.
7. To Prove Introduction, Transportation or Deliv-
ery.
8. Miscellaneous Questions of Sufficiency.
VIII. Impeachment of Witnesses.
SEC. 33. After February 1, 1920, the possession of
liquors by any person not legally permitted under this
title to possess liquor shall be prima facie evidence that
such liquor is kept for the purpose of being sold, bar-
tered, exchanged, given away, furnished, or otherwise
disposed of in violation of the provision of this title.
Every person legally permitted under this title to have
liquor shall report to the commissioner within ten days
after the date when the eighteenth amendment of the
Constitution of the United States goes into effect, the
kind and amount of intoxicating liquors in his posses-
sion. But it shall not be unlawful to possess liquors in
one's private dwelling while the same is occupied and
used by him as his dwelling only and such liquor need
not be reported, provided such liquors are for use only
for the personal consumption of the owner thereof and
his family residing in such dwelling and of his bona
fide guests when entertained by him therein; and the
burden of proof shall be upon the possessor in any ac-
TITUJ II— SEC. 33 OF ACT 333
tion concerning the same to prove that such liquor was
lawfully acquired, possessed, and used.
I. Presumptions and Burden of Proof.
1. CONSTITUTIONALITY OP PROVISION.
It being within the Legislature's power to fix the rules
of evidence, where it makes possession of liquor prima
facie evidence of guilt of violation of the prohibition stat-
ute, it does not deprive defendant of due process of law.
Dees v. State (Ala. App.), 75 So. 645.
State v. Tincher, 181 W. Va. 441, 94 S. E. 503.
The law making the possession of more than one gallon
of spirituous liquor prima facie evidence of keeping it for
sale in violation of law, is constitutional.
State v. Randall, 170 N. C. 757, 87 S. E. 227, Ann.
Cas. 1918A, 438.
A statute, making the possession of more than a certain
amount of intoxicating liquor prima facie evidence of an
intent to violate provisions of the prohibitory law, is not
unconstitutional as invading the province of the judiciary,
and depriving the accused of the presumption of innocence,
or as making prima facie evidence of guilt a fact which has
no relation to. or does not tend to prove, the criminal act.
Sellers v. State, 11 Okla. Cr. App. 588, 149 Pac. 1071.
Le Clair v. White, 117 Me. 335, 104 Atl. 516.
Cannot Be Made Conclusive. — But a law which pro-
vides that the liquors in the possession of any person may
be seized and shall be conclusive evidence of the unlawful
keeping, storing and selling of same by the person having
such liquors in his possession, so far as it makes such pos-
session conclusive evidence is unconstitutional and void.
State v. Sixo, 77 W. Va. 243, 87 S. E. 267.
Within certain limitations, the Legislature may enact that
when specified facts have been proved, they shall be prima
facie evidence of the guilt of the accused, and shift the
iburden of proof upon him.
Griffin v. State, 142 Ga. 636, 83 S. E. 540.
Kunsberk v. State, 147 Ga. 591, 95 S. E. 12.
334 TITLE II— SEC. 33 OF ACT
Thus a statute making the possession of more than a
certain amount of intoxicating liquor prima facie evidence
of an intent to violate the provisions of a prohibitory law
is not unconstitutional as invading the province of the ju-
diciary and depriving the accused of the presumption of
innocence, nor as making prima facie evidence of guilt a
fact which has no relation to, or does not tend to prove,
the criminal act.
Caffee v. State, 11 Okla. Cr. App. 485, 148 Pac. 680.
Southern Exp. Co. v. Whittle, 194 Ala. 406, 69 So.
652, L. R. A. 1916C, 278.
2. POSSESSION PRESUMPTIVELY ILLEGAL.
By statute in a number of states the finding of liquor in
unusual quantity, or in quantity above a certain specified
amount, in the possession of the accused or in a building
or upon premises under his control, creates a presumption
that the liquor is kept for sale or other unlawful purpose
and places upon him the burden of showing the contrary.
See Campbell v. State (Ala. App.), 78 So. 715.
State v. Blackwell, 103 Wash. 337, 174 Pac. 646.
True v. Hunter, 174 la. 442, 156 N. W. 363.
Nies v. Jepson, 174 la. 188, 156 N. W. 292.
State v. Jarvis (la.), 165 N. W. 61.
Nies v. District Court (la.), 161 N. W. 316.
State v. Theodore (Mo.), 191 S. W. 422.
State v. Rawlings, 232 Mo. 544, 134 S. W. 530.
State v. Bunker (Mo. App.), 206 S. W. 399.
Carter v. Commonwealth, 123 Va. 810, 96 S. E. 766.
State v. Tincher, 81 W. Va. 441, 94 S. E. 503.
Thus it is held that the keeping of whisky in a building
not used exclusively for a dwelling is prima facie evidence
that it is kept for sale, or other unlawful disposition.
Campbell v. State (Ala. App.), 78 So. 715.
And in a prosecution for having in excess of one-half
gallon of intoxicating liquors other than beer the burden
of rebutting the statutory presumption arising from pos-
session of excess was on accused.
State v. Blackwell, 103 Wash. 337, 174 Pac. 646.
TITLE II— SEC. 33 OF ACT 335
So where a grip containing fifteen pints of whisky was
found in defendant's hotel premises, and in his possession,
the presumption was that the whisky was kept there by
defendant for sale, putting the burden on him to explain
the possession and show that the whisky was not kept with
intent to sell.
State v. Jarvis (la.), 165 N. W. 61.
Under the Mapp prohibition law of Virginia prohibiting
the transportation, receipt or possession of liquor except
under certain specified conditions, the state makes out a
case by showing the possession of the liquor. The burden is
then upon the accused to prove any defense he may have
to offer.
Carter v. Commonwealth, 123 Va. 810, 96 S. E. 766.
If unlawful sales of intoxicating liquor are shown, it is
presumed the liquor was kept with an unlawful intent.
Bowers v. Maas, 154 la. 640, 135 N. W. 25.
Such presumptions are not objectionable as constructive
findings of guilt and they may be made applicable to con-
tempt proceedings for violation of injunctions against the
sale of intoxicants.
Nies v. District Court (la.), 161 N. W. 316.
Presumption as to Ownership of Liquor Found in
Possession. — There is a presumption that whisky in the
possession of and sold by a merchant belongs to him.
Rash v. State, 13 Ga. App. 262, 69 So. 239.
Weight of Statutory Presumption. — The term "printa
facie evidence," as used in a statute making proof of cer-
tain facts prima facie evidence of guilt, is such evidence as
in the judgment of the law, is sufficient to establish the fact,
if it be credited by the jury, and which, unless rebutted or
the contrary proved, remains sufficient for that purpose.
Whether or not such evidence is sufficient to overcome the
presumption of innocence of a defendant and to establish
his guilt beyond a reasonable doubt, when all the evidence
336 TITLE II— SEC. 33 OF ACT
including the presumptions are considered, is for the de-
termination of the jury.
Huff v. State, 12 Okla. Cr. App. 138, 152 Pac. 464.
Caffee v. State, 11 Okla. Cr. App. 485, 148 Pac. 680.
Sellers v. State, 11 Okla. Cr. App. 588, 149 Pac. 1071.
Wilson v. State, 11 Okla. Cr. App. 510, 148 Pac. 823.
Conley v. State (Okla. Cr. App.), 179 Pac. 480, 483.
».
Acts 1915, p. 9, § 4, providing that keeping of prohibited
liquors in any building not used exclusively for a dwelling
shall be prima facie evidence that such liquors are kept for
sale, etc., creates a presumption of law which rebutting
evidence does not nullify or destroy ; such presumption of
guilt being an evidential fact for consideration in deter-
mining the guilt or innocence of the defendant.
Maisel v. State (Ala. App.), 81 So. 348.
Such presumptions have been held not to create a new
rule of evidence, but to merely enlarge the application of
an existing rule of evidence.
State v. Butler (la.), 173 N. \Y. 239.
The presumption of Code of Iowa, § 2427, that the find-
ing of liquor creates the presumption that it was kept with
unlawful intent does not create a new rule of evidence, but
merely enlarges the application of a rule of evidence.
State v. Butler (la.), 173 N. W. 239.
Under presumptions of this character the jury is to con-
sider the case in the light of all the evidence including the
statutory presumption of guilt on the one hand and the
presumption of innocence on the other. In short, the pre-
sumption raised by the statute may be rebutted or the con-
trary may be shown.
Caffee v. State, 11 Okla. Cr. App. 485, 148 Pac. 680.
Neal v. Commonwealth (Va.), 98 S. E. 629.
Pine v. Commonwealth, 121 Va. 812, 93 S. E. 652.
Lane v. Commonwealth, 122 Va. 916, 95 S. E. 466.
Aaron v. State, 18 Ariz. 378, 161 Pac. 881.
The prima facie presumption of the unlawful introduc-
tion of intoxicating liquor into Indian Territory, etc., de-
TITLE II— SEC. 33 OF Aci 337
clared by Act May 18, 1916, § 1 (Comp. St. § 4144a), may
be rebutted by evidence to the contrary.
Castle v. Lewis (C. C. A.), 254 Fed. 917, 918.
Under a provision declaring that the keeping in excess of
a certain amount of intoxicating liquor shall be prima fa-
cie evidence of an intention to convey, sell or otherwise
dispose of such liquors, evidence of such possession is suf-
ficient to establish the unlawful intent, unless rebutted, or
the contrary proved, yet it does not make it obligatory
upon the jury to convict after the presentation of such
proof but such evidence is competent and sufficient to jus-
tify a jury in finding a defendant guilty, provided it does
in effect satisfy them of his guilt beyond a reasonable doubt.
Caffee v. State, 11 Okla. Cr. App. 485, 148 Pac. 680.
"In the case of Pine v. Commonwealth, 121 Va. 812, 93
S. E. 652, this court decided that the Prohibition Act does
not interdict the possession in a home for private use of
distilled liquor, wine, beer, or other malt liquor, the pos-
session of which was lawfully acquired, but merely de-
clares that the possession of more than the specified quan-
tity shall be prima facie evidence of a 'purpose of sale.'
This presumption is simply a rule of evidence, and, like
other presumptions, may be rebutted."
Neal v. Commonwealth (Va.), 98 S. E. 629.
"Possession of more than the specified quantity of arde"nt
spirits 'shall be prima facie evidence of a purpose of sale,
merely establishes a rule of evidence * * * The pre-
sumption is merely prima facie and may be rebutted.'
When the commonwealth has proved the possession of
more than the specified quantity of ardent spirits, etc., and
there is no rebuttal evidence of that fact, and none that it
was lawfully acquired, and was in the possession of the
accused in his home for private use and not for sale, the
prima facie presumption prescribed by the Prohibition Act
that it was kept for the purpose of sale would generally
be sufficient to warrant a conviction. We say generally,
because it is possible to conceive a situation in which the
commonwealth's own evidence of possession might be such
as to repel the presumption that it was unlawful. As in
negligence cases, it sometimes happens that plaintiff's evi-
—22
338 TITLE II— SEC. 33 OF ACT
dence develops such a case of contributory negligence as
would bar a recovery. In the present case as observed, the
evidence on behalf of the accused tends to show the law-
ful acquisition and possession of the beverages in question;
and the jury was confronted by a prima facie presumption
that the decoction was in the possession of the accused for
the purpose of sale, on the one hand and by the presump-
tion of innocence fortified by rebuttal evidence on the other.
In such case, the burden of proof to establish the guilt of
the accused beyond a reasonable doubt rested on the com-
monwealth, and constituted a continuing burden, which in-
heres in every stage of the prosecution."
Neal v. Commonwealth (Va.), 98 S. E. 629, 630.
"In the case of State v. Wilkerson, 164 N. C. 431, at page
435, 79 S. E. 888, at page 890, in ^a similar prosecution un-
der the Prohibition Act of that State (the language of which
in the matter here involved is practically identical with that
of our own statute) the court says: The jury were in-
structed that the fact of his (accused) having in his posses-
sion more than one gallon of the liquor made out a prima
facie case against the defendant. If the court had stopped
here, and not qualified this instruction, it would have been
correct : but it did not do so, but went beyond the terms of
the statute and the law when it further charged that it then
was duty of the defendant to go forward and satisfy the
jury, by the greater weight of the evidence, that he did not
have the liquor in his possession for the purpose of sale.
In this further instruction we think there was error. The
court then proceeds to show that it was the province of the
jury to consider the case in the light of all the evidence, giv-
ing weight to the prima facie presumption on the one side,
the presumption of innocence on the other, and all the evi-
dence adduced. This case was approved and followed in
State v. Russell, 164 N. C. 482, 80 S. E. 66, where it was
held. Where the statute makes the possession by one per-
son of a certain quantity of spirituous liquor prima facie
evidence of an unlawful intent to sell, the burden of the is-
sue remains on the state to show the guilt, as charged in
the indictment, beyond a reasonable doubt ; and when the
prima facie case has been established, under the provision
of the statute, it does not forestall the verdict, for it only
TITLE II— SEC. 33 OF ACT 339
means that as evidence it is sufficient to establish the ulti-
mate fact of guilt, and the jury may convict if they find
that it is not explained or rebutted. The presumption of
innocence is still with the prisoner, and the burden contin-
ues to rest upon the state to show guilt beyond a reasonable
doubt."
Neal v. Commonwealth (Va.), 98 S. E. 629, 631.
In the absence of rebutting evidence the statutory pre-
sumption is in and of itself sufficient to support a convic-
tion, and, logically, should prevail, and it has been held in
some jurisdictions that, unrebutted, it must prevail.
Gillespie v. State, 96 Miss. 856, 51 So. 811.
Aaron v. State, 18 Ariz. 378, 161 Pac. 881.
. Under a statute providing that the fact that any person
has in his possession appliance adapted to retailing liquors
shall be presumptive evidence that the person owning the
same is engaged in illegally selling intoxicating liquors, such
presumption must prevail in the absence of any proof in de-
nial of the charge.
Gillespie v. State, 96 Miss. 856, 51 So. 811.
Where the state has shown an introduction of intoxicat-
ing liquor in violation of the constitutional prohibition
amendment, it has made out a prima facie case authorizing a
conviction of the person or persons introducing it, and such
person to escape conviction, must successfully and satisfac-
torily show that the liquor was introduced for a lawful pur-
pose.
Aaron v. State, 18 Ariz. 378, 161 Pac. 881.
State v. Tincher, 81 W. Va. 441, 94 S. E. 503.
Under other statutes, even if the accused kept liquors on
the premises of another without his consent such keeping
when shown, would be prima facie evidence that the keep-
ing was for sale or with intent to sell the same contrary to
law, and the fact of ownership or possession of the prop-
erty where such liquors were kept would be merely a matter
of evidence pertinent to the question as to who was respon-
sible for such keeping.
Stout v. State, 15 Ala. App. 206, 72 So. 762.
340 TITLE II— SEC. 33 OF ACT
Whether Building Used Exclusively as a Dwelling. —
A statute providing that the keeping of prohibited liquors
in any building not used exclusively for a dwelling shall be
prima facie evidence that they are kept for sale, does not
apply where a jug of whisky was hid in a patch of weeds
back of the garden of defendant's brother, whom defendant
was visiting at the time.
Willingham v. State, 11 Ala. App. 205, 65 So. 847.
Whether or not a building was a dwelling, or used exclu-
sively as a dwelling, is generally, in the absence of statutory
definition or description, a question for the jury.
Stokes v. State, 5 Ala. App. 159, 59 So. 310.
Bare v. Commonwealth, 122 Va. 783, 94 S. E. 168, 169.
Where there was evidence that accused had a store and
a house on the same premises, that men not members of
accused's family ate and slept in the house, that liquors in
convenient packages for illicit sale were found in the house,
and that men under influence of intoxicants were frequently
seen on his premises, it was a question for the court sitting
as a jury whether the house was a building not used exclu-
sively for a dwelling within Act Aug. 25, 1909 (Acts Sp.
Sess. 1909, p. 64), § 4 providing that the keeping of pro-
hibited liquors in a building not so exclusively used shall be
prima facie evidence that they are kept for sale, or with in-
tent to sell contrary to law, and hence the admission of evi-
dence that the liquors were found in the house was compe-
tent.
Stokes v. State, 5 Ala. App. 159, 59 So. 310.
In a prosecution for unlawfully dispensing cider contain-
ing more than 1 per cent of alcohol, in violation of the Mapp
prohibition law, cider having been made by defendant from
his own fruit, if there is a doubt as to whether the building
wherein the cider was given away was part of defendant's
bona fide home, the question should be submitted to the jury,
to determine from the evidence the question of fact whether
such was the case.
Bare v. Commonwealth, 122 Va. 783, 94 S. E. 168, 169.
Proof that defendant kept whisky in his home, not used
TITUJ II— SEC. 33 OF ACT 341
exclusively for a dwelling, made a prima facie case against
him under the express provision.
Dunn v. State, 8 Ala. App. 382, 62 So. 379.
Limits of Presumption; Rebuttal.— The accused may
by any competent evidence rebut the presumption arising
from the possession of liquors seized, and must do so to es-
cape conviction under such indictment.
State v. Tincher, 81 W. Va. 441, 94 S. E. 503.
Effect of the Legal Presumption.— Under a statute de-
claring that the keeping in excess of a certain amount of
intoxicating liquor "shall be prima facie evidence of an in-
tention to convey, sell, or otherwise dispose of such liquor,"
it is error to charge that "the keeping in excess of one gallon
of spirituous liquor constitutes prima facie evidence of in-
tent to convey, sell, or otherwise dispose of such liquor, and
places upon the defendant the burden of raising a reasonable
doubt of his guilty intent to so convey, sell, or dispose of
such liquor," since the statute only means to make such evi-
dence competent and sufficient to establish the unlawful in-
tent, unless rebutted or the contrary proved ; yet it does not
make it obligatory upon the jury to convict after the pres-
entation of such proof. Whether or not such evidence is
sufficient to overcome the presumption of innocence of a de-
fendant, and to establish his guilt beyond a reasonable doubt,
when all the evidence including the presumptions is consid-
ered, is for the determination of the jury.
Butler v. State, 12 Okla. Cr. App. 530, 159 Pac. 1090.
The finding of liquor on Sunday in the locked room of a
hotel kept by the defendant's wife and the presence of men
in the room with the liquor raised no presumption against
him ; he not being the proprietor.
Nies v. Jepson, 174 la. 188, 156 N. W. 292.
Under a statute, providing that the finding of intoxicating
liquors in unusual quantities in a private dwellng or its de-
pendencies of any person keeping a tavern, public resort,
house, grocery, or other place of public resort, shall be pre-
sumptive evidence that such liquors are kept for illegal sale,
no presumption arises, from the finding of large quantities
342 TITLE II— SEC. 33 OF ACT
of beer in the residence of an individual not engaged in one
of the numerated businesses, that the liquors were kept for
sale in violation of law.
True v. Hunter, 174 la. 442, 156 N. W. 363.
Where the liquors were found in possession of a teamster
who worked for a druggist and there was no showing that
the teamster had knowledge of their being intended for an
unlawful purpose, and it was further shown that it was pos-
sible that they might have been intended for the purpose of
filling prescriptions lawfully given, it was held that the pre-
sumption, if any, was rather that they were intended for a
lawful purpose, and that a conviction could not be had.
State v. Bunker (Mo. App.), 206 S. W. 399, citing State
v. Theodore (Mo.), 191 S. W. 422; State v. Richard-
son (Mo. App.), 182 S. W. 782; State v. Rawlings,
232 Mo. 544, 134 S. W. 530.
But that defendant acknowledged to searching officer that
she had liquor in her house and told where it was, was not
conclusive of her innocent purpose in having it in her pos-
session.
Merri wether v. Tuscaloosa, 13 Ala. App. 651, 69 So.
258.
Sufficiency of Explanation of Receipt or Possession
of Liquor. — Where the accused offers such explanation of
his receipt or possession of liquor as would, if true, consti-
tute a good defense under the law, the question whether it
is true is for the jury.
State v. Bradley, 109 S. C. 411, % S. E. 142.
State v. Fountain (la.), 168 N. W. 285.
Rogers v. State, 133 Ark. 85, 201 S. W. 845.
Wilson v. Commonwealth, 181 Ky. 370, 205 S. W. 391.
In a prosecution for possession of malt liquor for the pur-
pose of sale in violation of local option law, evidence show-
ing shipment to defendant of unusual quantities of intoxi-
cating liquor without satisfactory explanation of its dispo-
sition held to present a question for the jury.
Wilson v. Commonwealth, 181 Ky. 370, 205 S. W. 391.
In such a prosecution, it is a question for the jury whether
TITUS II— SEC. 33 OF ACT 343
accused received whisky by express and used it unlawfully
in her restaurant, or whether it had been given her and was
being kept temporarily in the restaurant until she could take
it home.
State v. Bradley, 109 S. C. 411, 96 S. E. 142.
Whether defendant was keeping whisky with intent to
sell or to give to his employees solely as a gratuity, or to
induce them to continue in his employment at lower wages
than otherwise he must have paid, held under the evidence
for the jury.
State v. Fountain (la.), 168 N. W. 285.
Evidence regarding the taking of intoxicating liquor to ac-
cused's premises, where it was found hidden, etc., held to
make a jury question whether accused received the liquor for
storage, distribution, or on consignment for another.
Rogers v. State, 133 Ark. 85, 201 S. W. 845.
Accused Claiming to Have Merely Purchased for
Another. — On the trial of one charged with selling whisky,
proof that he received money from another person, accom-
panied by a request to procure whisky for the latter, and
thereafter went off, and returned, and delivered a quart of
whisky to that person, would cast on the accused the burden
of showing where, how, and from whom he got the whisky.
Whether he successfully carried this burden, either by his
own uncorroborated testimony or otherwise, would be a
question for determination by the jury.
Grant v. State, 87 Ga. 265, 13 S. E. 554.
Mack v. State, 116 Ga. 546, 42 S. E. 766, 59 L. R. A.
602.
Gaskins v. State, 127 Ga. 51, 55 S. E. 1045.
Benton v. State, 9 Ga. App. 422, 71 S. E. 498.
Touchstone v. State, 17 Ga. App. 333, 86 S. E. 744.
See also, Smith v. State, 14 Ga. App. 577, 81 S. E. 801.
Where the state offered evidence that accused delivered
intoxicating liquor to a third person and receiving payment,
and accused claimed that he delivered the liquor in good
faith under an agreement that he should order it for such
person, the question of his good faith was for the jury.
State v. Bailey, 168 N. C. 168, 83 S. E. 711.
344 TITLE II— SEC. 33 of ACT
Where on trial for having possession of intoxicating liq-
uor for the purpose of sale, the evidence tended to show that
accused purchased the liquor in another state as agent for
other persons who sent him there for the purpose of buying
it for them, and who gave him the money with which to pay
therefor and paid him for his service, and that he brought
it within the state for the purpose of distributing it to them,
his intent, and whether the transaction was a sale, were
questions for the jury.
State v. Wilkerson, 164 N. C. 431, 79 S. E. 888.
\\hether one accused of selling whisky was acting solely
as agent of the purchaser, or had a pecuniary interest in pro-
curing the purchase, was for the jury.
Snead v. State, 134 Ark. 303, 203 S. W. 703.
And, where the evidence although insufficient to satisfy
the jury beyond a reasonable doubt that the accused partici-
pated in the sale of whisky, was of such a nature as to com-
pel the conclusion that the accused was participating in the
illegal sale of lager beer, unless the transaction could be sat-
isfactorily explained, the question as to whether the explana-
tion was satisfactory was one solely for the jury.
Dent v. State, 14 Ga. App. 269, 80 S. E. 548.
3. PROOF OF INTOXICATING CHARACTER.
It being a matter of common knowledge that whisky is an
intoxicating liquor, and that liquors containing no more than
1 per cent of alcohol are not intoxicating, it need not be
shown that the whisky found in defendant's place of busi-
ness contained more than 1 per cent of alcohol in order to
secure conviction.
State v. Bradley, 109 S. C. 411, 96 S. E. 142.
But when the alleged violation of a prohibition law con-
sists in a sale of beer, the prosecution must prove directly
or circumstantially that it was a malt or an intoxicating beer.
Lumpkin v. Atlanta, 9 Ga. App. 470, 71 S. E. 755.
Cripe v. State, 4 Ga. App. 832, 62 S. E. 567.
Du Vail v. Augusta, 115 Ga. 813, 42 S. E. 265.
Martin v. Rome, 9 Ga. App. 574, 71 S. E. 879.
TITLE II— SEC. 33 OF ACT 345
Elsewhere it is held that where the liquor in defendant's
possession is proven to be beer, which is a malt liquor, the
court will presume that it is intoxicating without proof of
that fact, though defendant may rebut such presumption.
Hoskins v. Commonwealth, 171 Ky. 2(H, 188 S. W. 348.
To warrant a conviction for the sale of malt liquor and
other liquors specifically enumerated in a statutory definition
of intoxicating liquors, it is only necessary to prove that the
thing sold was one of the classes named ; but as to other liq-
uors, or liquids, capable of being used as a beverage, it is
necessary to prove their intoxicating property.
State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A.
191 7B, 962n.
Where defendant was indicted for being interested in the
sale of intoxicating liquor called, "Buk," it was necessary
for the state to prove the sale of such liquor, and that it was
intoxicating, and a conviction could not be based upon evi-
dence showing that defendant was interested in the sale of
beer.
Carleton v. State, 129 Ark. 361, 196 S. W. 124.
In a prosecution under a statute making it unlawful to
sell vinous liquors except for medicinal or sacramental pur-
poses, under an indictment charging accused with selling to
a specified person, not for medicinal or sacramental purposes,
a certain vinous liquor, the correct name of which was to the
grand jurors unknown, but which was then and there called
cider, the state must prove to the jury's satisfaction that the
accused was the person named in the indictment, that the
liquor was a vinous liquor commonly called cider and that
it was not sold for medicinal or sacramental purposes. -
State v. Coverdale, 1 Boyce's (24 Del.) 555, 77 Atl. 754.
WThere the liquor is shown to be a beverage made in ac-
cordance with a certain formula and sold generally to the
trade under a trade name, it will be presumed that all of it
is made in accordance with the formula and that it is of uni-
form character and quality.
State v. Clark, 124 La. 965, 50 So. 811.
Question for Jury. — The intoxicating character of the
liquor which the accused is charged to have sold or possessed
346 TITLE II— SEC. 33 OP ACT
is a question for the jury under proper definitions and in-
structions from the court.
Turner v. State, 14 Ala. App. 29, 70 So. 971.
Malick v. State (Neb.), 169 N. W. 5.
State v. Coverdale, 1 Boyce's (24 Del.) 555, 77 Atl. 754.
Cooper v. State, 19 Ariz. 486, 172 Pac. 276.
The court must instruct the jury as to what constitutes
intoxicating liquor within the contemplation of the statute.
This is not a matter left to the determination of each sepa-
rate jury and juror.
United States v. Schmauder (D. C.), 258 Fed. 251.
Under the evidence, the question as to whether the liquor
described in the information was intoxicating was a question
for the jury.
Malick v. State (Neb.), 169 N. W. 5.
In a prosecution for selling malt liquors contrary to law,
the case was for the jury where the state's evidence tended
to show a sale of "Schlitz" beer by the defendant.
Turner v. State, 14 Ala. App. 29, 70 So. 971.
In a prosecution for illegal sale of vinous liquors, not for
medicinal or sacramental purposes, it is for the jury to de-
termine whether the liquor in question was or was not vi-
nous, adopting as correct the definition of vinous liquor as
given by the court.
State v. Coverdale, 1 Boyce's (24 Del.) 555, 77 Atl. 754.
4. PRESUMPTION AS TO AGENCY.
The rule is well settled that proof that one charged with
selling intoxicating liquors, who receives money from an-
other person, accompanied with a request to procure whisky
for the latter, and shortly thereafter delivers whisky to
such other person, has the onus upon him of explaining
where, how, and from whom he got the liquor, and that, if
the explanation offered by him is supported only by his own
statement, the jury are authorized to find him guilty if they
II— SEC. 33 OF ACT
believe his explanation to be a mere subterfuge to cover up
an illegal sale by himself.
Farmer v. State, 18 Ga. App. 54, 88 S. E. 797.
Scott v. State, 18 Ga. App. 309, 89 S. E. 349.
Langston v. Hazelhurst, 9 Ga. App. 449, 71 S. E. 592.
Gaskins v. State, 127 Ga. 31, 55 S. E. 1045.
Simpson v. Eastman, 16 Ga. App. 185, 84 S. E. 721.
Smith v. State, 14 Ga. App. 577, 81 S. E. 801.
Mulling v. State, 17 Ga. App. 828, 88 S. E. 709.
Lane v. Millen, 18 Ga. App. 18, 88 S. E. 748.
Grant v. State, 87 Ga. 265, 13 S. E. 554.
White v. State, 93 Ga. 47, 19 S. E. 49.
Mack v. State, 116 Ga. 546, 42 S. E. 776, 59 L. R. A.
602.
Bray v. Commerce, 5 Ga. App. 605, 63 S. E. 596.
Highsmith v. Waycross, 7 Ga. App. 611, 67 S. E. 677.
Cheatwood v. Buchanan, 9 Ga. App. 828, 72 S. E. 284.
Myers v. State, 16 Ga. App. 266, 85 S. E. 206.
Cowart v. State, 14 Ga. App. 763, 82 S. E. 313.
Jones v. State, 12 Ga. App. 564, 77 S. E. 892.
Shaw v. State, 3 Ga. App. 607, 60 S. E. 326.
McGovern v. State, 11 Ga. App. 267, 74 S. E. 1101.
Johnson v. State, 13 Ga. App. 371, 79 S. E. 178.
Cooper v. Ft. Valley, 13 Ga. App. 169, 78 S. E. 1097.
Starr v. State, 12 Ga. App. 360, 77 S. E. 205.
Jackson v. State, 13 Ga. App. 147, 78 S. E. 867.
Slaughter v. State, 17 Ga. App. 332, 86 S. E. 741.
Touchstone v. State, 17 Ga. App. 333, 86 S. E. 744.
Wolf v. State, 16 Ga. App. 250, 85 S. E. 86.
Fletcher v. State, 12 Ga. App. 809, 78 S. E. 478.
Morgan v. Cedartown, 13 Ga. App. 139, 78 S. E. 863.
George v. State, 17 Ga. App. 555, 87 S. E. 814.
State v. Bailey, 168 N. C. 168, 83 S. E. 711.
This onus is not shifted, so as to require a verdict of not
guilty, simply by the statement of the accused that he acted
merely as agent for the purchaser, and obtained the whisky
from another person mentioned. It is for the jury to de-
termine the actual relation of the defendant to the act
charged.
Smith v. State, 14 Ga. App. 577, 81 S. E. 801.
Mulling v. State, 17 Ga. App. 828, 88 S. E. 709.
348 TITLE II— SEC. 33 OF ACT
Simpson v. Eastman, 16 Ga. App. 185, 84 S. E. 721.
Langston v. Hazlehurst, 9 Ga. App. 449, 71 S. E. 592.
Starr v. State, 12 Ga. App. 77 E. S. 205.
"The rebutting evidence does not destroy or nullify the
presumption arising out of the proven facts, and itself make
an evidential fact for consideration by the jury, but leaves
the question for the determination of the jury under all of
the circumstances. 16 Cyc. 1070; Marston v. Biegelow, 150
Mass. 45, 22 N. E. 71, 5 L. R. A. 43 ; National Mason Acci.
Ass'n v. Burr, 57 Neb. 437, 77 N. W. 1098."
Wynn v. State, 11 Ala. App. 182, 65 So. 687.
The fact that, when paying the money to the accused,
the person who purchased the whisky instructed him to pro-
cure the whisky from a particular person, and that the ac-
cused went to that person and procured the whisky from
him, does not remove the onus resting on the defendant to
show how he procured the whisky, and therefore fails to
negative the reasonable inference that he was an agent of
the seller as well as of the buyer, and received a commis-
sion on the sale.
Scott v. State, 18 Ga. App. 309, 89 S. E. 349.
Such evidence in behalf of the state, if credible to the
jury, authorized the inference that defendant was the agent
of one who unlawfully sold whisky, and cast upon him the
burden of rebutting this possible inference.
George v. State, 17 Ga. App. 555, 87 S. E. 814.
This burden would be successfully carried by the accused
if, in corroboration of his own statement, he proved by an
unimpeached witness, that he had, in fact, bought the whisky
from another person and paid him for it.
Bray v. Commerce, 5 Ga. App. 605, 63 S. E. 596.
Farmer v. State, 18 Ga. App. 54, 88 S. E. 797.
Cowart v. State, 14 Ga. App. 763, 82 S. E. 313.
Lane v. Millen, 18 Ga. App. 18, 88 S. E. 748.
Indeed, it has been held that unless the testimony of the
corroborating witness be impeached, there is no case for the
jury.
Cowart v. State, 14 Ga. App. 763, 82 S. E. 313.
TITLE II— SEC. 33 OF ACT 349
The court cannot assume, however, merely as a matter of
law, that a witness who exchanged whisky and money be-
tween the defendant and the purchaser was an accomplice
to the sale, where the evidence left this question in doubt.
Fisher v. State, 81 Tex. Cr. App. 568, 197 S. W. 189.
5. PRESUMPTION FROM TAX RECEIPT.
It is competent for the state to make the possession of a
license to sell or the possession of a federal tax receipt, prima
facie evidence that the liquor is kept for sale, or even of the
unlawful sale itself.
Taylor v. State, 14 Ga. App. 114, 80 S. E. 292.
In the above case it was conceded that the defendant, in
behalf of an association known as the "Seminole club/' and
as its nominal secretary, obtained a United States tax re-
ceipt, or license, authorizing that club to sell intoxicating liq-
uor at retail ; and hence it was held that the documentary
evidence upon this point placed upon the defendant the bur-
den of proving that he did not in any wise participate in any
of the sales shown to have been made in the club.
Taylor v. State, 14 Ga. App 114, 80 S. E. 292.
6. GENERALLY AS TO ILLEGAL ACTS.
Burden on State. — In a .prosecution for the illegal sale
of intoxicants, the burden is upon the state to prove the sale;
and as the presumption is in favor of innocence, the sale
must be established by something more than a mere infer-
ence from facts not necessarily implying guilt.
Scoggin v. Morrilton, 124 Ark. 585, 187 S. W. 445.
In a prosecution for illegal sale of liquor, averments in
the indictment that defendant sold, caused, suffered, and
knowingly permitted liquor to be sold must be proven in or-
der to sustain a conviction.
State v. Waxman (N. J. Sup.), 107 Atl. 150.
And where the offense defined by the statute is a sale, the
onus is upon the prosecution to prove a sale, including the
receipt or promise of a price or consideration. In other
words, the state must negative the idea of a mere gift or loan.
Flood v. State, 12 Ga. App. 702, 78 S. E. 268.
350 TITLE II— SEC. 33 OF ACT
It must be shown that the sale was after the passage of
the statute prohibiting such sales.
Wilson v. State, 130 Ark. 204, 196 S. \Y. 921.
And that the sale occurred prior to the filing of the in-
dictment therefor.
Wales v. State (Tex. Cr. App.), 212 S. W. 503.
But under a local option law which makes prohibition the
rule and license the exception, the presumption is that all
sales are illegal, and after the proof of the sale in a given
case, the burden is then upon the accused to show that it was
made under a license.
State v. Hays, 38 S. D. 546, 162 N. W. 311.
State v. Tygarts Valley Brewing Co., 71 W. Va. 38, 75
S. E. 149.
Evidence Must Connect Accused with Sale as
Guilty Party. — It is hardly necessary to state that the bur-
den is upon the prosecution to connect the accused with the
illegal sale as the guilty party. The state must prove the
illegal sale, the corpus delicti, and as the presumption of
innocence is with the accused, it must prove beyond a rea-
sonable doubt that he made it.
Scoggins v. United States (C. C. A.), 255 Fed. 825.
Sale in Defendant's Presence. — Although it be shown
by the evidence on the trial of one charged with the sale of
intoxicating liquor that a sale of such liquor was made in
the presence of the defendant, it is error to charge the jury
that/ if such a sale was made in his house by some other
person, that would raise a presumption that it was the de-
fendant's business, and the burden would be upon him to
show that he had no connection with it.
Whitley v. State, 14 Ga. App. 577, 81 S. E. 797.
Presumption of Intent from Sale. — The general rule
that crime involves intention is applicable to a law prohibit-
ing sales of liquor to a minor, intoxicated person, person in
the habit of becoming intoxicated. Indian, and posted per-
son, by any person except a druggist, and making the fact
of sale prima facie evidence of an intent of the seller to vio-
late the law.
People v. Dann, 183 Mich. 554, 149 N. W. 1002.
TITLE II— SEC. 33 OF ACT 351
In a prosecution for illegal sale of liquor, where there is
evidence beyond reasonable doubt that accused sold the liq-
uor, an intent to violate the law will be implied.
People v. Allen (Cal. App.), 174 Pac. 374.
See also, Cooper v. State, 19 Ariz. 486, 172 Pac. 276.
Where the liquor sold was shown to be Jamaica ginger
and the defendant set up that it was sold by him in good
faith as such the burden was upon him to prove it to the
satisfaction of the jury.
State v. Hastings, 2 Boyce's (25 Del.) 482, 81 Atl. 403.
Where the prosecution is for being in control or posses-
sion of intoxicating liquors, in violation of statute, and the
defense is that defendant had no knowledge of the presence
of the liquor found in his possession, it raises a question of
fact, and it will be reasonably presumed that he had knowl-
edge thereof.
Jackson v. Gordon (Miss.), 80 So. 785.
Where the charge is the shipment of liquor into prohibi-
tion territory concealed in barrels of alleged empty bottles,
the burden is upon the state to establish a guilty intent by
showing that the accused knew that the liquor was in the
barrels shipped.
State v. McCowen (Mo. App.), 189 S. W. 618/
Under the Arkansas statute, Acts 1917, p. 41, Sec. 1, pro-
hibiting persons from transporting liquor for another or oth-
ers over any public highway, the onus is upon the state to
show that the accused was transporting the liquor for an-
other and not for himself, it was intended for illegal sale.
Lacey v. State, 135 Ark. 470, 205 S. W. 814.
Burden of Proving Legality of Express Deliveries.
—The mere fact that the defendant delivered different ship-
ments to different persons of the same name did not place
on it the burden of showing legality of all deliveries to con-
signees of that name.
Adams Exp. Co. v. Commonwealth, 178 Ky. 59, 198 S.
W. 556.
352 TITLE II— SEC. 33 OF ACT
Of Proving Physician Duly Licensed. — In a prosecu-
tion for illegally issuing a prescription for intoxicating liq-
uors in the name of a licensed physician, the state had the
burden of showing that the physician was licensed though
such averment may have been unnecessary.
McAllister v. State, 156 Ala. 122, 47 So. 161.
Presumption of Wife's Duress. — Where husband and
wife were arrested for bringing 6 or 8 sacks of whisky, con-
taining 20 quarts each, into the state in an automobile, the
facts were sufficient to rebut any presumption, if it existed,
that the wife was acting under the husband's duress.
Morton v. State (Tenn.), 209 S. W. 644.
In a prosecution against a physician for the unlawful is-
suing of a prescription for intoxicating liquor, the burden
is upon the state to show a violation of the statute beyond a
reasonable doubt.
State v. Morton, 38 S. D. 504, 162 N. W. 155, 156.
Burden of Proving Former Conviction. — In order to
warrant the imposition of the increased penalty imposed for
a second conviction, it is necessary that a former conviction
should have been alleged in the indictment and also proven.
The court cannot take judicial knowledge of a former con-
viction for the purpose of imposing the penalty prescribed
for a second conviction.
State v. Davis, 68 W. Va. 142, 69 S. E. 639, Ann. Cas.
1912A, 996, 32 L. R. A., N. S., 501.
But where record evidence of the former conviction of
one of similar name as defendant is offered, it is not neces-
sary for the state to prove that the person named in such
former conviction, and the defendant on trial, is one and the
same person.
Files v. State (Okla. Cr. App.), 182 Pac. 911.
Presumption That Officers Did Their Duty. — There is
a presumption that, in the enforcement of the prohibition
law, the officers charged with the carrying out of its provi-
sions have done their duty.
Thornton v. Skeleton (Ga.)*, 99 S. E. 299.
TITLE II— SEC. 33 OF ACT 353
Thus where officers found a barrel of whisky under de-
fendant's stable and two other barrels buried near by, under
Acts Ex. Sess. 1915, p. 88, § 20, it being their duty to seize
the same to be forfeited, it will be presumed that they dis-
charged such duty.
Thornton v. Skeleton (Ga.), 99 S. E. 299.
n. Questions of Law and Fact.
Question for Court.— The sense in which the statute
providing that all places "used" for the illegal sale or keep-
ing intoxicants are common nuisances, uses the quoted word,
is a question for the court.
State v. Gastonguay (Me.), 105 Atl. 402.
Question for Jury. — Ordinarily the weight and suffi-
ciency of all evidence tending to show a violation of the
law, or to rebut the evidence tending to show such violation,
is for the jury. For example, in a prosecution for maintain-
ing a nuisance within the purview of the liquor laws, whether
or not the accused kept intoxicating liquor in his hotel for
purpose of sale in violation of law, or whether he actually
sold the same, is to be determined by the jury.
State v. Jarvis (la.), 165 N. W. 61.
In a prosecution for violating the liquor laws the jury is
not bound to accept as true the testimony of accused or that
of the witnesses in his behalf, but may consider all the facts
and circumstances of the case and return a verdict of guilty
if justified by such facts and circumstances, though contrary
to the direct evidence.
Begley v. Commonwealth, 176 Ky. 796, 197 S. W. 448.
In a prosecution for violation of the law prohibiting the
sale of intoxicating liquors, the credibility of the state's wit-
ness was a question for the jury, and where he testified to
the sale, it cannot be said that there was no substantial evi-
dence to support the verdict.
Nelson v. State (Ark.), 212 S. W. 93.
In a prosecution for violation of the law against selling
intoxicating liquors, where defendant was introduced as a
witness and denied that he sold whisky and contradicted
—23
354 TITLE II— SEC. 33 OF ACT
state's witnesses, it was for the jury to determine whether
or not defendant was beyond a reasonable doubt guilty of the
offense charged.
Nelson v. State (Ark.), 212 S. W. 93.
Credibility of Testimony of Detective. — In prosecu-
tion for illegal sale of liquor, credibility of testimony of
detectives employed to discover violations is for the jury.
Baumgartner v. State (Ariz.), 178 Pac. 30.
In prosecution for maintaining liquor nuisance, credi-
bility of police officers as witnesses, who had purchased the
whisky and made the arrest, was for the jury.
State v. Shelton (la.), 169 N. W. 351.
Existence of Guilty Knowledge or Intent. — It is gen-
erally held that the question of guilty knowledge or unlaw-
ful intent — e. g., whether the accused knew the liquor was
on his premises or not — is for the jury.
Jackson v. Gordon (Miss.), 80 So. 785.
State v. Cox, 91 Ore. 518, 179 Pac. 575.
Holt v. State (Ala. App.), 78 So. 315.
Cooper v. State, 19 Ariz. 486, 172 Pac. 276.
In prosecution of pressing shop proprietor for having
intoxicating liquor in his possession, the question of whether
the defendant proprietor was conscious of the possession
of the liquor which had been found in his shop was, under
the evidence, a question for the jury.
Jackson v. Gordon (Miss.), 80 So. 785.
Where evidence showed that defendant kept a rooming
house in which there were a large number of rooms let to
others who lived in them, whether liquor procured in raid
on defendant's place was in 'her possession was a jury ques-
tion.
Holt v. State (Ala. App.), 78 So. 315.
In a prosecution of a hotel porter for having in his
possession, while transporting to the hotel, baggage contain-
ing whisky, it was a question of fact for the jury to find from
the evidence beyond a reasonable doubt whether the defend-
ant knew or had reasonable ground to know or believe that
TITLE II— SEC. 33 OF ACT 355
the suitcase contained intoxicating liquor when taking it in-
to his possession. ,
State v. Cox, 91 Ore. 518, 179 Pac. 575.
ffl. Judicial Notice.
Of Intoxicating Character of Certain Liquors. — It is
a matter of common knowledge which the court will notice
judicially that alcohol is an intoxicant and that it is the in-
toxicating element of all intoxicating liquors.
McLean v. People (Colo.), 180 Pac. 676.
State v. Klein (la.), 174 N. W. 481.
The court also judicially notices the fact that whisky is
an intoxicating liquor and that the word so implies.
State v. Killeen (N. H.), 107 Atl. 601.
Coats v. State (Tex. Cr. App.), 215 S. W. 856.
Harwell v. State, 12 Ala. App. 265, 68 So. 500.
In a prosecution for the unlawful manufacturing of in-
toxicating liquors, where defendant admitted that he made
whisky, further proof was not required to show that the
whisky was intoxicating.
Coats v. State (Tex. Cr. App.), 215 S. W. 856.
It is a matter of common knowledge to all well-informed
men that Jamaica ginger is an "intoxicating liquor."
McLean v. People (Colo.), 180 Pac. 676.
State v. Agalos (N. H.), 107 Atl. 314.
State v. Intoxicating Liquors and Vessels (Me.), 106
Atl. 771.
And the court will take judicial notice that grape wine is
an intoxicating liquor.
Frey v. Commonwealth, 169 Ky. 528, 184 S. W. 896.
But the court cannot take judicial notice that mead or
metheglin is an alcoholic, spirituous, vinous, malt, or intoxi-
cating liquor or beverage, or that, if drunk to excess, it will
produce intoxication.
Marks v. State, 159 Ala. 71, 48 So. 864, 133 Am. St.
Rep. 20.
356 TITLE II— SEC. 33 OF ACT
Judicial Notice of Ordinance. — Where the prohibition
ordinance of a city, which defendant is charged with violat-
ing, is not introduced in evidence, nor proof with reference
thereto offered, a judgment of conviction will be reversed,
and the cause remanded. Courts do not take judicial notice
of ordinances of cities or towns, and proof of the prohibi-
tion ordinances of a city is essential in prosecutions for the
violation thereof.
Benjamin v. Montgomery (Ala. App.), 81 So. 145.
Of Prohibition Territory. — The appellate court will take
judicial notice that a certain county in the state was prohibi-
tion territory during certain years, and that no business con-
cern could have been engaged legally in buying and selling
whisky and beer therein during those years.
Gumming v. Funkenstein Co. (Ala. App.), 81 So. 343.
IV. Proof of Time.
Not Ordinarily of Essence. — Under an indictment
charging the illegal sale of liquor, or the keeping of liquor
for the purpose of illegal sale, time is not ordinarily of the
essence of the offense, and the evidence need not show a
sale on the precise date laid in the indictment.
State v. Mostella, 159 N. C. 459, 74 S. E. 578.
State v. Truba, 88 Vt. 557, 93 Atl. 293.
Peebles v. State, 105 Miss. 834, 63 So. 271.
Thus where it was charged that the offense was committed
on Saturday, February 7th, evidence that it was on a Fri-
day between the 1st and 15th of February was held to have
been properly admitted.
State v. McGuire, 139 La. 88, 71 So. 239.
So it was permissible to ask a witness whether he bought
whisky or beer from the accused, or from anyone else in the
hotel operated by the accused, ''within the last few weeks."
Allison v. State, 1 Ala. App. 206, 55 So. 453.
Evidence of receipt of shipment of whisky by defendant
within three years of the filing of the indictment for engag-
ing in the business of selling liquors in prohibition territory
TITLE II— SEC. 33 OF ACT 357
is not too remote, the offense though laid on or about a cer-
tain day covering the whole of that period.
Jackson v. State (Tex. Cr. App.), 200 S. W. 150.
"The offense of being a common seller of intoxicating liq-
uors may be established by the acts of the party done on a
single day. (Commonwealth v. Gardner, 7 Gray [Miss.]
494, 497.) And where the offense is alleged to have been
committed on a particular day, 'and continually thereafter
up to the day of the finding of this indictment,' such alle-
gations may be supported by proof of the commission of the
offense on the particular day named, or during any part of
the period covered by the continuando. ( State v. Small, 80
Me. 452, 14 Atl. 942; Commonwealth v. Wood, 4 Gray
[Mass.] 11.)"
State v. Jones, 115 Me. 200, 98 Atl. 659.
Upon the preliminary examination of a person charged
with the offense of keeping and maintaining a common nui-
sance, the prosecution is not restricted in its proof to the
date alleged in the criminal complaint, but may introduce
evidence tending to show the commission of the offense
charged at any time prior to the date of such preliminary ex-
amination and within the period of limitations.
State v. Webb, 36 N. D. 235, 162 N. W. 358.
In a prosecution for the sale of liquor to soldiers in uni-
form, where the government's evidence showed a sale on a
date other than that laid in the indictment, it was proper to
submit to the jury the question whether a sale occurred on
the date testified to or on some other day; the jury consid-
ering the testimony as to the date on question of the wit-
nesses' credibility.
Young v. United States, 162 C. C. A. 133, 249 Fed. 935,
936.
Where, under an indictment for the sale of liquor, a bill
of particulars alleged a sale on January 20th, testimony of
the prosecuting witness that he could not remember the ex-
act date, but that it took place after January 1st, at which
time the town became dry, and before the finding of the in-
dictment is not a variance from the bill of particulars.
State v. Doucet, 136 La. 180, 66 So. 772.
358 TITLE II— SEC. 33 OF ACT
Specifically Alleged Sales. — Where an indictment al-
leges the making of a sale to each of two named persons
within three years next preceding its filing, a charge that,
though one of the sales alleged is not proven, defendant may
be convicted if he made two other sales within said three
years' period, is erroneous, since the making of the sales
must be proven as alleged in the indictment.
Robinson v. State, 81 Tex. Cr. App. 448, 1% S. W. 186.
Where the charge is the false labeling of a shipment as
being "for medical purposes" the offense may be shown to
have been any time within twelve months preceding the date
laid; but the state cannot, after having attempted to prove
the offense on a date different to that laid in the indictment,
insist upon the date alleged and then rely upon the other evi-
dence as showing intent and guilty knowledge.
Commonwealth v. Robinson-Pettet Co., 181 Ky. 702,
205 S. W. 774.
Sales before Defendant Owned the Premises. — Tes-
timony that witness bought whisky from an alleged em-
ployee of the accused in a certain house in January, 1910,
which was long before its occupancy by the accused, and
long before the alleged employee had any connection with
accused as his servant, employee or agent, is irrelevant, there
being no offer by further evidence to connect the accused
with the building or with said alleged employee in January,
1910.
Hughes v. State, 61 Fla. 32, 55 So. 463.
Where Statute Limits Time. — Of course where the
statute limits the proof of the unlawful sale to a period with-
in twelve months of the date specified in the indictment such
requirement is controlling, and the evidence must be limited
to a sale or sales within that period, though not to the exact
date laid in the indictment.
Harrison v. State, 12 Ala. App. 284, 68 So. 532.
Curry v. State, 117 Md. 587, 83 Atl. 1030.
State v. Francis, 157 N. C. 612, 72 S. E. 1041.
Under an indictment for having possession of intoxicating
liquors, the state may prove such possession at any time
TITLE II— SEC. 33 OF ACT 359
prior to finding of indictment and subsequent to the date of
approval of act, under which defendant was indicted, though
when the act is two years old the possession within two
years immediately prior to return of indictment must be
proved.
Autrey v. State (Ga. App.), 99 S. E. 389.
Proof of Sale after Date Laid. — Under a statute pro-
viding that, in a prosecution for unlawfully selling liquors,
the state may show any sale within two years before the day
laid in the indictment or affidavit, it is error to admit proof
of sale after that day, though before the indictment was re-
turned.
Moses v. State, 100 Miss. 346, 56 So. 457.
Where indictments charged sales of whisky on October
15th and on June 23d following, respectively, and the ex-
tent of a variance in the proof as to the date alleged in the
first indictment was not disclosed, and the record did not
show whether the indictments were found at the same or at
different terms of court, accused, complaining of a convic-
tion under the first indictment, had the burden of showing
that the variance was prejudicial to him.
State v. Kelly, 89 S. C. 303, 71 S. E. 987.
Different Sales on Same Day. — Where a warrant was
issued for the sale of intoxicating liquor on the morning of
a certain day, and before it was served accused on the same
day made a second unlawful sale, whereupon the warrant
was served and he was arrested, the accused might be tried
under the warrant for the later offense, since it charged a
sale on that day and was notice of all sales on that day.
Robinson v. Commonwealth, 118 Va. 785, 87 S. E. 553.
V. Variance.
Variance as to Mode of Sale.— The variance between
an allegation that the liquor was sold out of the pocket of
the accused and the proof upon the trial to the effect that
the accused purchased the liquor from a towel held under
her arm, was immaterial, in a prosecution under a city or-
360 TITLE; II— SEC. 33 OF ACT
dinance directed against the unlawful possession upon the
person of intoxicating liquor for the purpose of sale.
Collins v. Milledgeville, 17 Ga. App. 817, 88 S. E. 716.
Where an indictment alleged the sale of one quart of al-
coholic liquor under a statute prohibiting sale of any alco-
holic liquor, it was immaterial that the proof showed a sale
of two half-pint bottles of whisky.
Strozier v. State, 127 Ark. 543, 192 S. W. 884.
Proof of Either Gift or Sale. — An indictment alleging
that accused sold, offered for sale, kept for sale, or other-
wise disposed of intoxicating liquor contrary to law, can be
supported by proof of either a gift or a sale of liquor.
Roden v. State, 3 Ala. App. 199, 58 So. 72.
Proof of Sale to Other than Person Named in In-
dictment.— Where the indictment charges a sale to a cer-
tain designated person, proof of sale to some other person
will not support a conviction.
McElwee v. State, 73 Tex. Cr. App. 445, 165 S. W. 927.
Amonett v. State (Tex. Cr. App.), 204 S. W. 438.
State v. Julius, 29 S. D. 638, 137 N. W. 590.
Thus proof that S. approached defendant and asked him
if he knew where he (S.) could get a quart of whisky, and
that defendant replied that he thought he did, whereupon S.
gave defendant $1.50, and told him to deliver the whisky to
S.'s son, which he subsequently did, showed a sale of whisky
to S., and was therefore insufficient to support an indictment
charging a sale to the son.
McElwee v. State, 73 Tex. Cr. App. 445, 165 S. W. 927.
And under an information charging an illegal sale of in-
toxicating liquors to several persons jointly, defendant can
not be convicted of an illegal sale to one only of the persons
named.
State v. Julius, 29 S. D. 638, 137 N. W. 590.
But it has been held that where a count of an information
charged a sale of intoxicating liquors to three persons
named therein, and the proof established a sale to one of
TITLE II— SEC. 33 OF ACT 361
such persons, there was no fatal variance; since the essen-
tial element of the offense was the sale.
Ray v. State (Del.), 100 Atl. 472.
And in a prosecution for pursuing the business of selling
intoxicating liquors, proof of a sale to a purchaser not named
in the indictment, while not sufficient to support a conviction,
was admissible as tending to show that defendant was pur-
suing such business.
Amonett v. State (Tex. Cr. App.), 204 S. W. 438.
Evidence That Portion of Money Furnished by a
Third Person. — While it is true that where the sale of in-
toxicating liquor is alleged to have been made to an in-
dividual, the proof must correspond in this respect with the
allegation, nevertheless evidence that another person fur-
nished part of the money with which the liquor was paid for,
did not create any variance between the allegation and the
proof for the reason that the jury were authorized to infer
that if any money was furnished by a person other than the
alleged buyer, it might have been a loan of money, and for
the further reason that there was no evidence tending to
show that the seller had any knowledge of the participation
of any other person than the participant in the actual pur-
chase.
\Yilburn v. State, 8 Ga. App. 28, 68 S. E. 460.
Variance as to Person to Whom Liquor Illegally
Transported Was Delivered. — In a prosecution for trans-
porting liquor into the state and delivering it to another,
proof to show that the liquor was transported by one de-
fendant into the state for delivery to another defendant, and
was delivered to him for such purposes, was a variance from
the allegations of the indictment charging a delivery to some
person other than the three persons named in the indictment.
Winfrey v. State, 133 Ark. 357, 202 S. W. 23.
Under such statutes the evidence as to the quantity de-
livered and the consignee must correspond to the indictment.
Adams Exp. Co. v. Commonwealth, 178 Ky. 59, 198 S.
W. 556.
362 TITLE II— SEC. 33 OF ACT
Variance as to Person for Whom Liquor Illegally
Kept. — Under a complaint charging keeping intoxicating
liquors for persons specifically named, defendant could not
be convicted of keeping liquor for his son who was not
named.
State v. McCowen (Mo. App.), 189 S. W. 618.
Proof of Place of Sale. — Where an indictment alleged
the sale of liquor between certain buildings in a town, though
the allegation was needlessly specific, the evidence of the of-
fense should be confined to the limits alleged in the indict-
ment.
Ragan v. State, 9 Ga. App. 871, 72 S. E. 441.
Variance between indictment for transporting liquor into
a prohibition state, charging transportation to a certain point
therein, and proof that defendant's journey ended two or
three miles short of that point, he being arrested in his
journey, was immaterial.
Bishops. United States (C. C. A.), 259 Fed. 195.
Proof of Different Sale or Other Offense.— Where a
statute creates and provides the punishment for the two sev-
eral offenses of transporting liquor illegally and of having
them in separate containers, a conviction cannot be had un-
der a charge of the first offense on proof of the second.
State v. Little, 171 N. C. 805, 88 S. E. 723.
Under an indictment charging an unlawful sale of intoxi-
cants, accused cannot be convicted of the offense of procur-
ing liquor for another.
Woods v. State, 114 Ark. 391. 170 S. W. 79.
One charged with unlawfully selling intoxicating liquors
to a person named cannot be convicted of violating Revisal
1908, § 3534, punishing unlawful sales through agents, or of
violating section 3527a, punishing soliciting of orders for in-
toxicating liquors, or under the federal Penal Code (Act
March 4, 1909, c. 321. 35 Stat. 1088 [U. S. Comp. St. Supp.
1911, p. 1588]).
State v. Cardwell, 166 N. C. 309, 81 S. E. 628.
TITLE II— SEC. 33 OF ACT 363
But notwithstanding charge is for manufacture of spirit-
uous liquors, a conviction for aiding and abetting can be had.
State v. Ogleston (N. C.), 98 S. E. 537.
Nor is the state limited to the proof of only one sale under
an indictment in three counts, each charging a sale of the
prohibited liquor.
Harwell v. State, 11 Ala. App. 188, 65 So. 702.
And where the prosecution is for taking orders for the
sale of intoxicants in nonlicence territory, the state need not
limit its proof to any particular order, but may show any
and all orders taken within a year prior to the date of the
prosecution.
Sanders v. State, 115 Ark. 376, 171 S. W. 142.
Variance in Proof of Character or Description of Liquors.
"Spirituous Liquors."— Proof that accused made a sale
of spirituous liquors does not constitute a variance from the
affidavit charging a sale of spirituous, vinous, and malt liq-
uors.
Rash v. State, 13 Ala. App. 262, 69 So. 239.
"Liquor" — "Whisky." — In a prosecution for illegal sale
of whisky, a way bill showing a shipment of liquor to de-
fendant is immaterial, where it cannot be shown to be
whisky.
State v. Ryan, 1 Boyce's (24 Del.) 23, 75 Atl. 869.
"Bourbon" — "Rye."— Where the owner of pool hall
was accused of selling Bourbon whisky illegally, the fact
that a keg of rye whisky was found in the basement of his
pool hall was admissible in evidence and proper for consid-
eration of the jury.
Baumgartner v. State (Ariz.), 178 Pac. 30.
"Corn Liquor." — Evidence that prosecuting witness pur-
chased corn liquor from accused was sufficient to sustain a
conviction under an indictment charging the unlawful sale
of whisky, brandy, gin, beer, malt liquors, and mixtures
thereof.
Mullins v. Commonwealth, 115 Va. 945, 79 S. E. 324.
364 TITLE II— SEC. 33 OF ACT
"Alcohol"— "Ethyl Alcohol."— In a prosecution for the
illegal sale of intoxicating liquors, designated in the indict-
ment as "ethyl alcohol," as "alcohol" and "ethyl alcohol" are
practically synonymous, there is no merit in the contention
that in disclosing merely a sale of alcohol there was a fail-
ure of proof, and that the court erred in instructing the
jury that "ethyl alcohol" is, as a matter of law, intoxicat-
ing liquor.
State v. Newlin (Ore.), 165 Pac. 225.
"Whisky" — "Gin." — "There was evidence from which
the jury could infer that the intoxicating liquor sold was
'whisky,' as charged in the accusation, and not 'gin,' as con-
tended by the plaintiff in error. The testimony of various
witnesses for the state referred to the liquor sold as 'whisky/
and one witness said, 'it was gin whisky ;' and, notwithstand-
ing other testimony to the effect that the liquor was gin, there
was no such variance between the proof submitted and the
allegations in the accusation as to require the grant of a
new trial."
Anderson v. State, 20 Ga. App. 747, 93 S. E. 237.
"Intoxicating Liquor" — "Beer." — In a prosecution
for keeping intoxicating liquor with intent to sell, there
was evidence that when the respondent's premises were
searched large quantities of beer, whisky, and porter were
found. The respondent objected to the evidence as to the
beer, claiming the word used alone should not be understood
as an intoxicating liquor. But whether or not beer was an
intoxicating liquor, the evidence was proper, as evidence of
finding a large quantity of beer, alone with whisky and
porter, had a tendency to show the respondent's intention to
sell these liquors, and that they were not kept for his own.
State v. Barr, 84 Vt. 38, 77 Atl. 914, 48 L. R. A., N. S.,
302 N.
"Bevo" and "Temperance Malt." — Proof of sale of
"Bevo" and "Temperance Malt," if proven to be drinks of
like nature to spirituous liquors, wines, porter, ale and beer,
and to be intoxicating in the common acceptation of that
word, may be given in evidence under an indictment charg-
ing defendant in the language of the statute, with the un-
TITLE II— SEC. 33 OF ACT 365
lawful sale, offer and exposure for sale of spirituous liquors,
wines, porter, ale and beer, and drinks of like nature ; and a
count charging such drinks to be intoxicating is unnecessary.
State v. Henry, 74 W. Va. 72, 81 S. E. 569.
Self -Serving Declarations.
Inquiry by Defendant as to Obtaining Liquor. — An
inquiry made by defendant of a third person as to whether
he knew where liquor could be had is a self-serving declara-
tion and is incompetent on the part of the defendant in a
prosecution for sale of intoxicating liquor.
Dean v. State, 130 Ark. 322, 197 S. W. 684.
Refusal to Sell to Other Persons. — In a prosecution
for the sale of intoxicating liquors without a license evidence
that accused had refused to sell liquor to a particular in-
dividual is not admissible.
State v. Zagone, 135 La. 550, 65 So. 737.
State v. Fountain (la.), 168 N. W. 285.
Thus where the defendant offered to show by a witness
that on the same day he was charged with selling whisky to
the state's witness he declined to sell a bottle to him, there
was no error in rejecting this testimony. It was not in con-
flict with the evidence for the state. Proof of a sale of
whisky to one person is not rebutted by proof of refusal to
sell to another. There might be many reasons why the de-
fendant refused to sell to one, while selling to another.
Donaldson v. State, 3 Ga. App. 451, 60 S. E. 115.
Sale by Defendant's Firm, Partner, Agent, Em-
ployee, etc. — In support of an indictment charging an ac-
cused with having illegally sold intoxicating liquors, it was
competent for the state to show that the sale was made by
a commercial firm of which the accused was a member and
with his consent.
State v. Rollings worth, 134 La. 554, 64 So. 409.
Such a sale, whether made by the principal, or by his
clerk, is all that is necessary to be proved to make out the
offense, provided the sale made by the clerk is made in the
366 TITLE II— SEC. 33 OF ACT
conduct of the business with which he is charged by the prin-
cipal.
O'Donnell v. Commonwealth, 108 Va. 882, 62 S. E. 373.
Where in a prosecution for wrongful sale of intoxicating
liquors without a license, the state showed that defendant
was proprietor of a restaurant, the back of which was cur-
tained off to form a private room and opened into another
room, where quantities of intoxicating liquors, beer, and
whisky were kept on ice ready to serve, evidence of sales
made to customers in such back room by a negro, though not
in defendant's presence, was admissible against him.
Carson v. State, 3 Ala. App. 206, 58 So. 88.
But it was error for the court to permit a witness, over
proper objection, to testify that he bought whisky from a
person other than the defendant, that lived on the same
premises with the defendant, when the witness testified that
he had never bought any whisky from the defendant, and
that the defendant was not present and had no connection
with the sale.
Holmes v. State, 12 Ga. App. 359, 77 S. E. 187.
Windom v. State, 19 Ga. App. 452, 91 S. E. 911.
And it was also error on trial of a defendant for selling liq-
uor to a member of the military forces in uniform, to exclude
testimony of defendant, who did not personally take the or-
der, that he was told by the person who took the order that
the liquor was ordered by, and was for, a woman, to whom
he charged it.
Fetters v. United States (C. C. A.), 260 Fed. 142.
Acts of Confederates, Co- Conspirators, etc. — In pros-
ecution for violation of the prohibition laws, after evidence
had been introduced tending to show that defendant and an-
other were confederates, illegally operating a still, testimony
by a witness that defendant's confederate went with him to
get a jug of whisky near the still is admissible as independ-
ent evidence, not in the nature of a confession, tending to
prove the corpus delicti.
Walker v. State (Ala. App.), 81 So. 179.
TITLE II— SEC. 33 OF ACT 367
No Profit as Evidence of No Sale.— In a prosecution
for selling intoxicating liquors in prohibition territory, it is
no defense that the seller made no money, or that the liquor
did not belong to him ; therefore evidence as to whether de-
fendant got anything out of the sale was properly excluded.
Bird v. State (Tex. Cr. App.), 206 S. W. 844.
To Show Character of Sale, as Interstate, etc.—
Where the defendant claimed that he acted only as agent for
a foreign firm, and that the sale was an interstate transac-
tion, evidence that defendant collected empty beer cases, con-
taining beer when delivered, on orders taken by him, was
relevant to show defendant's method of business.
State v. Gross, 76 N. H. 304, 82 Atl. 533.
Evidence to Show Time and Place.— On a trial for
selling whisky in prohibition territory, the time and place
where the prosecuting witness claimed to have bought the
whisky from accused were directly in issue and properly
shown.
Engman v. State, 77 Tex. Cr. App. 595, 179 S. W. 569.
And where a witness testified to a purchase of whisky
from accused at a day subsequent to the indictment, a ques-
tion asked him, whether he remembered being before the
grand jury and whether he did not buy the whisky before
that time and before the indictment was found, was neither
incompetent, immaterial, nor irrelevant.
Shaneyfelt v. State, 8 Ala. App. 370, 62 So. 331.
Where the state's witness did not definitely locate the
date of the alleged sale, and testified that he only obtained
whisky from defendant once, the court should have per-
mitted defendant to introduce witnesses to substantiate his
own testimony that the sale occurred in another county.
Mosley v. State, 107 Miss. 158, 65 So. 124.
Witness Receiving Money to Buy Liquor and Re-
turning with Liquor. — In a prosecution for violating the
prohibition law, testimony of a police officer that he gave a
person $1 to see if he could buy some whisky, and that he
went and returned with a bottle of whisky and another
368 TITLE II— SEC. 33 OF ACT
bottle half full, was admissible in connection with testimony
of the person referred to as to having delivered the whisky.
Grusin v. State, 10 Ga. App. 149, 75 S. E. 350.
Witness May Testify Where He Got Liquor. — Where
defendant was accused of furnishing witness liquor to be
sold for their mutual benefit, it was proper to ask witness
where he got the liquor; such testimony being relevant and
material under the charge.
Quinn v. State, 15 Ala. App. 635, 74 So. 743.
VI. Admissibility, Relevancy and Competency.
1. RELEVANCY MUST APPEAR.
Perhaps in no other class of cases is so much rambling,
disconnected, irrelevant testimony sought to be introduced
as in prosecutions under prohibitory laws. From a study
of the cases it would seem that lawyers generally are un-
der the impression that some peculiar rule as to relevancy
and competency obtains in prosecutions of this character.
It is hardly necessary to state that in the absence of statute
creating some peculiar or different rule, the principles re-
lating to relevancy and competency are the same in this
class of cases as elsewhere.
Pine v. Commonwealth, 121 Va. 812, 93 S. E. 652.
State v. Walters, 178 la. 1108, 160 N. W. 821, 822.
Henley v. State, 3 Ala. App. 215, 58 So. 96.
Bird v. State (Tex. Cr. App.), 206 S. W. 844.
Sapp v. State, 2 Ala. App. 190, 56 So. 45.
Loudermilk v. State, 4 Ala. App. 167, 58 So. 180.
In a prosecution for violation of the prohibition law,
where two witnesses had testified to buying liquor from a
third person, testimony of such third person that the wit-
nesses had broken into his house and stolen the liquor was
properly excluded as irrelevant.
Pine v. Commonwealth, 121 Va. 812, 93 S. E. 652, 653.
In a prosecution for unlawfully selling liquor, where the
prosecuting witness testified that he drank no beer in the
house of defendant, that he took it away, and that neither
he nor his daughter drank it, the exclusion of evidence as
TITLE II— SEC. 33 OP ACT 369
to who did drink the beer, on the ground that it was irrele-
vant and immaterial, was not error.
State v. Walters, 178 la. 1108, 160 N. W. 821, 822.
In a prosecution for violation of the law prohibiting the
sale of intoxicating liquors in prohibition territory, evi-
dence as to the number of defendant's family held immate-
rial.
Bird v. State (Tex. Cr. App.), 206 S. W. 844.
A grocer on trial for maintaining a liquor nuisance is
not entitled to show the amount of his weekly sales in the
grocery business. Such evidence has no probative force in
support of his innocence.
State v. Fortin, 106 Me. 382, 76 Atl. 896, 21 Ann. Cas.
454.
In a trial for violating the prohibition laws, accused was
not entitled to show on cross-examination of two of the
state's witnesses that a man could drink a dozen and a half
or two dozen bottles of beer in a day, in explanation of the
quantity of beer found in accused's room ; he having given
uncontradicted testimony as to how much he could drink.
Loudermilk v. State, 4 Ala. App. 167, 58 So. 180.
In a prosecution for a violation of the prohibition law,
permitting a state's witness to answer, over objection,
whether he know of any whisky being carried between two
towns prior to a certain date, was prejudicially erroneous,
where it was not shown that the whisky alleged to have
been sold by plaintiff was any part of that which was the
subject of the inquiry or that the defendant had a knowl-
edge of or agency in its carriage.
Henley v. State, 3 Ala. App. 215, 58 So. 96.
In a trial for violating the prohibitory law, evidence as to
how many other warrants were issued as a result of a visit
by the state's witness to a certain place on a particular oc-
casion and at how many other places he purchased whisky,
was properly excluded.
Sapp v. State, 2 Ala. App. 190, 56 So. 45.
—24
370 TITLE II— SEC. 33 OF ACT
Second Conviction. — In trial for second violation of
the prohibitory liquor law, it is error to admit proof of a
prior conviction when judgment of such conviction has been
appealed and execution of such judgment has been legally
suspended and appeal is undetermined.
McAlester v. State (Okla. Cr. App.), 180 Pac. 718.
In trial for second violation of prohibitory liquor law,
where the only evidence of the former violation charged
was a conviction from which an appeal was taken, the judg-
ment and conviction suspended, and the appeal undeter-
mined, it was insufficient to sustain a conviction.
McAlester v. State (Okla. Cr. App.), 180 Pac. 718.
In prosecution for second violation of prohibitory liquor
laws, where record evidence of former conviction of one of
similar name as defendant is offered, it is not necessary for
state to prove that person named in such former conviction,
and defendant on trial is one and the same person.
Files v. State (Okla. Cr. App.), 182 Pac. 911.
2. STATUTORY REGULATION.
The provision of the Fuller Act (Act Sp. Sess. 1909, p.
90, § 29^2 regulating the admissibility of evidence under an
indictment for violation of the prohibition law, was not af-
fected by subsequent legislation regulating the liquor traffic.
Spigener v. State, 11 Ala. App. 296, 66 So. 896.
3i OFFENSES CHARGED IN ALTERNATIVE.
Where one count in an indictment charges the defendant
with selling intoxicating liquor to a person named and an-
other count charges him with keeping such liquor on hand at
his place of business, evidence tending to establish his guilt
under one count may be considered by the jury, though en-
tirely irrelevant to the other count.
Reddick v. State, 15 Ga. App. 437, 83 S. E. 675.
And where the indictment charges in one count a sale and
in another that the accused sold, offered for sale, or other-
wise disposed of intoxicants, evidence of both offenses was
admissible.
Thames v. State, 10 Ala. App. 210, 64 So. 648.
TITLE II— SEC. 33 OF ACT 371
In prosecution for violation of prohibition law, where
the affidavit charged that defendant ''sold, offered for sale,
kept for sale, or otherwise disposed of spirituous, vinous, or
malt liquors," and the state had proved sale was made, it was
not error to permit evidence of defendant's possession of
whisky at a different time and place, the sale and possession
being charged in the alternative, though the state could be
compelled to elect upon which charge it would rely.
Howze v. State (Ala. App.), 75 So. 624.
4. RES GESTAE.
In cases of this character proof of defendant's having
prohibited liquor, ordering it, and all similar facts and
acts at or about the time of the transaction in question, are
admissible in evidence for the purpose of throwing light on
the transaction and to show the identity of the defendant as
the guilty party, and to connect him with the commission of
the offense.
Mclntosh v. State, 140 Ala. 137, 37 So. 223.
Untreinor v. State, 146 Ala. 133, 41 So. 170.
Guarreno v. State, 148 Ala. 637, 42 So. 833.
Scott v. State, 150 Ala. 59, 43 So. 181.
Sadler v. State, 165 Ala. 109, 51 So. 564.
Smith v. State, 2 Ala. App. 216, 56 So. 39.
Where, in a prosecution for selling fermented cider in
violation of the local option law. defendant denied that the
cider was fermented and claimed that its intoxicating qual-
ities were due to whisky being mixed with it subsequent to
the sale, evidence that the parties who bought the cider had
whisky in their possession was admissible as part of the res
gestce in support of defendant's claim.
People v. Emmons, 178 Mich. 126, 144 N. W. 479, Ann.
Cas. 191 5D, 425.
\Yhere the witness went twice to defendant before getting
the liquor, a statement of defendant the first time that the
whisky would be $1.25 a pint was admissible as part of the
res gesta-.
Berry v. State (Tex. Cr. App.), 203 S. \Y. 901.
372 TITLE II— SEC. 33 OF ACT
5. CIRCUMSTANTIAL EVIDENCE.
Circumstantial evidence is admissible to prove offenses
against the liquor laws as in other cases, and the connection
of the accused with an illegal sale of intoxicants may be es-
tablished by circumstances as well as by direct proof.
Gales v. State, 14 Ga. App. 450, 81 S. E. 364.
Kerney v. State, 21 Ga. App. 500, 94 S. E. 625.
Thus where there was direct evidence of a sale of intoxi-
cating liquors, which would have authorized the conviction
of the accused, it was not error to admit proof of circum-
stances which apparently indicated that the sale of intoxicat-
ing liquors was being conducted in a house under the control
of the defendant and occupied by him as a residence, al-
though there was no direct evidence of his presence at the
house at the time that unusual quantities of liquor were be-
ing taken therefrom.
Gales v. State, 14 Ga. App. 450, 81 S. E. 364.
The court did not err in admitting in evidence a certain
envelope the defendant had given to the witness, bearing the
address of the concern from which the whisky was shown
to have been ordered by the defendant in the witness" name.
Kerney v. State, 21 Ga. App. 500, 94 S. E. 625.
Neither did the court err in admitting in evidence a piece
of pasteboard, torn from a carton found in the defendant's
residence, by a witness, bearing the name of the person in
whose name the defendant was charged with having ordered
the whisky.
Kerney v. State, 21 Ga. App. 500, 94 S. E. 625.
Testimony as to the existence of a push button in a store,
to which was attached a wire leading to the room of the de-
fendant in the same building, was relevant, in view of testi-
mony that people were seen "going in and out of that store
appearing to be drinking," as tending to sustain the theory
that considerable quantities of intoxicating liquors were
stored in this building in the room of the defendant and that
she was the custodian thereof, and therefore of the particular
intoxicants found in her room.
Littleton v. State, 20 Ga. App. 746. 93 S. E. 230.
TITLE II— SEC. 33 OF ACT 373
6. CONFESSIONS AND ADMISSIONS.
Permitting a witness in a prosecution for a violation of
the prohibition law to testify as to a confession of the de-
fendant was proper, after the court had determined that its
predicate was proper.
Henley v. State, 3 Ala. App. 215, 58 So. 96.
If a defendant accused of violating the prohibition laws
by selling liquor to a certain person stands mute while the
charge is being made in his presence and hearing that "he
sold the whisky" to that person, it is an inculpatory admis-
sion in the nature of a confession directly relating to the facts
and circumstances of the crime and was therefore prima
facie involuntary and inadmissible.
Braxton v. State (Ala. App.), 82 So. 657.
A note found on top of 4^ cases of beer found in defend-
ant's room, reading as follows: "Frank: Please put this
beer in the lounge and make Elvira burn the boxes and go
to sleep and don't talk. B." — is not admissible in evidence
where it is not shown that it was written by the defendant
or at his instance, or that he had anything to do with the
placing of the note there, other than evidence to the effect
that he had stolen the beer.
Edmunds v. State* (Ala. App.), 81 So. 847.
Communications between Husband and Wife. — In a
prosecution for unlawfully selling liquor, evidence of an of-
ficer that at the time of defendant's arrest at his home, his
wife stated in his presence that she had tried to keep him up
and he had continued bootlegging, and she was through, was
not inadmissible on the ground that a wife may not testify
against her husband since the rule of privilege does not cover
conversation between husband and wife being testified to by
a third person who overhears them.
State v. Randall, 170 N. C. 757, 87 S. E. 227, Ann. Cas.
1918A, 438.
7. INCRIMINATING QUESTIONS — PRIVILEGE.
In a prosecution for unlawfully selling intoxicating liquors,
an order of immunity entered by the circuit court against
374 TITLE II— SEC. 33 OF ACT
prosecution on account of any testimony given before the
grand jury in a separate investigation as to bribery of the
state's attorney did not protect defendant, notwithstanding
the offenses for which he was being prosecuted were those
the state's attorney had been bribed not to prosecute and of
which evidence had been given at the bribery investigation.
People v. Goldberg, 287 111. 238, 122 N. E. 530.
See also, under this same statute, People v. Argo, 237
111. 173, 86 N. E. 679.
A witness, in a prosecution for having in possession in-
toxicating liquors, who made no claim of privilege upon the
ground that his testimony might incriminate him or upon
any other ground, was not "compelled" to testify within the
meaning of Laws 1915, p. 9, § 13, providing that no person
shall be prosecuted or punished on account of any transac-
tion or matter or thing concerning which he shall be com-
pelled to testify in such a prosecution.
State v. Whalen (Wash.), 183 Pac. 130.
Where a witness, in a prosecution for being in unlawful
possession of intoxicating liquors, made no claim of privi-
lege upon the ground that his testimony might incriminate
him, sureties on his bail bond, he having been arrested by
reason of having given testimony that incriminated him, can-
not claim the privilege for him in a proceeding to forfeit
bail, although Laws 1915, p. 9, § 13, provide that no person
shall be prosecuted as to matter concerning which he is com-
pelled to testify in such a prosecution.
State v. Whalen (Wash.), 183 Pac. 130.
8. EVIDENCE AT FORMER TRIAL.
The court did not abuse its discretion, on the trial of a
charge of illegal selling, by excluding the testimony of an
absent witness given on a former trial before a justice of
the peace where the facts suggested a lack of diligence to
procure the attendance of such witness.
Hicks v. State (Ark.), 215 S. W. 685.
In a contempt proceeding for violation of a decree en-
joining the sale of liquor and the maintenance of a nuisance,
the defendant could not complain of the admission of testi-
TITLE II— SEC. 33 OF ACT 375
mony, which had formerly been taken and transcribed in the
criminal proceeding, where he had stipulated that the evi-
dence might be so used.
State v. Kurent (Kan.), 184 Pac. 721.
9. FORMER ACQUITTAL OR CONVICTION.
Where there was evidence of a sale to one of the alleged
purchasers, evidence that defendant had been acquitted of
the charge of such sale was admissible.
Amonett v. State (Tex. Cr. App.), 204 S. W. 438.
A sale for which defendant had been tried and convicted,
would constitute no violation of the law.
Amonett v. State (Tex. Cr. App.), 204 S. W. 438.
Rejection of testimony that the same liquors were in-
volved in a prior prosecution and acquittal, though such tes-
timony was competent, was not prejudicial, where a number
of other witnesses testified to the same effect as witness
would have done, if permitted.
Lemon i: Commonwealth, 171 Ky. 822, 188 S. W. 858.
But where there were two sales of the same whisky, one
by defendant to a stool pigeon, and one by the stool pigeon
to the officer who employed him, evidence that the stool
pigeon had been indicted for making the sale to the officer,
and convicted on his plea of guilty, was inadmissible; not be-
ing a relevant or material fact on the issues on trial.
Canales v. State (Tex. Cr. App.), 215 S. W. 964.
\Yhere, in a prosecution for taking orders for the sale of
intoxicants in nonlicense territory, the state's evidence cov-
ered all orders taken within a year prior to the date of the
prosecution, an acquittal was a bar to any subsequent prose-
cution based upon orders taken within that period.
Sanders v. State, 115 Ark. 376, 171 S. W. 142.
10. INDICTMENT OR CONVICTION FOR DIFFERENT OFFENSES.
It is error to require a defendant, charged with violating
the liquor law, to testify that he had been previously indicted
for a similar offense.
Shepherd v. State, 76 Tex. Cr. App. 307, 174 S. W. 609.
376 TITLE II— SEC. 33 OF ACT
Where General Reputation in Issue. — Where accused,
charged with selling whisky in a prohibition county, filed his
sworn plea for suspension of sentence, if convicted, he there-
by put his general reputation in issue, and the state could
show that he had been indicted for various offenses, includ-
ing unlawful sales of liquor in prohibition territory, and that
indictments other than the one under which he was being
tried, were pending against him.
Martoni v. State, 74 Tex. Cr. App. 90, 167 S. W. 349.
Second Conviction Carrying Heavier Penalty. — But
when a person under prosecution for a second offense carry-
ing a heavier penalty, is charged in the information under
one name, it is not error to admit evidence of a former con-
viction under a different name for the like offense, when
the proof is clear that the defendant is one and the same
person.
Wilkins v. State (Fla.), 78 So. 523.
In a prosecution under Initiative Measure No. 3 (Laws
1915, p. 6) § 8, providing that it shall be unlawful for a phy-
sician, after he has been convicted a second time of a vio-
lation of any of the provisions of the act, to thereafter write
any prescriptions for the furnishing, delivery, or sale of in-
toxicating liquor, it was not error to permit the state to show
that defendant had been three times convicted of violating
the prohibition law.
State v. Emonds (Wash.), 182 Pac. 584.
Conclusiveness of Record of Former Conviction. — In
prosecution for permitting liquor to be kept upon premises
for the purpose of sale or other disposition, where previous
conviction was charged, defendant was not entitled to go
behind the record of the former conviction and introduce
evidence to show that he was not guilty of the charge upon
which that conviction was based.
State v. Dereiko (Wash.), 182 Pac. 597.
11. SCIENTER AND INTENT.
When, by statute, an act is made an offense under the
liquor laws without regard to the intent with which it is done,
evidence on the subject of intent, is not material, and on trial
TITLE II— SEC. 33 OF ACT 377
of one charged with the violation of such statute there is
no error in rejecting such evidence.
State v. Ross, 70 W. Va. 549, 74 S. E. 670, 39 L R A
N. S., 814n.
Bacot v. State, 94 Miss. 225, 48 So. 228, 21 L. R A
N. S., 524n.
O'Donnell v. Commonwealth, 108 Va. 882, 62 S. E. 373.
Thus where aside from an exception in the case of pharma-
ceutical preparations, the law punished the fact of selling
intoxicants regardless of the intent of the seller; evidence
that the liquor was represented to accused to be nonintoxi-
cating and that he believed it to be so was inadmissible.
Bacot v. State, 94 Miss. 225, 48 So. 228, 21 L. R. A.,
N. S., 526n.
In such cases, proof of the sale as charged and the in-
toxicating character of the liquor is all that is required. In-
tent is conclusively presumed when the sale is proved.
Montgomery v. State, 11 Okla. Cr. App. 415, 142 Pac.
1048.
Good Faith as a (Mitigating Circumstance. — But while
intention, good faith, and want of knowledge that the liq-
uor sold was intoxicating are not defenses, such elements do
have a bearing on severity of punishment.
Nies v. District Court (la.), 161 N. W. 316.
How Intent, etc., Shown When Relevant. — In prose-
cutions for illicit dealing in intoxicating liquors, and crimes
committed for profit, it is competent to prove intent, where
the intent is material, by showing matters of like nature
before and after the offense, such crimes having been com-
mitted with deliberation, in defiance of law, and for the mo-
tive of making profit thereby.
State v. Simdns (N. C.), 100 S. E. 239.
Proof of previous acts of the same kind is admissible for
the purpose of proving defendant's guilty knowledge or in-
tent.
People v. Bullock, 173 Mich. 397, 139 N. W. 43.
378 TITLE II— SEC. 33 OF ACT
Thus in a prosecution for unlawfully transporting liquor
into a prohibition state by automobile, evidence of a prior
trip made by the same persons between the same places a
few days before, and connected with the one charged, held
admissible, being a part of the same scheme, and as show-
ing motive and intent.
Malcolm v. United States (C. C. A.), 256 Fed. 363.
See contra: Ford v. United States (C. C. A.), 259 Fed.
552.
In general, it is permissible to show any facts and circum-
stances legitimately bearing upon the question of intent or
guilty knowledge, as the arrangement and adaptation of the
premises to the illegal business, the acts of the accused at the
time of his arrest, etc.
Overton v. State, 11 Okla. Cr. App. 1, 140 Pac. 1135.
State v. Billingsley, 99 Wash. 445, 169 Pac. 845.
State v. Baldwin (N. C.), 100 S. E. 348.
State v. Simons (N. C.), 100 S. E. 239.
In prosecution for unlawfully keeping liquor at a drug
store, evidence that accused also had a warehouse with para-
phernalia for putting up whisky for sale and that large quan-
tities of whisky were found in the warehouse, is admissible
as showing the intent with which accused possessed liquors
at the drug store.
State v. Billingsley, 99 Wash. 445, 169 Pac. 845.
In Bondurant v. State, 14 Okla. Cr. App. 388, 171 Pac.
488, it was held that such testimony was admissible, where
one was charged with having possession of liquor with intent
to violate the provisions of the prohibitory liquor law, for
the purpose of showing the unlawful intent.
Balfe v. People (Colo.), 179 Pac. 137, 138.
In a prosecution for having intoxicating liquor in his
possession for the purpose of sale, the jury might consider
that, when officers were proceeding to take and carry off
the liquor which defendant had brought to his brother's
residence, the defendant, who had escaped, returned and
locked his car which the officers were about to use.
State v. Baldwin (N. C.), 100 S. E. 348.
TITLE II— SEC. 33 OF ACT 379
In prosecution for having possession of intoxicating liquor
for purpose of sale, where more than one gallon of liquor
was found in defendant's possession at time of arrest, creat-
ing presumption that liquor was for purpose of sale, under
Pub. Laws 1913, c. 44, § 2, evidence of defendant's denial
of possession, his attempt to shoot officer making arrest, and
his being found later making a still is competent in support
of the presumption.
State v. Simons (N. C.), 100 S. E. 239.
In prosecution for having possession of intoxicating liquor
for purpose of sale, evidence that, two months after such
liquor had been found in defendant's possession, defendant
had constructed a new still, and was working on another,
was competent.
State v. Simons (N. C.), 100 S. E. 239.
In determining the purpose for which accused sold Jamaica
ginger, the jury must consider all the evidence concerning
the facts and circumstances surrounding the sale, including
the amount sold and statements made by the purchaser, as
well as any actual knowledge the accused had.
State v. Hastings, 2 Boyce's (25 Del.) 482, 81 Atl. 403.
In a prosecution for violating the prohibition law by sell-
ing Jamaica ginger, evidence that he sold the liquor as medi-
cine in good faith was properly excluded, where defendant
had made no attempt to comply with the provisions of Const,
art. 22, or the statute regulating the handling of intoxicat-
ing liquor for medicinal purposes.
McLean v. People (Colo.), 180 Pac. 676.
The Carrying Away of Empty Barrels from Prem-
ises.— In a prosecution for having liquor with intent to sell,
evidence of a truckman that he carried away empty barrels
similar to those filled with liquor found in possession of
respondent held admissible to show intent.
State v. Barr, 84 Vt. 38, 77 Atl. 914, 48 L. R. A., N. S.,
302n.
Inquiries as to Character of Liquor, Legality of De-
livery, etc. — In a prosecution for the illegal sale of vinous
liquors, not for medicinal or sacramental purposes, under
380 TITLE II— SEC. 33 OF ACT
the local option statute (24 Del. Laws, c. 65) accused may
show in defense any effort made by him to ascertain whether
the sale of the liquor sold by him was vinous liquor pro-
hibited by law, and if he had reasonable grounds to believe
and in fact did believe that the liquor he sold was not vinous,
it would be a good defense ; the burden being upon him, how-
ever, to show clearly and satisfactorily that a reasonable and
careful man, anxious to obey the law, would have believed
under the circumstances that the liquor sold was not vinous,
and that accused did in fact entertain such belief (adopted by
a divided court.)
State v. Coverdale, 1 Boyce's (24 Del.) 555, 77 Atl. 754.
In a prosecution against defendant express company for
delivering whisky not for personal use, it was competent to
permit question to be asked of defendant's agent relative to
his inquiries about the propriety of delivering the whisky,
and what information he received. •
Adams Exp. Co. v. Commonwealth, 177 Ky. 159, 197
S. W. 630.
Expectation of Meeting Owner with Trucks to Re-
ceive the Liquor. — Testimony that the owner of whisky
was expected, by those taking it by boat from Missouri
down the Mississippi, to meet them at one of two points in
Tennessee, with two trucks on which to unload it, was evi-
dence that it was intended for transportation into Tennes-
see, for permanent stay there, in violation of Act March 3,
1917, § 5 (Comp. St. 1918, § 8739a).
Bishop v. United States (C. C. A.), 259 Fed. 159.
Statement of helper, in presence of owner of boat, and
not questioned by him, when officers came on board and
asked the destination of whisky thereon, that they expected
the owner of the whisky to meet them at one of two points
in Tennessee with two trucks on which to unload it, is ad-
missible against the boat owner, prosecuted for transporting
the whisky into Tennessee in violation of Act March 3, 1917,
§ 5 (Comp. St. 1918, § 8739a).
Bishop v. United States (C. C. A.), 259 Fed. 159.
II— SEC. 33 OF ACT 381
Parol Evidence as to Check Given in Payment. — In
a prosecution for introducing intoxicating liquor into that
part of Oklahoma which was formerly Indian Territory, in
violation of Act March 1, 1895, c. 145, where the connec-
tion of defendant with the purchase and shipment of the
liquor was clearly and indisputably shown, and it was proven
without contradiction that one of the defendants gave his
check on an Oklahoma bank in payment for the liquor, the
admission of oral testimony as to the amount of the check
and the bank on which it was drawn was harmless.
De Moss v. United States, 162 C. C. A. 259, 250 Fed. 87.
12. POSSESSION AS EVIDENCE.
Possession as Evidence of Unlawful Manufacture.—
In a prosecution of a defendant, charged with violation of
the law prohibiting manufacture of intoxicating liquors, as
accessory after the fact, evidence that defendant took
two bottles and a jug from under a public road culvert
shortly before the still was discovered, is admissible.
Higgins v. State (Ark.), 206 S. W. 440.
In a prosecution for manufacturing alcoholic liquors, tes-
timony by witnesses that a negro man had come out of de-
fendant's house shortly before she was arrested with "Choc"
beer, which was intoxicating, which he sold to witnesses,
was competent as tending to show that "Choc" beer was
made by some one in the house of defendant.
Patterson v. State (Ark.), 215 S. W. 629.
Possession as Evidence of Unlawful Possession or
Transportation. — On trial of a person charged with hav-
ing unlawful possession of intoxicating liquor with intent to
sell the same, the quantity and kind of liquor, the size and
number of packages, the occasion upon and circumstances
under which it is found, the conduct and demeanor of the
accused at the time and prior to the discovery, and any and
all other circumstances reasonably calculated to throw light
on the purpose and intent with which the liquor was pos-
sessed, are admissible in evidence, and are all entitled to
consideration by the jury in arriving at a verdict.
Overton v. State, 11 Okla. Cr. App. 1, 140 Pac. 1135.
Kirk v. State, 14 Ala. App. 44, 70 S. E. 990.
382 TITLE II— SEC. 33 OF ACT
Defendant's declaration with reference to the liquor found
and testimony tending to show concealment inconsistent
with keeping for personal use is admissible.
Kirk v. State, 14 Ala. App. 44, 70 S. E. 990.
In a prosecution for having liquor in possession with the
intent to sell the same, the quantity in possession is a circum-
stance which may be considered in determining the exist-
ence or absence of the intent to sell.
Coiiley v. State (Okla. Cr. App.), 179 Pac. 480, 483.
Billingsley v. State, 4 Okla. Cr. App. 597, 113 Pac. 241.
Watson v. State, 8 Ala. App. 414, 62 So. 997.
In a prosecution for keeping intoxicating liquors in a drug
store with intent to sell unlawfully, it is not error to admit
evidence as to quantity and kind kept on hand, notwithstand-
ing the druggist is the sole judge under the law of the kind
and quantity of intoxicating liquors the needs of his busi-
ness require, as it may be a material link in the chain of
circumstances tending to show his guilt.
State v. McCaskey, 97 Wash. 401, 166 Pac. 1163.
Evidence that a suit case, seized while in the possession
of defendant when arrested, and opened after a warrant
was issued charging him with violation of the law regulat-
ing the transportation of ardent spirits, contained liquor, is
admissible.
Lucchesi v. Commonwealth, 122 Va. 872, 94 S. E. 925.
In a prosecution for carrying around on defendant's per-
son and in a vehicle intoxicating liquors with intent to sell
and dispose of the same by gift or otherwise, that defendant
carried four gallons of liquor in a suit case was competent
on the question of intent.
State v. Butler (la.), 173 N. W. 239.
In prosecution for unlawful possession of intoxicating liq-
uor, where exhibits of bottles of liquor were offered in evi-
dence by state, which had been found and seized wrhen no-
body was in possession of premises, it was within trial court's
discretion to admit exhibits and to allow state to subse-
quently connect defendant with their possession.
High v. State (Okla. Cr. App.), 180 Pac. 572.
TITLE II— SEC. 33 OF ACT 383
Possession as Evidence of Unlawful Sale. — Proof of
the possession of whisky or other intoxicating liquor by the
accused at or about the time of the alleged sale is admissible.
Bishop v. State, 18 Ga. App. 714, 90 S. E. 369.
State v. Boynton, 155 N. C. 456, 71 S. E. 341.
Dean v. State, 130 Ark. 322, 197 S. W. 684.
Jackson r. State (Tex. Cr. App.), 200 S. \V. 150.
Mills v. State, 11 Ga. App. 383, 75 S. E. 266.
Harwell v. State, 12 Ala. App. 265, 68 So. 500.
Martoni v. State, 74 Tex, Cr. App. 90, 167 S. W. 349.
Wooten v. State, 17 Ga. App. 333, 86 S. E. 740.
Cooper v. Gadsden, 10 Ala. App. 609, 65 So. 715.
Holmes v. State, 12 Ga. App. 359, 77 S. E. 187.
Moore <v. State, 12 Ala. App. 243, 67 So. 789.
D'Amico v. State (Del.), 102 Atl. 78.
In general, the circumstances under which liquors are
kept and that they are kept at other places may be shown.
State v. Boynton, 155 N. C. 456, 71 S. E. 341.
Evidence that prior to the sale charged, defendant had
whisky in his possession at different places in the city and
that at the places under his control whisky was being sold
and drunk, and that persons who had been in his places of
business had seen whisky and beer therein, is admissible to
show that defendant had whisky on hand in prohibited ter-
ritory and was prepared to make the illegal sale charged by
the indictment.
State v. Boynton, 155 N. C. 456, 71 S. E. 341.
Testimony on a prosecution for engaging in the busi-
ness of selling liquor in prohibition territory, that on one
occasion when witness bought whisky of defendant he had
on hand 5 or 6 quarts and on another occasion 7 or 8 pints
is admissible.
Jackson v. State (Tex. Cr. App.), 200 S. W. 150.
In the trial of one charged with the sale of intoxicating
liquor, it was not error to allow the introduction in evidence
of a number of quart bottles containing whisky and a num-
ber of empty bottles which had contained whisky, all of
the bottles having been found in the house where the sale
was alleged to have taken place.
Holmes v. State, 12 Ga. App. 359, 77 S. E. 187.
384 TITLE II— SEC. 33 OF ACT
"There was no error in admitting testimony, over ob-
jection of counsel for the defendant, to the effect that the
defendant's house was searched and several bottles of whisky
were found therein, notwithstanding the fact that the whisky
itself was not produced in court. Proof as to the possses-
sion of whisky by the defendant at or about the time of the
alleged sale tended to corroborate the direct evidence show-
ing a sale, and this testimony was not inadmissible because
irrelevant."
Bishop v. State, 18 Ga. App. 714, 90 S. E. 369.
In a prosecution for violating the prohibition law, a wit-
ness' testimony that, when he bought whisky from defend-
ant he saw three bottles of beer in defendant's store, was
admissible as prima facie evidence under the express pro-
visions of Acts 1909, p. 64, § 4, that defendant, who had
no liquor license kept liquors for sale contrary to law, and
was proper to be considered in connection with evidence
tending to show sale of whisky to the witness.
, Moore v. State, 12 Ala. App. 243, 67 So. 789.
In a prosecution for selling liquor without license and
contrary to law, evidence of the finding of whisky concealed
under a window in defendant's bedroom in connection with
other evidence as to the method of its concealment and as
to a sale by defendant, was admissible as tending to show
the keeping of liquors for sale, and thereby corroborating
the evidence on the main issue.
Harwell v. State, 12 Ala. App. 265, 68 So/ 500.
In a prosecution for illegal sale of intoxicating liquors in
the barrel, it was permissible for a witness to say that
shortly before the sale there was no barrel of liquor at the
place at which defendant delivered it, as preliminary to
showing that after the alleged sale there was a barrel at
such place.
D'Amico v. State (Del.), 102 Atl. 78.
Evidence concerning whisky taken from the defendant
immediately prior to the sales for which he was being pros-
ecuted was admissible as tending to show what defendant's
business was at the time of the sales.
Dean v. State, 130 Ark. 322, 197 S. W. 684.
TITLE II— SEC. 33 OF ACT 385
A witness for the state having testified that he bought in-
toxicating liquor from the accused a large number of times
during the two years immediately preceding the finding of
the bill of indictment, it was not erroneous to admit, in
corroboration of this evidence, the testimony of another
witness that during this period he had seen the accused
several times with his pockets loaded with whisky.
Mills v. State, 11 Ga. App. 383, 75 S. E. 266.
On a trial for selling whisky in violation of a city prohi-
bition ordinance, evidence that just prior to the leaving of a
bottle of whisky where the prosecuting witness received it
accused's pockets were bulging with something like the bulk
of bottles was admissible as a part of the circumstance cul-
minating in the sale testified to.
Cooper v. Gadsden, 10 Ala. App. 609, 65 So. 715.
On a trial for selling whisky in a prohibition county, evi-
dence that officers under a search warrant found in ac-
cused's trunk about 76 pint bottles of whisky was admissi-
ble.
Martoni v. State, 74 Tex. Cr. App. 90, 167 S. W. 349.
Evidence that a large quantity of whisky, in pint bottles,
belonging to the defendant, was discovered in his trunk was
admissible on his trial for the offense of selling intoxicating
liquors.
Wooten v. State, 17 Ga. App. 333, 86 S. E. 740.
Nearness in Point of Time.
See also ante, "Scope of Inquiry,"
The possession of intoxicating liquors by the defendant at
or about the time of the alleged sale is a circumstance of
corroboration of more or less weight according to its near-
ness or remoteness to the matter under investigation.
Wooten v. State, 17 Ga. App. 333, 86 S. E. 740.
Evidence that there had been found on defendant's prem-
ises, about a year before the alleged sale about 2y2 pints of
whisky, several old bottles which had previously contained
whisky, two large cartons which had been opened, and about
—25
386 TITLE II— SEC. 33 OF ACT
15 old bottles in a loft, was irrelevant; yet the error in the
admission of such testimony did not require the grant of a
new trial, there being positive evidence authorizing a find-
ing that the sale, as alleged in the indictment, had taken
place.
Jackson v. State, 12 Ga. App. 480, 77 S. E. 651.
Testimony that on the day following the alleged sale ac-
cused had in his possession liquor of the same kind and in
similar containers, was admissible.
Porras v. State, 19 Ariz. 131, 166 Pac. 288.
Evidence that when arrested on the second day after the
sale, defendant had an unopened pint of whisky on his per-
son, was admissible as a circumstance to show that he made
the sale as charged.
McCuen v. State, 75 Tex. Cr. App. 108, 170 S. W. 738.
Since precise time at which crime committed need not be
stated in an information it is not error, in a prosecution for
keeping intoxicating liquors in a drug store with intent to
sell unlawfully, to admit evidence as to result of search of
defendant's premises by police officers four days after date
fixed as that of commission of crime.
State v. McCaskey, 97 Wash. 401, 166 Pac. 1163.
The testimony of defendant and his witnesses being in
direct contradiction of that for the people on prosecution
for violation of prohibition law, evidence of the finding of
liquors on the premises several days after date of alleged
offense was admissible in corroboration and on credibility.
Lakomy v. People (Colo.), 178 Pac. 571.
Evidence of a search of defendant's shop made by the
officers thirteen days after the alleged unlawful sale, and of
the whisky and empty bottles then found there, was admis-
sible, as tending to show that intoxicating liquor had been
kept there for illegal traffic, and as connecting defendant in
ownership with the whisky sold at the time alleged.
State v. Legendre, 89 Vt. 526, 96 Atl. 9.
On the trial of one charged with illegally selling whisky
it is not error to admit evidence that the house where the
TITLE II— SEC. 33 OF ACT 387
accused lived was searched by an officer subsequently to the
day on which the alleged sale was made, and that bottles of
whisky and empty bottles which had contained whisky were
found therein. Cole v. State, 120 Ga. 485, 48 S. E. 156;
Taylor v. State, 5 Ga. App. 237, 62 S. E. 1048. The fact
that the direct evidence was of a sale some months previous
to the search of the house where the accused lived would
only affect the weight or probative value of the circum-
stances that whisky and empty whisky bottles were found
in the house; and the further fact that the accused was a
married woman living with her husband in the house where
the whisky and empty whisky bottles were found would not
render the evidence inadmissible, where the positive evi-
dence showed that she, and not her husband had previously
sold the whisky.
Beaty v. State, 7 Ga. App. 327, 66 S. E. 808.
Craig v. State, 9 Ga. App. 233, 70 S. E. 974.
Such evidence seems to be admissible to show guilty
knowledge or intent, and it is error to admit it for other
purposes.
Weinberg v. State, 81 Tex. Cr. App. 306, 194 S. W.
1116.
Phillipps v. State (Okla. Cr. App.), 183 Pac. 521.
State v. O'Toole (Me.), 108 Atl. 99.
Admission of testimony that the sheriff took from de-
fendant's residence some beer, wine, and whisky some time
subsequent to alleged sale was reversible error.
Weinberg v. State, 81 Tex. Cr. App. 306, 194 S. W.
1116.
In a prosecution for unlawful possession of intoxicating
liquor, it was error to permit prosecution to prove that
three or four weeks after filing of information the officers
found intoxicating liquors at same place.
Phillips v. State (Okla. Cr. App.), 183 Pac. 521.
In prosecution for having possession of intoxicating liq-
uor, with intent to unlawfully sell it, the discretion of the
trial judge was not wrongly exercised in admitting evi-
dence that some 18 months before the date alleged in the
complaint persons were seen going in and coming out of
defendant's place, and that on one day about three months
388 TITLE II— SEC. 33 OF ACT
later defendant had intoxicating liquor in her possession ;
the jury being instructed that the evidence was competent
only in relation to the intent with which defendant kept the
liquor in question.
State v. O'Toole (Me.), 108 Atl. 99.
Liquor Found by Means of Unlawful Search. — In a
prosecution for unlawfully keeping intoxicating liquor for
sale, where the sheriff searched the defendant's store after
6 o'clock, but while it was still open, testimony that the de-
fendant agreed to let him search the upstairs room, but re-
fused to open a little room at the back of the store where
the liquor was subsequently found, was not inadmissible
on the ground that the defendant had a right to refuse a
search after 6 o'clock, since Gen. Acts Sp. Sess. 1909, p.
77, § 22, subd. 7 permits such a search where the premises
are open and the room was a part of the store premises.
Patterson v. State, 8 Ala. App. 420, 62 So. 1023.
Even if it was error to allow a witness to swear, "We
had a search warrant to search Gene Page's house for liq-
uor," the admission of this evidence could hardly have af-
fected the jury and caused them to find a verdict of guilty,
if without this evidence they would not have done so. More-
over, evidence obtained by an illegal and unauthorized search
is admissible against the defendant. Calhoun v. State, 144
Ga. 679, 87 S. E. 893. In addition, this ground of the mo-
tion states that when this testimony was objected to there
was "no ruling by the court." A failure to renew and in-
sist upon the motion to reject the evidence will be consid-
ered as a waiver of the objection. Lindsay v. State, 138
Ga. 818, 76 S. E. 369, and cases cited; Thurman v. State,
14 Ga. App. 543, 81 S. E. 796, and cases cited.
Page v. State (Ga.), 99 S. E. 55.
Return on Search Warrant. — Where the sheriff had
seized a large quantity of liquor under a search warrant
against the defendant, and could not remember the descrip-
tion of it without reference to his return, which he knew
to be correct when he made it, the return was admissible,
both as a means of refreshing his recollection and as docu-
mentary evidence.
Patterson v. State, 8 Ala. App. 420, 62 So. 1023.
TITLE II— SEC. 33 OF ACT 389
13. POSSESSION OF PREMISES.
Where defendant was charged with selling intoxicating
liquor in a prohibition district at a particular time and place,
evidence tending to show that the defendant was in charge
of said place shortly before the date of the alleged offense
is relevant to the issue.
State v. Stanley, 134 La. 131, 63 So. 850.
In prosecution for violation of prohibition law, testimony
of two witnesses for the state that accused was in posses-
sion of the premises where they found liquor, sufficiently
connected accused with both the premises and the posses-
sion of the liquor to render their testimony admissible, not-
withstanding testimony of several witnesses for accused
that she was not in possession of such premises.
Bridgeforth v. State (Ala. App.), 77 So. 77.
In a prosecution for unlawfully receiving alcoholic liquors,
testimony that liquor was found on accused's premises is
competent where witnesses had previously testified that they
took liquor to such premises after the law's enactment.
Rogers v. State, 133 Ark. 85, 201 S. W. 845.
Liquor on Adjacent Premises, Across Street, etc.—
Evidence of the finding of beer in a building across the
street from accused's place of business is inadmissible,
where there was no evidence connecting accused with the
place or of keeping liquor in that place.
Cravey v. State, 10 Ala. App. 168, 64 So. 756.
The court did not err in refusing to rule out the testi-
mony of a city policeman to the effect that he found two
baskets full of whisky in a house immediately adjacent to
the defendant's place of business, or in admitting in evi-
dence the whisky alleged to have been so found. It was
for the jury to say whether the house where the whisky
was found was or was not a nearby place or room used by
the proprietor in connection with his business for keeping
therein such liquors as he might desire to furnish others in
violation of the prohibition law.
AlcAllister v. State, 17 Ga. App. 159, 86 S. E. 412.
390 TITLE II— Sec. 33 of ACT
Ownership of Building or Premises. — While, in a
prosecution for having in possession intoxicating liquors for
illegal sale, it is immaterial whether accused owned the
building in which they were stored, or the liquors, if he had
possession, such facts are admissible as tending to show the
fact of possession.
Lemon v. Commonwealth, 171 Ky. 822, 188 S. W. 858.
But in prosecution for having unlawful possession of in-
toxicating liquors at a drug store, cross examining a wit-
ness to show whether he noticed a certificate of registration
in another's name at the drug store was improper.
State v. Billingsley, 99 Wash. 445, 169 Pac. 845.
The certificate of registration of a drug store under Rem.
Code 1915, § 8464, making declaration of ownership pre-
sumptive evidence of ownership, was not admissible; the
charge being the keeping of intoxicating liquors for an
unlawful purpose, and not keeping the drug store for an
unlawful purpose.
State v. Billingsley, 99 Wash. 445, 169 Pac. 845.
Ownership of Liquor Sold or Found in Possession.
—Where a state's witness testified that he bought whisky
from accused, who personally delivered it and received the
money paid by the witness, the ownership of the whisky
was immaterial, and the exclusion of evidence of owner-
ship of whisky taken away by the witness on another occa-
sion was proper.
Roden v. State, 3 Ala. App. 197, 58 So. 74.
And in prosecution for violating an ordinance of a city
by having in possession more than two quarts of intoxi-
cating liquor other than beer, the ownership of the liquor
found in defendant's possession was immaterial.
Seattle v. Brookins, 98 Wash. 290, 167 Pac. 940.
Neither the ownership of the whisky found in the cellar
of a storeroom, in which was conducted a business of
which defendant had charge as general manager, nor the
opinion on that subject of the officer who seized it, is
TITLE II— SEC. 33 OF ACT 391
material on a prosecution for keeping prohibited liquors
for a sale.
Brigman v. State, 8 Ala. App. 400, 62 So. 980.
Evidence that the accused did not own the intoxicating
liquor found in his place of business, or that it was there
without his knowledge or consent, was relevant to his de-
fense, and therefore testimony offered by the accused to
prove that the intoxicating liquor found in his place of
business was in fact bought by one of his employees for
persons not connected with the place of business, and which
tended to show also that the liquor was not in the actual
possession of the accused, but was in the temporary pos-
session of his employee, for the purpose of being delivered
by the employee to those for whom he had bought it, was
relevant and material, and should have been admitted.
Bloodworth v. Mulledgeville, 12 Ga. App. 560, 77 S. E.
1131.
A conviction for keeping intoxicating liquors for sale
cannot be predicated on evidence showing that defendant's
boarder kept such liquor locked in a trunk in his room.
Fair v. State (Ala. App.), 75 So. 828.
Affidavit as Admission of Ownership. — In a prose-
cution for keeping intoxicating liquors for sale, where it
was proved that the sheriff had seized a large quantity of
liquor from a room adjoining defendant's store, an affida-
vit claiming the liquor, made thereafter by the defendant,
was competent as an admission of his keeping the liquor
under circumstances which Gen. Acts Sp. Sess. 1909, p. 64,
§ 4, makes prima facie evidence of an unlawful purpose.
Patterson v. State, 8 Ala. App. 420, 62 So. 1023.
Kegs, Jugs, Bottles, etc., about Premises. — On the
issue of unlawful sale of liquor, or the keeping of liquor
for unlawful sale or other unlawful purpose, it is compe-
tent for the state to show that there were found on or
about the defendant's premises quantities of empty whisky
barrels, or beer kegs, jugs or bottles. Such circumstance
is corroboratory and is proper to go before the jury in con-
392 TITLE II— Sue. 33 of ACT
nection with other evidence tending to show unlawful sale
or the unlawful possession of prohibited liquors.
Thomas v. State, 13 Ala. App. 246, 68 So. 799.
Smith v. State, 12 Ga. App. 482.
State v. Manship, 174 N. C. 798, 94 S. E. 2.
State v. Turner, 171 N. C. 803, 88 S. E. 523.
Borders v. Macon, 18 Ga. App. 333, 89 S. E. 451.
On the trial of one charged with the sale of intoxicating
liquor, evidence that on the premises where the sale was
alleged to have been made were found numerous empty
bottles which had contained whisky, and other bottles and
jugs which did contain whisky, was admissible in corrobo-
ration of the testimony in behalf of the state that a sale
had been made.
Smith v. State, 12 Ga. App. 482, 77 S. E. 651.
On a trial for retailing spirituous liquors, the testimony
of the sheriff that just outside defendant's store he found
a box of bottles and a sack full of bottles, both of which
were placed before the jury, and which he testified cor-
responded in appearance and labels with the -bottles which
the prosecuting witness testified he purchased from defend-
ant, was admissible.
State v. Manship, 174 N. C. 798, 94 S. E. 2.
In a prosecution for having in his possession intoxicat-
ing liquors for the purpose of sale, evidence of the condi-
tion of defendant's premises and the liquor corks, etc.,
stored therein, is competent to show purpose of defendant
in having the liquor.
State v. Baldwin (N. C), 100 S. E. 345.
In a prosecution for selling liquor and having liquor in
possession for sale, evidence of a witness that he had much
complaint from the neighborhood where defendant lived,
and went out and searched and found empty liquor kegs
and jugs a couple of hundred yards in the woods behind
defendant's house, and also some liquor in his pantry, was
admissible.
State v. Turner, 171 N. C. 803, 88 S. E. 523.
TITLE II— SEC. 33 OF ACT 393
"It was not improper to permit a witness to testify that
he had seen drays 'coming there and taking away stuff,
apparently whisky; there were empty whisky barrels and
packages wrapped in paper shaped like bottles' that negroes
went and came with packages; that a dray carried off two
or three loads of empty bottles; that they were whisky
barrels, to the best of his knowledge and belief and that
there was 'a pretty strong odor' of whisky at the place.
The evidence was not inadmissible as a conclusion, and was
not irrelevant and immaterial."
Borders v. Macon, 18 Ga. App. 333, 89 S. E. 451.
The mere finding of empty beer bottles, however, creates
no presumption of illegal sale or keeping for sale.
Nies v. District Court (la.), 161 N. W. 316.
Presence of Still or Bar Equipment; General Ar-
rangement and Adaptation of Premises to Liquor
Business. — The defendant being charged with the sale of
whisky or with having it in his possession, there is no er-
ror in admitting testimony that apparatus for distilling
whisky was found on his premises. This is a circumstance
which may properly be considered by the jury.
Trentham v. State, 22 Ga. App. 134, 95 S. E. 538.
Compapre Craig v. State, 9 Ga. App. 233, 70 S. E. 974.
Cole v. State, 120 Ga. 485, 48 S. E. 156.
Evidence that a bar, which was almost a perfect imita-
tion of a soloon bar, was maintained on the premises, was
a circumstance which the jury might take into considera-
tion in determining whether the place was used for the
purpose of keeping for sale or selling intoxicating liquors.
State v. Fountain (la.), 168 N. W. 285.
\Yhere the defense was that the place where the alleged
nuisance was being maintained was only a lodgeroom
where the members occasionally had a keg of beer on tap,
the evidence of the officer serving the warrant, which
showed the situation of the premises, the crowd, the liq-
uors, and paraphernalia of the place, and the presence of
the defendant and his acts, was competent, although the
394 TITLE II— SEC. 33 OF ACT
information may have been filed the day before the officer
served the warrant.
State v. Berger, 97 Kan. 366, 155 Pac. 40.
That the place where liquors were found bore evidence
of having been used before for the purpose of storage or
sale is admissible as a statement of a collective fact.
Harwell v. State, 12 Ala. App. 265, 68 So. 500.
Where a large quantity of liquor was found in a room
back of defendant's store, it was proper in a prosecution
for unlawfully keeping prohibited liquors, to introduce evi-
dence showing that the room was inclosed by a high solid
fence, as a circumstance showing that an unlawful busi-
ness was being carried on there.
Patterson v. State, 8 Ala. App. 420, 62 So. 1023.
Evidence of "Saloon" Sign.— Under Acts 1909 (Sp.
Sess.) p. 94, § 33^2 which permits proof, in a trial of a
dealer of intoxicating liquors for unlawful sale, etc., that
he maintained a sign having the word "saloon," the state is
not entitled to show that one prosecuted as a bottler per-
mitted such a sign to remain over his place of business ; it
having been there when he rented the premises.
Sheppard v. State, 5 Ala. App. 178, 59 So. 333.
Photographs and Diagrams of Premises. — In a pros-
ecution for the illegal manufacture of liquor, a witness who
was endeavoring to show how the parts of the distillery
found in defendant's house might be assembled so as to
make a complete apparatus for manufacturing liquor, could
use a photograph for that purpose, as well as a diagram,
having testified that the protograph was an accurate pic-
ture of the implements found in defendant's house.
State v. Jones, 174 N. C. 709, 95 S. E. 576.
Telephone Arrangement. — In a prosecution for sell-
ing and keeping on hand liquor, contracts for a telephone
in the place in question, one signed by accused and the
other by a third person, were properly admitted in evidence,
the latter contract being but a continuance of the former
for the same place and telephone.
Brooks v. State, 19 Ga. App. 3, 90 S. E. 989.
TITLE II— SEC. 33 OF ACT 395
14. CHARACTER OF DEFENDANT'S BUSINESS.
Character of Defendant's Business.— In prosecu-
tions, illegal selling or engaging in the business of selling,
it is competent to show that such, in fact, is the character
of the defendant's business.
State v. Moore, 166 N. C. 284, 81 S. E. 294.
State v. Seaborn, 116 N. C. 373, 81 S. E. 687.
The question asked of a witness by the state, on prosecu-
tion for engaging in the business of selling liquor, as to what
business defendant was engaged in, is relevant to show
that defendant was not a druggist, within the exception to
the statute declaring it unlawful to engage in such business.
State v. Moore, 166 N. C. 284, 81 S. E. 294.
On a trial for selling intoxicating liquor to a detective
posing as a whisky drummer, evidence that the person who
accompanied the detective to defendants' place introduced
him to defendants as a whisky drummer and said he could
take some orders was not hearsay, but was admissible as
tending to show that defendants were engaged in the liquor
traffic.
State v. Seahorn, 166 N. C. 373, 81 S. E. 687.
Character and Reputation of Place. — Where the evi-
dence discloses the possession of intoxicating liquors in a
place of public resort fitted up with all the fixtures and ap-
purtenances of a liquor saloon, the general reputation of
such place as a place where intoxicating liquors are kept for
sale, is admissible on the question of intent; the crime
charged being the unlawful possession of intoxicating liq-
uors with intent to sell the same.
Ward v. State (Okla. Cr. App.), 175 Pac. 557.
Davis v. State (Okla. Cr. App.), 182 Pac. 908.
Caffee v. State, 11 Okla. Cr. App. 263, 145 Pac. 499.
In prosecution for maintaining an unlawful drinking place
it being shown accused was the owner and occupant of the
place, evidence tending to show the character of the place
is admissible.
Martin v. State (Ala. App.), 78 So. 322.
But on a trial on an information charging that the defend-
ant did have the possession of intoxicating liquors with the
396 TITLE II— SEC. 33 of ACT
intent to sell the same, evidence of the general reputation of
his home was incompetent to prove the charge.
Brokhaus v. State, 11 Okla. Cr. App. 625, 150 Pac. 510.
Place Frequented by Persons Desiring to Purchase
Liquor; Persons Bringing Liquor Away, etc. — That
people in the community desiring to purchase beer and other
intoxicating and prohibited liquors frequented accused's
place is an evidentiary fact tending to prove the corpus
delicti.
Martin v. State (Ala. App.), 78 So. 322.
And it was not error to permit a witness to testify that he
"had seen others go to the place of business of defendant
and come away with whisky." This evidence was not a
conclusion, but the statement of a fact, which was clearly
admissible as a circumstance corroborative of other evidence
in the case.
Reddick v. State, 15 Ga. App. 437, 83 S. E. 675.
Gary v. State, 7 Ga. App. 502, 67 S. E. 207.
Bonner v. State, 2 Ga. App. 711, 58 S. E. 1123.
Cole v. State, 120 Ga. 485, 48 S. E. 156.
Otiinn v. State, 22 Ga. App. 632, 97 S. E. 84.
In another case the evidence objected to tended to char-
acterize the place as a resort for persons having no visible
business there and it was held that this, in connection with
other testimony, not objected to, that the dwelling house in
which the respondent was alleged to have sold and furnished
intoxicating liquor, was away from the main street, and had
a well-beaten path to it in the rear and in front of it, had a
tendency to make it more probable that the persons going
there were in pursuit of the same object that the evidence of
the state tended to show induced others to go there. It was
a circumstance to be weighed by the jury, and was within
the wide latitude allowed in the reception of circumstantial
evidence in criminal cases. State v. Ryder, 80 Vt. 422, 68
Atl. 652. It was said in this case that the state's attorney
evidently tried the case on the theory that, if he failed to es-
tablish a sale of intoxicating liquor at the dwelling house
of the respondent, he might be able to prove that it was fur-
nished at that place, and hold the respondent liable there-
for because of her house becoming a place of public resort;
TITLE II— SEC. 33 OF ACT 397
and that though he failed to make out such a case as justi-
fied the court below in submitting that question to the jury,
it nevertheless did not make the reception of that evidence
reversible error.
State v. Avicolli (Vt), 102 Atl. 1037, 1038.
But testimony that various persons were seen to go at
different intervals at night from a neighboring house, where
an entertainment was in progress, to the house of the ac-
cused, shut the door, and remain some time, was not ad-
missible; there being no evidence that any liquor was sold
in that house on the occasion referred to.
Holmes v. State, 12 Ga. App. 359, 77 S. E. 187.
And where accused charged with selling intoxicating liq-
uor sought to show that he served the liquor to his guests,
evidence as to persons not going to the place where the liq-
uor was received unless invited by accused was properly ex-
cluded in the absence of any reference as to the time when
persons did not enter the place unless invited.
People v. Sue Chung Kee, 26 Cal. App. 732, 148 Pac.
529.
Drinking and Presence of Drunken Persons on
Premises. — In a prosecution for illegally storing intoxi-
cating liquor, or for keeping intoxicating liquors for unlaw-
ful sale, it is competent for the state to show that certain
persons were seen on the place drinking intoxicants or that
other persons were seen going to defendant's place sober
and coming away intoxicated ; especially when such evidence
is limited to the purpose of showing the intoxicating char-
acter of the liquor kept by the defendant.
Frey v. Commonwealth, 169 Ky. 528, 184 S. W. 896.
People v. Calliari, 1% Mich. 475, 163 N. W. 154, 155.
And in a prosecution for the unlawful sale of intoxicants
it is competent for the state to show that various people had
been seen on defendant's premises drinking and in an in-
toxicated condition.
State v. Ceresa (Vt), 102 Atl. 1040.
State v. Pierce, 88 Vt. 277, 92 Atl. 218.
Medlock v. State, 79 Tex. Cr. App. 322, 185 S. W. 566.
Stramler v. State, 15 Ala. App. 600, 74 So. 727.
Herman v. State, 125 Ark. 278, 188 S. W. 541.
398 TITLE II— SEC. 33 OF ACT
Evidence that one of the persons to whom accused was
charged with selling liquor was seen drinking and under the
influence of intoxicants at the house of accused, is admissi-
ble.
State v. Pierce, 88 Vt. 277, 92 Atl. 218.
Evidence that those attending defendant's dance hall
made much noise in the middle of the night and were under
the influence of liquor is competent.
Medlock v. State, 79 Tex. Cr. App. 322, 185 S. W. 566.
That drunken persons were seen in defendants' place of
business may be shown on a prosecution for illegal sales of
liquor.
Herman v. State, 125 Ark. 278, 188 S. W. 541.
Testimony of a witness for the state that he was in re-
spondent's house with another witness for the state and an-
other and saw respondent there and had some whisky there
that day, but did not know who brought it out or who had
called for it, and that the others were drinking, in connec-
tion with the testimony of the other witness for the state,
was material as tending to show respondent's guilt.
State v. Ceresa (Vt), 102 Atl. 1040.
Where the evidence against the defendant was purely cir-
cumstantial, it was competent to show that liquor was sold
at defendant's residence by defendant's daughter, and that
people had gone in the direction of defendant's house sober
and come away from there drunk; and evidence tending to
show that this condition of affairs had existed continuously
for a period beyond the statutory limitation and up to the
time of the indictment, or within the period covered by the
indictment, was admissible.
Allison v. State, 1 Ala. App. 206, 55 So. 453.
Lane v. Tuscaloosa, 12 Ala. App. 599, 67 So. 778.
Snider v. State, 59 Ala. 64.
Stramler v. State, 15 Ala. App. 600, 74 So. 727.
But in a prosecution for an unlawful sale of such liquors
at the residence of the accused in a small village, proof of
disorderly or riotous conduct by intoxicated persons assem-
bled or passing along a public street in front of but not upon
TITLE II— SEC. 33 OF ACT 399
his premises is inadmissible, unless the testimony discloses
some immediate or causal connection between such conduct
and the unlawful possession or sale of liquors by the ac-
cused, or facts from which such relation may reasonably be
inferred.
State v. Tincher, 81 W. Va. 441, 94 S. E. 503.
In a prosecution for maintaining a liquor nuisance, where
there was no dispute as to the business carried on by defend-
ant and his partner, no issue as to defendant's want of
knowledge or whether witness operating shop next door ob-
tained intoxicants, such witness was properly not permitted
to state whether he had observed any whisky sales, drink-
ing, or congregating on the premises, or whether he at-
tempted to purchase whisky and was refused.
State v. Fountain (la.), 168 N. W. 285.
Flight of Customers upon Approach of Officers. —
Where a deputy sheriff testified that he discovered a bar in
operation in plaintiff's place of business, testimony that the
customers fled upon his approach, leaving only accused, is
admissible in a prosecution for the maintenance of an un-
lawful drinking place, for the action of the crowd was part
of an occurrence in which accused, was a participant ; their
acts being part of the res gestce and tending to show that
the drinking place was unlawful.
Kirk v. State, 10 Ala. App. 216, 65 So. 195.
That Officers Were Waiting or Watching because
They Had "Been Told," or "Had Heard," etc.— In a
prosecution for carrying on the business of a retail dealer
without having paid the special tax therefor, it was prejudi-
cial error to permit the prosecuting witness on direct ex-
amination to testify that he undertook to buy liquor from
defendant because he had been told that defendant was sell-
ing. In such cases as this, no doubt the presence or absence
of any previous sale is a relevant fact to be proved one way
or the other by witnesses competent to speak ; but this may
not be done by hearsay.
Biandi v. United States (C. C. A.), 259 Fed. 93.
The proof that the officers were waiting at the point where
the arrest was made, because they had been told that liquor
400 TITLE II— SEC. 33 OF ACT
was to be brought in by some one, was not an attempt to
prove the guilt of these defendants by hearsay testimony,
within the principle. Biandi v. United States (C. C. A.),
259 Fed. 93, opinion filed February 5, 1919.
Robilio v. United States (C. C. A.), 259 Fed. 101.
15. REPUTATION AS SELLER OF INTOXICANTS.
On a trial for selling intoxicating liquors, evidence of the
reputation of the accused in the community relative to sell-
ing whisky is not admissible, as the only fact that his repu-
tation would have a tendency to prove would be his charac-
ter, and the character of accused cannot be gone into until
he puts it in issue.
State v. Peters, 142 La. 249, 76 So. 702.
Likewise, it is error to permit a witness to state that he
had heard people say that they believed accused was selling
whisky.
Sasser v. State, 73 Tex. Cr. App. 539, 166 S. W. 1160.
In a search and seizure proceeding; it is improper to
permit the state to show that, before issuance of the search
warrant, defendant had more than once been arrested for
violation of the prohibition laws.
Cheek v. State, 3 Ala. App. 646, 57 So. 108.
But it was proper to allow testimony as to a conversation
between the accused and the witness, prior to a preceding
sale, as to where the witness might obtain liquor, to remain
in evidence, as tending to prove defendant was dealing in
liquors and the subsequent sale by the accused to the wit-
ness.
Ragan v. State, 9 Ga. App. 871, 72 S. E. 441.
And where the prosecution is a penal action under Ky.
St. 2569b, for knowingly delivering intoxicating liquor in-
tended for sale, evidence of the reputation of the consignee
as an illicit vender of intoxicating liquors is admissible.
American Exp. Co. v. Commonwealth, 171 Ky. 1, 186
S. W. 887.
TITLE II— SBC. 33 OF ACT 401
Where Accused Puts His Character in Evidence.—
Where accused has put his character in issue by offering
witnesses of his good character, it is permissible to ask wit-
nesses if they have not heard that the defendant had the
reputation of being a "bootlegger," or if they had not heard
that he had been convicted for violation of the law in this
respect.
Stout v. State, 15 Ala. App. 206, 72 So. 762.
Testimony that one has the reputation of being a boot-
legger is not a conclusion, but a statement of fact.
Medlock v. State, 79 Tex. Cr. App. 322, 185 S. W. 566.
In a prosecution under the search and seizure law for
having in his possession intoxicating liquors with intent to
sell them, the sheriff who testified on cross-examination that
accused's character was good except that he would drink,
might properly on redirect examination be examined as to
whether accused's character was not bad with respect to the
illegal selling of intoxicants.
State v. Cathey, 170 N. C. 794, 87 S. E. 532.
The reply of the sheriff to such question that, "It is bad
for dealing in liquor," was properly admitted.
State v. Cathey, 170 N. C. 794, 87 S. E. 532.
State v. Butler (N. C.), 98 S. E. 821.
"The defendant introduced evidence to show his good
character. The chief of police of Greensboro, Horace
Foushee, witness for the state, was asked if he knew the
general character of Walter Butler, and replied that he did.
He was then asked, 'What is it.' The witness replied, 'It
is bad for selling whisky.' The defendant's counsel objected
to the answer and moved that it be stricken out as incom-
petent and not responsive to the question. This the court
declined to do, and the defendant excepted. This is the
only question presented by the appeal. The witness doubt-
less could not answer broadly that the defendant's charac-
ter was bad. He was on oath, and it was competent for
him to state of his own motion, as he did, 'It is bad for sell-
ing whisky.' He doubtless gave the only answer that his
conscience permitted. The state could not ask whether it
was bad or good for a particular offense, but the witness in
—26
402 TITLE II— SEC. 33 OF ACT
the interest of truth could qualify his answer as he did.
The witness could not say that the defendant's character
was good. Doubtless he could not say it was bad, alto-
gether. He therefore gave the only answer that he could.
In the interest of the administration of justice and in the
investigation of the truth of the charge before the court,
the answer could not be stricken out. The jury were en-
titled to the information."
State v. Butler (N. C), 98 S. E. 821.
In Missouri, however, it has been held error to admit
evidence of defendant's reputation as a violator of the local
option law, even after he had offered evidence of his good
reputation for truth and veracity.
State v. Lyons (Mo. App.), 215 S. W. 484.
Crime of Different Nature. — On the trial of one charged
with the sale of intoxicating liquor, it was error to admit
testimony that he had been living in a state of adultery with
a named woman.
Holmes v. State, 12 Ga. App. 359, 77 S. E. 187.
In a prosecution for violation of the state prohibitory
laws, evidence that defendant was the keeper of a house of
prostitution was inadmissible.
Ryan v. People (Colo.), 180 Pac. 84.
Intoxication of Accused. — The admission of testimony
that a witness had seen the defendant drunk on the streets
before the time of the raid was held not to require the grant
of a new trial. The fact that the defendant was seen in the
condition at least established her familiarity with and use
of intoxicants, and tended to corroborate other testimony
as to the presence of intoxicants alleged to have been found
in her room and their ownership by her, since it is more
reasonable to infer that a drinking person would keep in-
toxicants in his or her possession than one unaccustomed to
their use.
Littleton v. State, 20 Ga. App. 746, 93 S. E. 230.
16. PROOF OF OTHER SALES BY ACCUSED.
The rule that evidence of one illegal sale of intoxicating
TITLE II— SEC. 33 OF ACT 403
liquors should not be received as evidence that another such
sale had been made exists only where the sales are entirely
distinct transactions, the one having no fair tendency to es-
tablish the other, and not where the testimony tends to show
that defendant habitually kept liquor on hand for the pur-
pose of making illegal sales. Especially is such evidence ad-
missible to show guilty knowledge, intent, acquiescence or
consent, and to show the character of the business con-
ducted by the accused.
State v. Boynton, 155 N. C. 456, 71 S. E. 341.
State v. Stanley, 38 N. D. 311, 164 N. W. 702.
Sweatt v. State, 153 Ala. 70, 45 So. 588.
State v. Gesell, 137 Minn. 41, 162 N. W. 683.
Rash v. State, 13 Ala. App. 262, 69 So. 239.
State v. Stanley, 38 X. D. 311, 164 N. W. 702.
Sweatt v. State, 153 Ala. 70, 45 So. 588.
State v. Busick, 90 Ore. 466, 177 Pac. 64.
Elliott v. State, 19 Ariz. 1, 164 Pac. 1179.
Vance v. State, 80 Tex. Cr. App. 197, 190 S. W. 176.
Hill v. State, 19 Ariz. 78, 165 Pac. 326.
Rosenberg v. State, 5 Ala. App. 196, 59 So. 366.
State v. Lafargue, 141 La. 936, 75 So. 998.
Spigener r. State, 11 Ala. App. 296, 66 So. 896.
Curry v. State, 117 Md. 587, 83 Atl. 1030.
State v. Laymon (S. D.), 167 N. W. 402, 403.
Reddick v. State, 15 Ga. App. 437, 83 S. E. 675.
State v. Winner, 153 N. C. 602, 69 S. E. 9.
Allison v. State, 1 Ala. App. 206, 55 So. 453.
State v. Van Vleet (Minn.), 165 N. W. 962.
State v. Holland, 99 Wash. 645, 170 Pac. 332.
Evidence of prior sales in the same place and of prior
shipments may be admitted in a prosecution for the crime
of bootlegging in order to show purpose, intent, and plan,
and when the defense is that the transaction was a joint
purchase and treat and not a sale.
State v. Stanley, 38 X. D. 311, 164 N. W. 702.
In a trial for unlawfully selling intoxicants, evidence of
a sale at a time other than charged was proper, not to con-
vict of the specific sale, but as tending to show that the
specific transaction was a sale — that defendant was a seller
404 TITLE II— SEC. 33 OF ACT
and not a mere agent; in other words, as shedding light on
defendant's bona fides.
Sweatt v. State, 153 Ala. 70, 45 So. 588.
In a prosecution for unlawful sale of intoxicants, evi-
dence of other like sales was admissible to show character
of business done by accused, etc.
State v. Busick, 90 Ore. 466, 177 Pac. 64.
In a prosecution for the illegal sale of intoxicating liquors
by an employee of defendant, evidence of other sales of
intoxicating liquors by such employee both before and after
the sale charged was properly admitted to show knowledge,
consent and acquiescence in the sales by the defendant.
Elliott v. State, 19 Ariz. 1, 164 Pac. 1179.
In a prosecution for pursuing the occupation of selling
intoxicants in prohibition territory, persons not named in
the indictment were properly allowed to testify that they
purchased whisky from the defendant.
Vance v. State, 80 Tex. Cr. App. 197, 190 S. W. 176.
In a prosecution for selling cider found to be intoxicating,
evidence that defendant had, at prior times, made similar
sales was properly admissible to show intent, and that the
cider was sold in the usual course of business.
Hill v. State, 19 Ariz. 78, 165 Pac. 326.
In a prosecution for the illegal sale of intoxicating liq-
uors by an employee of defendant, although a conviction
could not be upon other sales, evidence of other sales not
personally made by defendant were competent to show
sclent er or knowledge on his part ; it being a reasonable and
fair inference that if liquor was frequently disposed of at
his place of business he must have known of it.
Elliott v. State, 19 Ariz. 1, 164 Pac. 1179.
In a prosecution for the violation of the prohibition law
by an employee of accused, evidence that beer and whisky
were found in accused's place of business, and that other
sales had been made when he was present, was properly
admitted, where the court limited its consideration to the
question of accused's connection with the sale charged.
Rosenberg v. State, 5 Ala. App. 196, 59 So. 366.
TITLE II— SEC. 33 OF ACT 405
Under an information charging defendant with keeping a
grog or tippling shop retailing spirituous and intoxicating
liquors without a license, evidence of sales on days other
than that named in the affidavit and information admissi-
ble, since the offense of keeping a tippling shop is continuous
in its nature, and its continuity may be established by proof
of sales on every day within the period during which it con-
tinues.
State v. Lafargue, 141 La. 936, 75 So. 998.
In prosecution for having possession of intoxicating liq-
uor with intent to unlawfully sell it, evidence, confined with-
in reasonable limits, of a previous breach of the liquor laws
by defendant, was admissible with regard to the unlawful-
ness of her possession of the liquor in question.
State v. O'Toole (Me.), 108 Atl. 99.
The offense of having possession of intoxicating liquor
with intent to unlawfully sell it being in its nature a con-
tinuing one, sales by defendant before, after, and at the
time of the alleged keeping might have been shown to the
limited extent of shedding light upon intent to sell liquor
in question.
State v. O'Toole (Me.), 108 Atl. 99.
The one who sent the purchaser for the whisky may also
testify that he sent him on that occasion, that the purchaser
went into the defendant's yard and after a short time came
back with two bottles of whisky, and that he had sent the
same purchaser and other purchasers to defendant's place
on similar errands at other times.
Spigener v. State, 11 Ala. App. 296, 66 So. 896.
In a prosecution under an indictment charging accused
with the unlawful sale of intoxicating liquor to the prose-
cuting witness at defendant's place of business, evidence
that she sold such liquor at her home to other persons than
the prosecuting witness, was admissible to show that her
home where the liquor was obtained was her place of busi-
ness, and that she kept liquor for sale at the place where
the prosecuting witness testified he bought it.
Curry v. State, 117 Md. 587, 83 Atl. 1030.
406 TITLE II — SEC. 33 OF ACT
In a prosecution for unlawful sale of intoxicating liquors,
where some sales would be lawful, the intent could not be
inferred from the act, and it was proper to introduce evi-
dence of other violations of the law by the defendant simi-
lar to that charged.
State v. Laymon (S. D.), 167 N. W. 402, 403.
Where an indictment charged the defendant with keeping
on hand intoxicating liquor at his place of business, and in
another count with the sale of such liquor to a person named,
proof that on the days alleged in the indictment and in the
vicinity of his place of business, he offered to sell intoxicat-
ing liquor to a person other than the one named in the in-
dictment, was admissible in support of the charge of keep-
ing intoxicating liquor on hand at his place of business,
since it was a circumstance tending to show that he had
such liquor in his possession, and tended to corroborate a
witness who testified that the defendant kept intoxicating
liquor on hand at his place of business, though, in the ab-
sence of evidence connecting the offer, or the person to
whom it was made, with a sale of liquor by the defendant
to the person named in the indictment proof of the offer
would not be admissible for the purpose of establishing the
alleged sale.
Reddick v. State, 15 Ga. App. 437, 83 S. E. 675.
Where accused was prosecuted for selling liquor with-
out a license by means of a dumb waiter in a cut-off com-
partment in his place of business and prosecutor testified
that, having made known his presence and thirst a tin cup
appeared in a hole in the wall, that after putting money in
the cup it disappeared and in a few seconds a bottle of
whisky appeared the state was entitled to show by an
other witness in corroboration that he had purchased whisky
at the same place by means of the same device prior to the
purchase by prosecutor, to show defendant's knowledge that
the illicit traffic was being carried on in his place of busi-
ness.
State v. Winner, 153 N. C. 602, 69 S. E. 9.
Defendant was tried on an affidavit charging that he sold,
offered for sale, kept for sale or otherwise disposed of,
spirituous, vinous, or malt liquors contrary to law, or sold,
TITLE II— SEC. 33 OF ACT 407
offered for sale, kept for sale prohibited liquors and bev-
erages contrary to law. The state offered evidence that de-
fendant was the proprietor of a hotel, that several raids
were made, and on several occasions whisky and beer were
found there ; that on one of the raids several bottles of beer
were found in one of the rooms stored in an ice box, one
full cask of beer and another partly filled and that on the
same occasion some whisky was taken from the building,
and on one occasion officers seized two trunks in defend-
ant's bedroom, which were filled with whisky. There was
other evidence that on one occasion a deputy sheriff bought
a bottle of beer from a negro in the hotel, and on another
occasion a deputy sheriff went into the dining room and
saw a negro waiting on the diners, who heard one of them
say to the negro. "Why in the don't you bring those
drinks?" that on the occasion of one of the raids a deputy,
after whisky and beer had been seized and taken from the
building, heard defendant say to another deputy that he had
just as well close up, that we had put him out of business.
Held, that since in the affidavit defendant was not charged
with a single offense but with many offenses of the same
general character, all of the evidence was relevant as tend-
ing to show that defendant was in fact keeping prohibited
liquors for sale in the hotel, and that he was operating a
blind tiger.
Allison v. State, 1 Ala. App. 206, 55 So. 453.
In prosecution for selling intoxicating liquor, evidence of
other sales in defendant's place of business, near time of the
sale charged, was competent to show that part of defend-
ant's business, in connection with alleged cigar store, was
the sale of whisky, and to show that he knew of them, and
that liquors were intermingled with other goods as tending
to show that particular sale was a part of defendant's busi-
ness.
Bundy v. State (Okla. Cr. App.), 184 Pac. 795.
"Defendant had been interested in the soft drinks parlor
at which this alleged illegal sale was made four or five weeks
prior thereto. He denied the sale. On cross-examination
he was asked whether he had ever sold whisky to Sorenson.
the prosecuting witness. Sorenson was called in rebuttal
and testified over defendant's objection, to buying whisky
408 TITLE II— SEC. 33 OF ACT
of defendant on two different occasions before the date of
the sale named in the indictment. This was not impeach-
ment on a collateral issue; whether in this soft drink parlor
defendant kept whisky for sale had an important bearing
upon the sale in question. The time of these other sales
was not too remote, having in mind the short period that
defendant had been connected with the place. In the charge
the effect of this testimony of former sales was quite clearly
and correctly limited."
State v. Van Vleet (Minn.), 165 N. W. 962.
Unlawful Sale by Druggist— Druggists' Record of
Sales. — In a prosecution of defendant druggist for violation
of prohibitory law, defendant's record of sales, other than
that upon which information was based, was properly ad-
mitted upon issue of defendant's good faith.
State v. Holland, 99 Wash. 645, 170 Pac. 332.
In a prosecution for violation of the prohibition law by
selling Jamaica ginger, evidence of other sales than the one
specifically charged was admissible under an information
charging defendant with selling and keeping for sale in-
toxicating liquor.
McLean v. People (Colo.), 180 Pac. 676.
To Contradict Accused. — Defendant having testified,
on direct examination, that he had neither sold nor manu-
factured liquor, he could not complain that the state was
allowed to contradict him by evidence showing that he had
sold liquor.
Lowery v. State, 135 Ark. 159, 203 S. W. 838.
Rumors of Sales; Sales Heard of; Statements in
Absence of Accused, etc. — In a prosecution for having
unlawful possession of liquors, cross-examination as to
whether witness had ever heard of any sales of liquor at
the location involved, was improper.
State v. Billingsley, 99 Wash. 445, 169 Pac. 845.
In prosecution for maintaining an unlawful drinking
place, statements by persons in accused's absence that they
TITLE II— SEC. 33 OF ACT 409
had been getting beer before at accused's place, was inad-
missible as hearsay.
Martin v. State (Ala. App.), 78 So. 322.
In a prosecution for carrying on the business of a retail
liquor dealer without having paid special federal tax, the
refusal of the trial court to allow proffered witnesses to
testify as to whether they had ever heard of liquor being
sold at defendant's place of business cannot be held error,
where the record did not disclose the opportunity such wit-
nesses had for knowing the defendant's reputation or the
reputation of his place of business.
Faraone v. United States (C. C. A.), 259 Fed. 507.
That Persons Came in and Sought to Buy. — For such
purpose, evidence is admissible that, when officers were
making a raid on the place, several soldiers entered and
asked to buy some beer.
Martin v. State (Ala. App.), 78 So. 322.
17. POSSESSION OF TAX RECEIPT.
Under Acts 1911, p. 180, declaring that, in a prosecution
for the unlawful sale of intoxicating liquors, a federal in-
ternal revenue special tax receipt for the sale of liquors
shall be prima facie evidence of the guilt of the person in
possession thereof, or who made application therefor, or to
whom it was issued, the original tax receipt found in the
possession of accused is admissible, for the statute does
not require the state to procure a certified copy, and such
copy, if procured, would only be secondary evidence.
Haar v. State, 14 Ga. App. 548, 81 S. E. 811.
In a prosecution for the unlawful transportation of in-
toxicating liquor, the admission of the certified copy of
United States internal revenue collector's register of tax-
payers for liquor dealers in a city, showing that defendant
had paid both a retail and wholesale liquor dealer's tax, was
proper, as tending to rebut his testimony that he was con-
veying the liquor for other parties.
Smith v. State (Okla. Cr. App.), 181 Pac. 942.
410 TITLE II— SEC. 33 OF ACT
In a prosecution for unlawfully conveying intoxicating
liquors, payment of a retail and wholesale liquor dealer's
internal revenue tax in the name of "John B. Smith" was
sufficiently identified with defendant, where he testified that
his true name was "John B. Smith," and authorized admis-
sion of such payment.
Smith v. State (Okla. Cr. App.), 181 Pac. 942.
Near Beer License. — In a trial under an indictment
charging a violation of the prohibitory law contained in sec-
tion 426, of the Penal Code of 1910, evidence that at the
time the offense is alleged to have been committed the ac-
cused had a license to sell near beer from the state, county
and municipal corporation in which the law is alleged to
have been violated, is irrelevant.
Abbott v. State, 11 Ga. App. 43, 74 S. E. 621.
18. PROOF OF INTOXICATING CHARACTER OF LIQUOR.
Chemical Analysis and Testimony of Experts.—
Testimony of experts as to the amount of alcohol in liquor
sold by the defendant, as shown by chemical tests, is ad-
missible on prosecution for violation of the prohibition acts.
Hall v. State (Ariz.), 165 Pac. 300.
And where the defendant showed that the beer sold by
him was the same as that sold by another, samples of which
were tested and found not to require an internal revenue
license, the state may show that chemists had it analyzed
and found it intoxicating.
Hall v. State (Ariz.), 165 Pac. 300.
Statutory Provisions for Analysis by State Chem-
ist.— Under the Mapp prohibition law (Acts of Va., 1916.
c. 146, § 30y2), making it the duty of the state commis-
sioner of agriculture, on the written request of the proper
official, to cause an analysis to be made of any mixture sup-
posed to contain ardent spirits, and to return to the offi-
cer the certificate of the chemist making the anlysis, though
only the certificate of the chemist is made evidence by the
statute, it is not evidence unless the commissioner of agri-
culture caused the analysis to be made, nor unless he also
TITLE II— SEC. 33 OF ACT 411
returned the chemist's certificate to the officer who requested
the analysis; so that, in a prosecution for dispensing cider,
the commissioner's letter, returning the state chemist's cer-
tificate of analysis to the officer, was evidence, and so much
of it as appeared above the commissioner's signature not to
be disregarded, though it was dated December 5th, while the
date of the affidavit of the chemist was December 15th, a
variance which should have been explained.
Bare v. Commonwealth, 122 Va. 783, 94 S. E. 168, 169.
The Va. Const., 1902, (Code 1904, p. ccix) providing
that "in all criminal prosecutions a man hath the right to be
confronted with the accusers and witnesses," is not vio-
lated by the "Byrd Law" (Acts 1908, c. 189), providing
that the certificate of the state chemist showing an analysis
of a mixture supposed to contain alcohol, when signed and
sworn to by him "shall be evidence in all prosecutions un-
der the revenue laws."
Bracy v. Commonwealth, 119 Va. 867, 89 S. E. 144.
Opinion Evidence. — The drinking of whisky is so com-
mon an occurrence that liquor can be priina facie shown to
be whisky by the opinions of persons accustomed to its use.
People v. Allen (Cal. App.), 174 Pac. 374.
A witness for the state may testify that the bottles which
he found in defendant's house contained whisky without
producing the bottles, since whisky is a commodity whose
characteristics are matters of common knowledge and of
which the court can take judicial notice.
Harwell v. State, 12 Ala. App. 265, 68 So. 500.
On a trial for carrying intoxicating liquor into prohibi-
tion territory, the testimony of an officer, who seized the
accused and the liquor which he had carried into the prohi-
bition territory, that the bottles in the valise contained
whisky, was admissible.
Johnson v. State, 75 Tex. Cr. App. 177, 171 S. W. 211.
A farmer of average intelligence, who had resided for
years on a farm with his family in the apple-growing regions
of the state and was familiar with the popular terms ap-
412 TITLE II— SEC. 33 OF ACT
plied to cider in its process of aging, was competent to tes-
tify whether cider drank by him was fermented.
People v. Emmons, 178 Mich. 126, 144 N. W. 479,
Ann. Cas. 1915D, 425.
But in a prosecution for having violated the local option
law by selling cider, testimony of witnesses that 40 or 50
years ago in Tennessee and Georgia they had made cider
which would not intoxicate when fresh, but would if it be-
came hard cider, was inadmissible as irrelevant.
Salvador v. State, 79 Tex. Cr. App. 343, 185 S. W. 12.
A witness who testified that he knew the difference be-
tween the taste of whisky, wine, and brandy is qualified, if
any qualifications as an expert are necessary to testify that
the liquor which the defendant was accused of selling was
wine.
People v. Mueller, 168 Cal. 526, 143 Pac. 750.
The court should have excluded that portion of the tes-
timony of a witness to the effect that certain bottles seen
by him contained intoxicating liquors, because where it
was evident from the answer of the witness that he was
merely expressing his opinion ; but in view of the conclusive
nature of the competent evidence in the record, which sup-
ported the opinion of the witness, this error was deemed
immaterial.
Gales v. State, 14 Ga. App. 450, 81 S. E. 364.
Color, Taste, Odor, Appearance, etc. — Testimony
that the beverage found had a color like whisky, in connec-
tion with testimony that the bottles were labeled "whisky,"
and that there was an odor of whisky in the place, is ad-
missible on a prosecution for violation of the prohibition
law.
Woodward v. State, 5 Ala. App. 202, 59 So. 688.
In a prosecution for engaging in the business of a retail
liquor dealer in violation of the prohibitory law, evidence
having been introduced to prove that defendant paid for a
government license covering the place and period of time
involved in the charge against him, and authorized by Acts
Sp. Sess. 1909, pp. 63, 84, § 221^ and that his place of
TITLE II— SEC. 33 OF ACT 413
business within such time emitted the odor of a barroom,
it was permissible to prove that the beverage sold by de-
fendant had the color of whisky or of beer.
Warrick r. State, 8 Ala. App. 391, 62 So. 342.
"In a prosecution for selling and keeping on hand liquor,
a witness' testimony that he bought something that looked
like whisky was admissible."
Brooks v. State, 19 Ga. App. 3, 90 S. E. 989.
A witness may testify that he smelled and tasted liquor
and that it was alcohol.
Feagin v. Andalusia, 12 Ala. App. 611. 67 So. 630.
But while evidence that a beverage has the color, odor,
and general appearance of whisky, for instance, or that it
has the taste, color, and general appearance of beer, has
some tendency to prove that it is a prohibited liquor with-
in the meaning of the statute, it cannot be said that proof
of the mere color of a beverage has a logical or legitimate
tendency to identify it as a prohibited liquor. It is not be-
lieved that it is within the intention of the statute to per-
mit one to be convicted of an offense against the liquor
laws by evidence having no more tendency to identify a
beverage disposed of by him as whisky than it has to iden-
tify it as tea. It is a matter of common knowledge that
evidence going no further than to show that a beverage
looks like liquor, does not legitimately tend to show that it
is in fact a prohibited liquor.
\Yright v. State, 4 Ala. App. 150, 58 So. 803.
Intoxicating1 Effect. — The state's witness may properly
testify to the intoxicating effect of the liquor purchased.
Marks v. State, 159 Ala. 71, 48 So. 864, 133 Am. St.
Rep. 20.
Brantly v. State, 91 Ala. 17. 8 So. 816.
Carl v. State. 87 Ala. 17, 6 So. 118, 4 L. R. A. 380.
Knowles v. State, 80 Ala. 9.
Johnson v. State, 3 Ala. App. 155, 57 So. 499.
"\Yhen any drink alleged to be intoxicating is sold in
labeled bottles, as put up by the manufacturer, and has a
commercial name or designation, the evidence of persons
414 TITLE II— SEC. 33 OF ACT
who have purchased it from the defendant and drunk it,
whether at the same time or on different days and occasions
as to whether it is intoxicating is admissible both for the
state and the defendant.
State v. Cool, 66 W. Va. 86, 66 S. E. 740.
Thus where a particular beverage, sold under a trade-
name, to the trade generally, was claimed to be intoxicat-
ing, evidence of its intoxicating effects when sold at other
places than that of accused charged with the illegal sale of
intoxicating liquors was admissible after a foundation had
been laid by proof that the beverage sold at such other
places was manufactured and sold to the trade generally by
the same concern that manufactured the beverage sold by
defendant, and that it was of the same brand and in the
same condition in which it was received from the manu-
facturer.
State v. Clark, 124 La. 965, 50 So. 811.
On the trial of a defendant charged with selling intoxi-
cating liquor within a prohibited territory, the article sold
being a liquid put up in labeled bottles, which defendant
received packed in barrels, purporting on the labels to be
nonintoxicating, and not shown to be a distilled, malt, or
vinous liquor, where the prosecution introduced witnesses
who testified that the contents of some of the bottles drank
by them had an intoxicating effect, defendant was entitled
to show by other witnesses that the contents of other bot-
tles similarly labeled and from the same barrel, which they
drank, had no effect upon them ; the weight of such evidence
being for the jury.
Cihak v. United States, 146 C. C. A. 509, 232 Fed. 551.
In a prosecution for manufacturing alcoholic liquors, tes-
timony that a short time before the accused was arrested,
and while a keg of "Choc" beer was in her house, a negro
man came out of the house with "Choc" beer, which he
sold to witnesses, and that it was intoxicating, was compe-
tent as tending to show that the "Choc" beer was intoxi-
cating.
Patterson v. State (Ark.), 215 S. W. 629.
TITLE II— SEC. 33 OF ACT 415
Jamaica linger.— In a prosecution for violating the
prohibition law by selling Jamaica ginger, any evidence as
to its nature and constituent elements, its ordinary use, its
susceptibility to use as an intoxicant, and the extent of such
use, is admissible to determine whether the liquor sold is
intoxicating or not.
McLean v. People (Colo.), 180 Pac. 676.
Exhibiting Actual Liquor, Containers, etc.— The
character of the containers and their contents is a relevant
and material fact which the jury may properly determine
from an actual inspection of such containers and their con-
tents. It is proper, therefore, for the court to permit, in
connection with other evidence, the introduction of the ac-
tual liquor itself in evidence.
Clark v. State, 5 Ga. App. 605, 63 S. E. 606.
State v. Sullivan, 97 Wash. 639, 166 Pac. 1123.
Thomas v. State, 13 Ala. App. 246, 68 So. 799.
Where on a trial for carrying into prohibition territory
intoxicating liquor, there was evidence that a valise con-
taining whisky was the property of accused, and that he
had transported the same into prohibition territory from a
point in the state, the action in the court in allowing the
district attorney to open the valise in the presence of the
jury, and to introduce it and the whisky contained therein
in evidence was proper.
Johnson v. State, 75 Tex. Cr. App. 177, 171 S. W. 211.
But permitting the state to exhibit one by one sixteen
bottles of whisky in the presence of the jury, after defend-
ant had admitted every material and admissible fact that
could have been established by the exhibition of the whisky,
was error. (Per Gaines, Special Judge.)
Alexander v. State (Tex. Cr. App.), 204 S. W. 644,
645.
Where, in a case involving the question as to whether a
certain liquid is an intoxicating liquor, the state introduces
in evidence the liquor itself, it is proper for the court to
instruct the jury that they may make personal inspection
of the liquid, may apply their own senses to it, may look
416 TITLE II— SEC. 33 OF ACT
at it, taste of it, and thereby determine whether it is or is
not an intoxicating liquor, subject to the limitation that they
must not drink such a quantity as that, if it were intoxi-
cating liquor, it would make them drunk.
Morse v. State, 10 Ga. App. 61, 72 S. E. 534.
And a compliance with a request of the jury that bottles
of liquor in evidence should be sent to the jury room is
held not to afford sufficient grounds for reversal.
State v. Watson, 92 Kan. 983, 142 Pac. 956.
Proving Liquor to Be Same That Accused Sold or
Possessed. — It is not error to refuse to permit a witness
to taste the contents of a bottle to see if they are the same
as the contents of another bottle purchased from the ac-
cused by the witness.
State v. Trione, 97 Kan. 365, 155 Pac. 29.
Where the liquor, defendant was accused of selling, was
taken out of a box in a basket, evidence that the basket con-
taining the box and bottles was afterwards examined on the
same day and found to contain 11 bottles of whisky, was
admissible on an issue as to the contents of the bottle sold.
Berry v. State (Tex. Cr. App.), 203 S. W. 901.
That the officer who found whisky in a bucket in ac-
cused's place of business poured it into a large bottle, be-
cause he thought the bucket might overturn, would not ex-
clude the whisky as evidence in a prosecution for unlaw-
fully keeping liquor for sale, when offered in the bottle to
prove that the contents of the bucket was whisky.
State v. Mostella, 159 N. C. 459, 74 S. E. 578.
The fact that other employees had keys to a lock box in
which a bottle of whisky sold by defendant was being kept
by the deputy sheriff as an exhibit, was insufficient to de-
prive it of all evidentiary force, where the deputy sheriff
identified the bottle, and testified that he frequently went
to the lock box, and that the bottle was always in appar-
ently the same condition.
State v. Hays, 38 S. D. 546, 162 N. W. 311.
TITLE II— SEC. 33 OF ACT 417
Marks and Labels as Evidence. — In a prosecution for
the illegal sale of liquor, labels on boxes and barrels re-
ceived by defendant from a common carrier were some
evidence of the contents thereof.
Hodge v. State, 11 Ala. App. 185, 65 So. 676.
Evidence that packages delivered by an express com-
pany to defendant were billed and marked "whisky" was
some evidence that they contained whisky.
Herring v. State, 11 Ala. App. 202, 65 So. 707.
Permitting a state's witness, who engaged in the search
of defendant's store to identify bottles labeled "gin" and
"whisky" as those found in such store, was proper, since an
ordinary trade label on an article for the purpose of indi-
cating its nature and contents is competent evidence there-
of, as against the person in possession, the inference as to
the contents being a question of fact for the jury.
Thomas v. State, 13 Ala. App. 246, 68 So. 799.
In defense of an indictment for selling intoxicating
drinks the article sold being labeled "Temperance Beer," the
defendant has right to show that it is not intoxicating.
State v. Durr, 69 W. Va. 251, 71 S. E. 767, 46 L. R. A.,
N. S., 764.
But where the prosecution is for introducing liquors into
the state, and the sole defense is that accused received it
within the state, labels and internal revenue stamps show-
ing the liquor to be whisky and time and place of bottling
the same, are inadmissible.
Murray v. State, 19 Ariz. 49, 165 Pac. 315.
Self -Serving Declarations as to Character of Liq-
uor.— In prosecution for selling intoxicating liquors, dec-
larations of defendant that he had emptied the whisky out
of a bottle, and that it contained cider when sold, were in-
admissible, being self-serving.
Berry v. State (Tex. Cr. App.), 203 S. W. 901.
Improper Cross-Examination. — Where county attor-
ney testified that he received a pint bottle from prosecuting
witness; that the next morning the defendant came in and
—27
418 TITLE II— SEC. 33 OF ACT
told him that if he would open the bottle he would find it
was not whisky; that when he looked he found it was
broken, and the liquor spilled smelled like cider — an effort
to prove on cross-examination that defendant told him he
had emptied out the whisky and put in cider before he sold
it, was not germane to the direct examination, and an ob-
jection was properly sustained.
Berry v. State (Tex. Cr. App.), 203 S. W. 901.
19. PROOF OF SOLICITATION OF ORDERS.
Letters, or Copies Thereof. — In a prosecution for so-
liciting or receiving orders for liquors the sale of which was
then prohibited, a letter or conceded copy thereof, ordering
a nonresident consignor to deliver liquors to certain persons
in city, was properly admitted in connection with the other
evidence as to defendant's guilt.
Flowers v. Birmingham (Ala. App.), 83 So. 36.
In action for violation of ordinance by soliciting or receiv-
ing orders for liquors, the sale of which is prohibited in the
state, the prosecution, having a letter purporting to be an
order from defendant to a named person for liquors to be
sent to certain persons in city, obtained by witness from de-
fendant's office in his presence under a search warrant,
might show that person addressed was engaged in liquor
business in Chattanooga, and that shortly after date of let-
ter the kind and quantity of liquors referred to therein were
received by common carriers, billed to persons named there-
in.
Flowers v. Birmingham (Ala. App.), 83 So. 36.
Records of Carrier. — In prosecution for soliciting or
receiving orders for liquors the sale of which was then pro-
hibited in the state, defendant's objection "to the introduc-
tion of each of said records" of two carriers in evidence
was unavailable.
Flowers v. Birmingham (Ala. App.), 83 So. 36.
Identification of Books by Express Employees. — In
prosecution for soliciting and receiving orders for liquors
the sale of which was prohibited in the state, testimony of a
witness formerly in employ of the express company that
TITLE II— SEC. 33 OF ACT 419
book shown him was made in company's office while he was
in charge, but that he did not make the book or do the
writing therein, was not objectionable.
Flowers v. Birmingham (Ala. App.), 83 So. 36.
20. ORDERING AND RECEIVING LARGE QUANTITIES OF LIQUOR.
The receipt of large quantities of liquor is at least some
evidence of the receipt of such liquor for unlawful purposes.
Accordingly, it is generally held that it is competent for the
state to show a criminal purpose, either of possession or
sale, by proving that the accused has ordered or received
liquor in quantities larger than would ordinarily be required
for personal use.
State v. Gordon, 32 N. D. 31, 155 N. W. 59, Ann. Cas.
1918A, 442.
Brigham v. State, 8 Ala. App. 400, 62 So. 980.
Wilson v. Commonwealth, 181 Ky. 370, 205 S. W. 391.
Watson v. State, 8 Ala. App. 414, 62 So. 997.
Bragg v. State, 15 Ga. App. 623, 630, 84 S. E. 82.
Hayes v. State, 18 Ga. App. 68, 88 S. E. 752.
State v. McKone, 31 N. D. 547, 154 N. W. 256.
Coates v. State, 5 Ala. App. 182, 59 So. 323.
Borders v. Macon, 18 Ga. App. 333, 89 S. E. 451.
State v. Blauntia, 170 N. C. 749, 87 S. E. 101.
Dunn v. State, 8 Ala. App. 382, 62 So. 379.
Webb v. State, 13 Ga. App. 733, 80 S. E. 14.
Clark v. State, 74 Tex. Cr. App. 464, 169 S. W. 895.
Springer v. State, 129 Ark. 106, 195 S. W. 376.
Dunn v. State, 18 Ga. App. 95, 89 S. E. 170.
This is especially true where the liquor alleged to have
been unlawfully sold is shown to be of the same character
and put up in packages or containers of the same size and
description as the liquor received by the accused.
Webb v. State, 13 Ga. App. 733, 80 S. E. 14.
The weight of such evidence depends in no little degree
upon its nearness or remoteness in point of time to the mat-
ter under investigation.
Webb v. State, 13 Ga. App. 733, 80 S. E. 14.
420 TITLE II— SEC. 33 OF ACT
Illustrative Cases. — Evidence of frequent large impor-
tation of liquors by appellant on dates immediately prior to
the date charged in the information was admissible, as tend-
ing to show a criminal purpose as charged in importing the
liquors on such date.
State v. McKone, 31 N. D. 547, 154 N. W. 256.
In a prosecution for violating the prohibitory law, evi-
dence that whisky had frequently been seen at the railroad
station shipped to accused, admitted without objection was
a circumstance that could be looked to in determining the
question of defendant's violation of the law.
Coates v. State, 5 Ala. App. 182, 59 So. 323.
Where a witness testified that he had frequently seen a
barrel of whisky at E. shipped to defendant, that the last
time he saw a barrel at the depot was on the preceding
Thursday, and that it was hauled out on Friday by defend-
ant's son and was marked "Glass, \2l/2 gallons," defendant
was not prejudiced by the court permitting the witness to
further testify, over objection, that he had seen other ship-
ments to the defendant, some in barrels and some in drums,
and that he saw a shipment about a week before the one
concerning which he had previously testified.
Coates v. State, 5 Ala. App. 182, 59 So. 323.
There was no error in allowing a witness to testify that
he had hauled some barrels for the accused, and that the
accused paid him therefor, though he "could not tell how
many gallons to the barrels." This evidence was relevant
and material, and was not objectionable upon the ground
that the contents of the barrels were not identified as in-
toxicating liquor.
Borders v. Macon, 18 Ga. App. 333, 89 S. E. 451.
It was proper to permit a drayman to testify that he had
taken two barrels for the accused to the building in ques-
tion and also that he carried to the same place a little box
of case goods, making two dray loads that were carried
there, although he testified that he was not personally ac-
quainted with the accused; the witness testifying that "that
gentleman (the accused) looks like him." Such testimony
was not immaterial and irrelevant, and was not objection-
TITLE II— SEC. 33 OF ACT 421
able upon the ground that the witness had not identified the
accused as the person employing him, and that it was not
shown that the goods were intoxicating liquors.
Borders v. Macon, 18 Ga. App. 333, 89 S. E. 451.
In a prosecution for unlawfully having spirituous liquor
to sell in violation of law, where a witness testified that a
man told him to take the barrels containing whisky to de-
fendant had given similar directions about another barrel,
and that barrels and empty bottles resembling the barrels
and bottles seized were found at defendant's house, the
statement of the first witness that some one had told him
to take the whisky to the defendant's house was relevant,
though he could not identify defendant as the man who
gave him the bills of lading to secure the whisky from the
carrier.
State v. Blauntia, 170 N. C. 749, 87 S. E. 101.
The admission of evidence for the state that at the time
defendant ordered the whisky (a part of which was found
in his store) he ordered 48 half pints was not erroneous.
Dunn v. State, 8 Ala. App. 382, 62 So. 379.
Evidence that large quantity of whisky contained in pint
bottles had been claimed by the accused and delivered to
him was admissible on his trial for the offense of selling
intoxicating liquor. Especially is this so where the liquor
alleged to have been sold was of the same quantity as the
liquor contained in the bottles. It is a circumstance of
corroboration of more or less weight according to its near-
ness or remoteness to the matter under investigation.
Webb v. State, 13 Ga. App. 733, 80 S. E. 14.
Same ; Nearness or Remoteness in Point of Time.—
In a prosecution for the unlawful sale of intoxicating liq-
uor, the state may cross examine the defendant as to the
number of times within the last six months or a year he
had gone away and brought back with him intoxicating liq-
uors for the purpose of proving that he had, from time
to time procured and had on hand such liquor.
Clark v. State, 74 Tex. Cr. App. 464, 169 S. W. 895.
422 TITLE II— SEC. 33 OF ACT
On a trial for the illegal sale of intoxicating liquor in
July or August, evidence that during the months of Jan-
uary to June, inclusive, defendant received consignments of
liquor in larger quantities than would be required for his
personal use, was properly admitted.
Springer v. State, 129 Ark. 106, 195 S. W. 376.
Proof that the accused had received from the express
company within two years next preceding the indictment,
between 500 and 1,000 gallons of whisky is competent.
This fact may be considered only by the jury as a corrobo-
rative value of other evidence which may tend to show the
defendant's guilt.
Dunn v. State, 18 Ga. App. 95, 89 S. E. 170.
Liquor Ordered in Another's Name. — In a prosecu-
tion for selling whisky, the fact that defendant ordered
whisky several times in another's name was a material cir-
cumstance tending to prove that defendant was in the liq-
uor business.
Holt v. State, 126 Ark. 223, 190 S. W. 101.
Evidence That Others Had Received Large Quan-
tities Also. — On a trial for the illegal sale of intoxicating
liquor where the alleged purchaser was well acquainted
with defendant, and the question between them was one of
veracity and not of identity, evidence that other persons had
received liquor in as large quantities as defendant was
shown to have received, was properly excluded.
Springer v. State, 129 Ark. 106, 195 S. W. 376.
21. RECORDS OF EXPRESS AND RAILWAY COMPANIES.
Upon a trial for illegal sale of intoxicating liquor, it is
not error to admit in evidence express receipts as tending
to show shipments of liquor to defendant.
State v. Gesell, 137 Minn. 41, 162 N. W. 683, 684.
Delivery and Receipt Book with Defendant's Sig-
nature.— The delivery book of an express company in
which various consignments of liquor were receipted for
by the defendant, is admissible in evidence in a prosecution
II— SEC. 33 OF ACT 423
for unlawfully keeping intoxicating liquor for sale, and in
spite of the fact that the original bills of lading or shipping
bills were not introduced, where the signature of such de-
fendant appears in such book as a receipt for such liquor
and is proved to be his.
State v. Gordon, 32 N. D. 31, 155 N. W. 59, Ann. Cas.
1918A, 442.
The depot agent may properly testify that the receipts
for the liquor are in defendant's handwriting ; it tending tc
show that defendant actually received the liquors.
Hodge v. State, 11 Ala. App. 185, 65 So. 676.
Sufficiency of Identification of Consignee. — Whether,
in a prosecution for using the name of another in ordering
or receiving intoxicating liquor, the evidence identifies the
defendant, to the satisfaction of the trial judge, with a re
ceipt such as that mentioned is a question for the trial judge
alone to determine. The receipts in such case constitute
merely a link in the chain of evidence, and are admissible.
State v. Ferris, 142 La. 198, 76 So. 608.
Evidence to Show Liquor Ordered by Others in
Name of Consignee. — Evidence on prosecution of a ne-
gro for engaging in the business of selling liquors in pro-
hibition territory, that white people often ordered whisky
in the names of negroes and then got it from the express
office, or, finding it had come, got them to sign for it, is
inadmissible for defendant, not being connected with him.
Jackson v. State (Tex. Cr. App.), 200 S. W. 150.
Otter Records and Books of Entry; Identification
of Entries; Present Recollection, etc. — Where the wit-
ness testifies that he had made an entry in the books of an
express company purporting to show delivery of a package
marked "whisky," that he knows the defendant was there
in person and received it, and that he knows the entry was
correct when made, but that he has no recollection of the
transaction apart from the entry, the entry is admissible in
evidence.
Herring v. State, 11 Ala. App. 202, 65 So. 707.
424 TITLE II— SEC. 33 OF ACT
The admission of such a memoranda of delivery of a
package marked whisky is not prejudicial where another
witness, who testifies to its correctness, states the delivery
as a fact recollected apart from such entry.
Herring v. State, 11 Ala. App. 202, 65 So. 707.
Express records showing shipments of liquor to defend-
ant are admissible, although the particular entry is in the
handwriting of another than the witness, but with whose
handwriting witness is familiar.
Fisher v. State, 81 Tex. Cr. App. 568, 197 S. \Y. 189.
Express records being admissible in a prosecution for
pursuing business of selling intoxicating liquors, it is not
reversible error to permit the witness to state that the
books show the entries in question; such statement being
merely cumulative of the facts disclosed by the book.
Fisher v. State, 81 Tex. Cr. App. 568, 197 S. \V. 189.
Agent May Explain Abbreviations. — No error is
committed in a prosecution for the unlawful keeping for
sale of intoxicating liquor in allowing the express agent
who delivered the goods to testify as to the meaning of ab-
breviations in his receipt book, such as "Hg.," "cs.," "Bx."
State v. Gordon, 32 N. D. 31, 155 N. W. 59, Ann. Cas.
1918A, 442.
Records Made Admissible by Statute. — The books
required to be kept by express companies, railroads, and
other transportation companies under the provisions of
section 6 of chapter 70, Session Laws 1911, when prop-
erly identified by the person in possession and control of
the same are admissible in evidence in a case where the
defendant is charged with a violation of the prohibitory
liquor laws of this state.
Fletcher v. State, 13 Okla. Cr. App. 563, 165 Pac. 907.
The original records of liquor shipments of express com-
panies, railroad companies, public or private carrier, pre-
pared in accordance with section 6, c. 27, p. 126, Sess. Laws
1913, are admissible in evidence under the laws of this
TITLE II— SEC. 33 OF ACT 425
state, without identification of the signature of the con-
signee.
State z: Maguire, 31 Idaho 24, 169 Pac. 175.
Affidavits, etc., Made Prima Facie Evidence. — Un-
der Va. Acts, 1916, c. 146, making them prima facie evidence,
and independent thereof, the affidavits of receiver of liq-
uors, made a part of express records, are competent evi-
dence of all facts which they tend to prove, including the
corpus delicti.
Cochran v. Commonwealth, 122 Va. 801, 94 S. E. 329.
In prosecution for receiving liquor from an express com-
pany in excess of quantity allowed by Acts 1916, c. 146,
§ 40, the contention that the records of the express com-
pany, and affidavits, which are a part thereof, of the person
receiving the liquor, are not admissible until the corpus
delicti has been otherwise proven, is without merit.
Cochran v. Commonwealth, 122 Va. 801, 94 S. E. 329.
Not Violative of Right of Confrontation. — The ad-
mission of the express records, showing receipt of liquor
by accused, is not a violation of the right to be confronted
with accusers, as provided by the Va. Const. § 8 (Code 1904,
p. ccix) ; such constitutional provision not being intended
to exclude proper documentary evidence.
Cochran v. Commonwealth, 122 Va. 801, 94 S. E. 329.
22. TESTIMONY OF EXPRESS AND RAILWAY AGENTS.
The testimony of an express agent that defendant re-
ceived from his certain shipments of whisky is admissible.
Fugate v. Commonwealth, 171 Ky. 227, 188 S. \V. 324.
In prosecution for having unlawful possession of intox-
icating liquors, the agent of the express company can tes-
tify as to the dates on, and amounts in, which accused re-
ceived liquors.
State v. Bradley, 109 S. C. 411, 96 S. E. 142.
And it was proper to admit testimony of railroad and
transfer agents showing that during the period in which
426 TITLE II— SEC. 33 OF ACT
defendants were charged with selling intoxicating liquors
illegally, they at different times received and delivered to
defendants large quantities of intoxicating liquors con-
signed to defendants or to other persons for them.
Gage v. State, 125 Ark. 256, 188 S. W. 803.
Proof of Handwriting, Signatures, etc. — A witness
who had examined a large number of delivery orders each
day for ten years, to determine whether the signatures there-
on were those of the consignees, is qualified to testify that
in his opinion the signatures on orders for liquor were all
written by the same person.
State v. Killeen (N. H.), 107 Atl. 601.
A former employee of the express company may identify
books and records offered in evidence as being the books
and records made and kept in the company's office, though
he did not actually make them himself.
Flowers v. Birmingham (Ala. App.), 83 So. 36.
Policy as to Baggage Containing Liquor. — It is not
error to refuse to allow the agent of the defendant railway
company to testify what his policy was, and what he had
done on previous occasions relative to baggage containing
whisky. (Compare Donaldson v. State, 3 Ga. App. 451, 60
S. E. 115).
Seaboard Air Line Railway v. State (Ga. App.), 97 S.
E. 549.
Testimony of Agent of Wholesale Drug Company. —
In prosecution for having possession of intoxicating liquors
with intent to dispose of them unlawfully, testimony of an
agent of a wholesale drug company that he always dealt
with accused for a retail drug company, that certain quan-
tities of alcohol and cologne spirits were sold to such drug
store on orders signed by accused, declaring an intent to
use same for chemical and mechanical purposes, and coupled
with complete identification of all sales not actually wit-
nessed by him, was not inadmissible as hearsay.
State v. Billingsley, 99 Wash. 445, 169 Pac. 845.
TITLE II— SEC. 33 OF ACT 427
23. PROOF OF LAWFULNESS OF POSSESSION.
Where the defendant claims that the whisky found in his
place of business was some that he ordered three weeks be-
fore for his own use, it is competent to show how long it
had been since he had ordered whisky prior to that order,
since that was a circumstance tending to rebut the statutory
presumption arising from the presence of whisky in his
place of business.
Freeney v. Jasper, 8 Ala. App. 469, 62 So. 385.
Poverty of Defendant as Showing Liquor Not In-
tended for Personal or Other Lawful Use. — In a pros-
ecution for the violation of the prohibition law, evidence as
to the quantity of intoxicating liquor, the number of the
deliveries of it to defendant within a short period, and as
to the meagerness of his means of making such purchases
for his personal use, was admissible as tending to show that
he received it for sale or other unlawful disposition.
Herring v. State, 11 Ala. App. 202, 65 So. 707.
Where on a trial for violating the prohibition law there
was evidence that accused on November 10th received four
cases of liquor, and on October 5th, 12th, 14th, 17th, 20th,
and 28th respectively, and that his only employment at that
time and on November 10th was that of a buggy boy, was
properly admitted as a basis for the inference that he was
receiving liquor for sale or other illegal disposition.
Watson v. State, 11 Ala. App. 199, 65 So. 689.
Evidence That Packages Marked for Personal Use.
— Evidence that each of the packages delivered to defendant
by the express agent was marked for personal use, as re-
quired by Ky. St. 2569b, subsec. 3, of an independent act
regulating transportation and delivery by carriers, was in-
admissible.
Combs v. Commonwealth, 171 Ky. 231, 188 S. W. 326.
24. SALES AS EVIDENCE OF UNLAWFUL POSSESSION.
Where a person is charged with the offense of unlawfully
keeping intoxicating liquor for sale, evidence of sales by
428 TITLE II— SEC. 33 OF ACT
him is admissible as a circumstance tending to prove the
crime charged.
State v. Gordon, 32 N. D. 31, 155 N. W. 59, Ann. Cas.
1918A. 442.
Kirk v. State, 14 Ala. App. 44, 70 So. 990.
Cheek v. State, 3 Ala. App. 646, 57 So. 108.
Spigener v. State, 11 Ala. App. 296, 66 So. 896.
Borok v. Birmingham, 191 Ala. 75, 67 So. 389, Ann.
Cas. 1916C, 1061.
A witness who has testified to purchasing whisky from de-
fendant on a particular occasion may also testify that he
purchased it on previous occasions, such testimony tending
to support the charge that defendant was keeping liquors
for sale contrary to law.
Spigener v. State, 11 Ala. App. 296, 66 So. 8%.
\Yhere the issue was whether defendant kept at his store-
house prohibited liquors with intent to sell the same con-
trary to law. a question to a witness, whether he bought
liquor at that location recently before the offense alleged and
after the passage of the ordinance, was an evidential fact
bearing on defendant's guilt.
Borok v. Birmingham, 191 Ala. 75, 67 So. 389, Ann.
Cas. 1916C, 1061.
Where proof is made that liquor was on several occa-
sions delivered to customers at the shop of the defendant,
it is immaterial that the liquor itself was stored at some
other place.
State v. Gordon, 38 N. D. 31, 155 N. W. 59, Ann. Cas.
1918A, 442.
Under a complaint which, besides charging the offense of
selling prohibited liquors, charged in different counts and
in the alternative in each of such counts of the offense of
keeping prohibited liquors for sale, evidence of several dif-
ferent sales at different times was admissible to show that
such liquors were kept for sale in violation of the statute.
Kirk v. State, 14 Ala. App. 44, 70 So. 990.
In a proceeding to search a hotel for liquors unlawfully
kept for sale or other disposition, under Act Aug. 25, 1909,
TITLE II— SEC. 33 OF ACT 429
(Gen. & Loc. Laws Sp. Sess. 1909, p. 74, § 22) the state
could show that liquors had recently been sold there, ana
hence it was proper to admit proof that the sheriff sent a
negro with no whisky on his person into the hotel, and re-
mained in front of and near the hotel until the negro re-
turned with whisky, and that he gave the negro money, and
directed him to go into the hotel and buy whisky and bring
it to him.
Cheek v. State, 3 Ala. App. 646, 57 So. 108.
Proof of Conspiracy to Sell.— In prosecution for un-
lawful possession of intoxicating liquors, evidence tending
to show that defendant and another were conspirators en-
gaging in the unlawful traffic of prohibited liquors was ad-
missible.
Campbell v. State (Ala. App.), 78 So. 715.
As Evidence of Unlawful Manufacture.— In such
prosecution testimony of a witness that he had purchased
from the defendant liquor of the same kind as defendant
was charged with making was admissible, though defend-
ant had been acquitted of selling liquor to the witness.
Lowery v. State, 135 Ark. 159, 203 S. W. 838.
25. UNLAWFUL ISSUANCE OF PRESCRIPTIONS.
Diploma as Evidence of License to Practice. — The
testimony of a physician that he has a diploma authorizing
him to practice medicine is incompetent to show that he is
a licensed physician.
McAllister v. State, 156 Ala. 122, 47 So. 161.
Druggist's Record; Best Evidence; Oral Testimony.
— Where every reasonable effort by means of a subpoena
duces tecum had been made to have the record book of a
drug store and its prescription file brought into court in a
prosecution for having issued a prescription without hav-
ing reason to believe that the person to whom it was issued
was sick, etc., oral testimony as to the contents of the rec-
ord and file was admissible.
Seattle v. Hewetson, 95 Wash. 612, 164 Pac. 234.
430 TITLE II— SEC. 33 OF ACT
Other Prescriptions; Number of Prescriptions. — In
a prosecution of a physician for having issued a prescrip-
tion for whisky without having reason to believe that the
person to whom it was issued was sick, or that the liquor
was required as medicine, testimony relating to prescrip-
tions other than that on which the charge is laid is admis-
sible as material on defendant's good faith.
Seattle v. Hewetson, 95 Wash. 612, 164 Pac. 234.
Evidence as to the number of prescriptions issued by him
about the time of the offense charged is admissible on the
question of good faith.
Everett v. Cowles, 97 Wash. 396, 166 Pac. 786.
Seattle v. Hewetson, 95 Wrash. 612, 164 Pac. 234.
"The trial judge permitted the introduction of testimony
showing the giving of some 56 other prescriptions than
those given to the party named in the information and at
about the same time. Appellant had issued to his patient
5 prescriptions between the 26th day of August, 1917, and
September 11, 1917, each calling for one quart of whisky.
On each prescription the patient is directed to take one ounce
of the remedy in water three times a day. As these pre-
scriptions obviously call for a greater quantity of liquor
than was necessary to meet the needs of the patient if 'taken
as directed,' the good faith of the physician, the issue in
this class of cases, was clearly tendered by the state, and to
further sustain the issue the other prescriptions were offered.
'The rule is that, in cases of this character, such evidence is
competent. The real issue in such a case is whether the
prescription was given in good faith, and, as bearing upon
this question, the number of prescriptions given by the ac-
cused, within a specified time, for intoxicating liquor, to va-
rious persons, as found on the file of the druggist, in whose
store the appellant kept his office, is competent.' Seattle v.
Hewetson, 95 Wash. 612, 164 Pac. 234; Everett v. Cowles,
97 Wash. 396, 166 Pac. 786. It is urged that this procedure
is violative of the rule that proof of crimes independent
and in no way related to the crime charged cannot be es-
tablished to prove a specific offense. It would be so if the
crime charged rested alone in the doing of the act charged.
But the gravaman of the offense is not in the doing of the
TITLE II— SEC. 33 OF ACT 431
deed, but in the faith in which it was done. The rule seems
to have grown out of the necessities of the statute, for the
act itself is presumptively a lawful act sanctioned by stat-
ute. It is rendered unlawful when, and only when, the
writer of the prescription abuses the confidence that is re-
posed in him and by the injection of the subtle quality of
bad faith thwarts the police power of the state. From the
nature of things, good or bad faith can only be proved by
resort to circumstances and sidelights. If it were otherwise
— if the mere giving of a prescription or a number of pre-
scriptions by a licensed physician would bar further in-
quiry— the law would be emasculated of its purpose. It is
not going beyond the range of judicial vision to say that
liquor has not always been regarded as a cure-all or touch-
stone of health, but that it has grown in popular favor as a
remedy as the chance of procuring it has grown remote ;
and, although a physician who prescribes it may be imposed
upon at times, a general dispensation of the remedy at or
about the time charged is sufficient to put him to the defense
of his good intention before a jury of his countrymen."
State v. Raub (Wash.), 173 Pac. 1094.
26. MISCELLANEOUS QUESTIONS OF RELEVANCY.
Defendant's Good Character. — In a prosecution of a
physician for having prescribed whisky for a patient with
good reason to believe that the latter intended to use it as a
beverage, the jury could consider evidence of defendant's
good character, not only in case of doubt of guilt, but also
to create a doubt.
People -v. Humphrey, 194 Mich. 10, 160 N. W. 445, 446.
VII. Weight and Sufficiency of Evidence.
1. WEIGHT OF CIRCUMSTANTIAL EVIDENCE.
A conviction for a violation of the liquor laws, either
unlawful possession, possession for the purpose of unlaw-
ful sale, or for the unlawful sale itself, may be supported
by circumstantial evidence alone.
Reismier v. State, 148 Wis. 593, 135 N. W. 153.
Butler v. Washington, 11 Ga. App. 133, 74 S. E. 858.
Cage v. State, 11 Ga. App. 318, 75 S. E. 160.
Smith v. State, 21 Ga. App. 143, 94 S. E. 62.
432 TITLE II— SEC. 33 OP ACT
Verdicts may rest upon rightful inference as well as
upon direct testimony.
Robilio v. United States (C. C. A.), 259 Fed. 101.
Laughter v. United States (C. C. A.), 259 Fed. 94.
In determining whether the evidence is sufficient to sustain
the verdict of the jury, or the finding of the court, the court
will consider, not only the positive testimony of the witnesses,
but also such inferences as flow naturally from established
facts. Chicago, etc., R. Co. v. Lake County, etc., Sav. Co.,
186 Ind. 358, 362, 114 N. E. 454; Southern Products Co. v.
Franklin, etc, Co, 183 Ind. 123, 124, 106 N. E. 872; Union
Nat. Bank v. Finley, 180 (Ind. 470, 475, 103 N. E. 110;
Goodman v. State (Ind.), 121 N. E. 826. The evidence is
amply sufficient to sustain the finding of the Marion crimi-
nal court. No error appearing in the record the judgment
is affirmed.
Schulmeyer v. State (Ind.), 124 N. E. 490.
A charge of having possession of spirituous liquor for
purpose of sale may be supported by circumstantial, as well
as by direct evidence.
Woods v. Commonwealth, 171 Ky. 200. 188 S. W. 350.
The corpus delicti may be established by circumstantial
evidence; its sufficiency being for the jury.
Pappenburg v. State, 10 Ala. App. 224, 65 So. 418.
Reynolds v. State, 18 Ariz. 388, 161 Pac. 885. (Un-
lawfully introducing liquor into state.)
In a prosecution for the unlawful keeping of intoxicating
liquor for sale, circumstantial evidence proving facts which
without doubt lead to the conclusion that defendant did
have possession of the intoxicating liquor as alleged, and
kept it at the place charged for the unlawful purpose
charged, and that he was making such sales in violation of
such law, is sufficient competent evidence to support the
finding of guilt.
Schulmeyer v. State (Ind.), 124 N. E. 490.
A degree of evidence, circumstantial and insufficient to
convict of other offenses, may be sufficient to show the of-
TITLE II— SEC. 33 OF ACT 433
fense of having intoxicating liquors in possession for un-
lawful sale.
Lemon v. Commonwealth, 171 Ky. 822, 188 S. W. 858.
But when such evidence is relied on it must be inconsis-
tent with defendant's innocence.
Flood v. State, 12 Ga. App. 702, 78 S. E. 268.
Thus where the evidence in a prosecution for possessing
and controlling intoxicating liquors as to defendant's con-
nection with the whisky was entirely circumstantial and
failed to exclude every reasonable hypothesis save that of
her guilt and was consistent with the theory of her inno-
cence, a denial for her motion for a new trial was erroneous.
Mullins v. State (Ga. App.), 100 S. E. 755.
A judgment of conviction for possession of intoxicating
liquor with unlawful intent, resting solely upon slight cir-
cumstantial evidence, which is offset by the positive denial
of the defendant, whose good character is unquestioned, is
not warranted by the evidence.
Silva v. State, 11 Okla. Cr. App. 12, 141 Pac. 235.
While a sale may be proved by circumstantial evidence,
the circumstances must warrant the inference that there was
a seller and a purchaser and compensation for the thing
sold.
Scoggin v. Morrilton, 124 Ark. 585, 187 S. W. 445.
Corroboration. — \Yhere there was direct evidence of
violation of the local option law, the defendant's possession
of an unusual quantity of liquor, which he permitted to be
drunk in the house, constituted corroborative circumstances,
justifying instructions on circumstantial evidence.
People v. Silver, 286 111. 496, 122 N. E. 115.
2. EVIDENCE OF DETECTIVE, ACCOMPLICE, ETC.
The testimony of a detective employed by an anti-saloon
league in proceedings to enjoin liquor nuisances is to be
weighed in the light of that fact and of his interest in the
result of the case.
Barber v. Buonanni Co., 179 la. 642, 161 X. W. 688.
—28
434 TITLE II— SEC. 33 OF ACT
The uncorroborated evidence of a detective, however, if
believed by the jury, is sufficient to support a conviction.
Condit v. State, 130 Ark. 341, 197 S. W. 579.
The uncorroborated evidence of a detective who admitted
that he induced accused to make the sale in order to detect
him in a violation of law, though contradicted by accused,
will support a conviction for violation of the local option
law.
Looper v. State, 74 Tex. Cr. App. 144, 167 S. W. 432.
In a nuisance prosecution for selling intoxicating liquors,
testimony of a so-called informer employed for the ex-
press purpose of procuring evidence, who was corroborated
to some extent, warrants a conviction.
State v. Hoffman (Ore.), 166 Pac. 765.
The requirement of corroboration of an accomplice's tes-
timony does not apply to testimony of a mere purchaser of
liquor illegally sold, for, not being a participant in the of-
fense, he cannot be treated as an accomplice.
William v. State, 129 Ark. 344, 1% S. W. 125.
Witnesses who procure the sale of whisky to secure evi-
dence against defendant are not accomplices as a matter of
law requiring corroboration of their testimony.
Huggins v. State (Tex. Cr. App.), 210 S. W. 804.
By Texas Pen. Code 1911, art. 602, a stool pigeon, who,
at the direction of an officer, purchased intoxicating liquor
from defendant, who sold it in violation of the local option
prohibition law, was not an accomplice of defendant, to re-
quire corroboration of his testimony.
Canales v. State (Tex. Cr. App.), 215 S. W. 964.
And it has been held that though a purchaser of spirit-
uous liquor from one who sells it in violation of law partici-
pates in the unlawful sale, and is an accomplice, a jury
may convict on his uncorroborated testimony, if satisfied be-
yond reasonable doubt that his testimony is true.
State v. Ryan, 1 Boyce's (24 Del.) 23, 75 Atl. 869.
TITI.E II— SEC. 33 OF ACT 435
3. To PROVE; INTOXICATING CHARACTER.
Marks and Labels.— The label upon a bottle required by
the Pure Food Laws of the United States (U. S. Comp. St.
§§ 8717-8728), stating the component parts of the contents
of said bottle, is presumptive evidence of what the bottle
contains, and such bottle, contents, and label thereon may
be legally introduced in evidence in a prosecution for a vio-
lation of the prohibitory liquor laws of this state, and, if not
rebutted, such evidence is prima fade sufficient to establish
the character of the contents of such bottle in so far as the
statement contained in said labels are required by law.
Gilliland v. State (Okla. Cr. App.), 179 Pac. 786.
Bill of Lading Calling for Whisky.— Where a bill of
lading issued by a common carrier calls for the delivery of
a certain package said to contain whisky, and a package is
found in the possession of the carrier corresponding in
number and weight to the description in the bill of lading
and having thereon marks indicating that it contains intox-
icating liquor, a prima -facie case is made out that the pack-
age in fact contains such liquor.
Shaw v. Atlanta, 11 Ga. App. 391, 75 S. E. 486.
Looks, Color, Taste, Smell, etc., as Proof That Liq-
uor Was Whisky.— Proof that a defendant sold "liquor"
is sufficient to show, in the absence of adverse testimony,
that he sold intoxicating liquor. Especially is this true where
the proof further shows that it looked like rye whisky.
Carswell v. State, 7 Ga. App. 198, 66 S. E. 488.
In a prosecution for the sale of spirituous and intoxicat-
ing liquor called whisky in violation of the statute, evidence
that the liquor sold, without a license, to the prosecuting
witnesses, was intoxicating, that it looked like whisky and
tasted like whisky, is sufficient to sustain a conviction.
White v. State, 88 Neb. 177, 129 N. W. 259.
Nixon v. State, 92 Neb. 115, 138 N. W. 136.
Where it was shown that, at the time accused was seen
to deliver a half pint bottle containing liquor, he had in the
buggy in which he was then riding two suit cases contain-
436 TITLE II— SEC. 33 OF ACT
ing half-pint bottles of whisky, it sufficiently appeared that
the liquor in the bottle so delivered was whisky.
Snead v. State, 7 Ala. App. 118, 61 So. 473.
Testimony that a witness purchased whisky from accused
supported a conviction for selling intoxicating liquor, al-
though the witness was unable to state whether the liquor
purchased contained one-half of one per cent of alcohol or
not; this not showing that he did not know that it was
whisky.
Shaneyfelt v. State, 8 Ala. App. 370, 62 So. 331.
Where there was conflicting testimony as to whether the
bottle admitted in evidence was the same that was taken
from defendant's person, and whether it contained the same
whisky, or any whisky, it was not error for the court to
charge : "this case is not, as has been said, a wholly circum-
stantial case. There are circumstances, but the mass of tes-
timony is conflicting positive testimony."
Guignard v. United States (C. C. A.), 258 Fed. 607.
Looks, Taste, Color, Smell, etc., as Proof That Liq-
uor Was Beer. — Upon trial of an indictment for selling
intoxicating drinks if the evidence show a sale of beer, the
state has made a prima facie case for conviction, and need
not give evidence that the beer is intoxicating; but the de-
fendant may give evidence to prove that the beer sold is not
intoxicating.
State v. Durr, 69 W. Va. 251, 71 S. E. 767, 46 L.
R. A., N. S., 764.
While the courts do not take judicial cognizance of the
fact that liquor not otherwise denominated than as beer is
intoxicating (Lumpkin v, Atlanta, 9 Ga. App. 470, 472, 71
S. E. 755), still, in a prosecution under a municipal ordi-
nance forbidding the keeping of intoxicants for the pur-
pose of illegal sale, evidence to the effect that the beer al-
leged to have been purchased by a witness was the kind that
he bought in barrooms, and that six or seven bottles of such
beer would make him drunk, may be sufficient to support
the inference that the liquid in question was intoxicating.
Bledsoe v. Jackson, 16 Ga. App. 479, 85 S. E. 676.
TITLE II— SEC. 33 OF ACT 437
In a proceeding for contempt for violating an injunction
against maintaining an intoxicating liquor nuisance, evi-
dence that a liquor sold looked like beer, tasted like beer,
and that the witness believed it was beer, and that there
was malt in the liquor sold to another witness, is sufficient
to justify a finding of the sale of intoxicating liquor.
State v. Trione, 97 Kan. 365, 155 Pac. 29.
In a prosecution for the selling of intoxicating malt liq-
uor without license, where the witnesses testified they did
not know whether the liquor was intoxicating or not, the
evidence is insufficient to sustain a conviction.
Wales v. State (Tex. Cr. App.), 212 S. W. 503.
To Prove Jamaica Ginger an Intoxicant. — The evi-
dence examined and held to be sufficient to sustain a find-
ing that Jamaica ginger is an intoxicating liquor, notwith-
standing it has a medicinal use, the formula for its prepa-
rations given in the United States dispensatory, and it is
here classified with lemon, vanilla, cinnamon, cloves, cam-
phor, cologne, paregoric, wintergreen and like tinctures, ex-
tracts, and essences.
State v. Miller, 92 Kan. 994, 142 Pac. 979, L. R. A.
1917F, 238, Ann. Cas. 1916 B, 365.
4. To PROVE MANUFACTURE OR POSSESSION OF APPARATUS.
Where a still was in active operation and defendants,
charged with unlawful manufacture of spirituous liquors,
were the only persons present, jury was warranted in re-
turning verdict of guilty; the inference being permissible
that defendants were in charge of and operating the still.
State v. Ogleston (N. C), 98 S. E. 537.
Upon a trial under an accusation based upon section 22
of the act of the General Assembly of Georgia approved
March 28, 1917 (Acts of Extraordinary Session March
20-28, 1917, p. 18), when the evidence for the state shows
that the apparatus for the distilling or manufacturing of
whisky was found upon the defendant's premises, and that
defendant was in actual possession of the premises, such
evidence, by the express terms of the act, is prima facie
evidence that the defendant had knowledge of the fact that
438 TITLE II— SEC. 33 OF ACT
the apparatus was located upon his premises; and the bur-
den of proof is then upon him to show that he had no such
knowledge.
Carter v. State, 21 Ga. App. 493, 94 S. E. 630.
The defendant was indicted for distilling, manufacturing
and making alcoholic, intoxicating, and spirituous liquors,
and malted liquor and mixed liquor and beverages, part of
same being alcoholic. The jury were authorized, and did
find, that the defendant had in his house an outfit that had
been when assembled, and could be, used to distill whisky,
and had in his house beer that is used for distillation; that
such 'beer was intoxicating; and that such concoction at
the time it was so found was fermenting in a barrel, over
the head of which a quilt was placed; that the still outfit
had been in recent use, and that "low wine," or the first run
of whisky, had been through the still and pipes. Such evi-
dence, under appropriate charge of the court, was sufficient
to authorize a verdict of guilty against the defendant. The
trial judge having approved the verdict and no error of law
being assigned which requires a new trial, the judgment is
affirmed.
Jenkins v. State (Ga. App.), 100 S. E. 763.
Evidence that apparatus for manufacturing liquors pro-
hibited by law and a barrel of "beer," which had fermented
and was alcoholic and would produce intoxication were
found in a house on the premises of the defendant where
he lived, and he admitted that such apparatus and "beer"
were in his possession, and that he intended to use the same
for the purpose of making liquor, is sufficient to authorize
his conviction of making liquor in violation of law.
Williams v. State (Ga. App.), 99 S. E. 711.
Illicit Distilling. — Evidence that witnesses found
whisky, molasses, meal, a 60 gallon barrel half full of meal
and molasses, and a 20 gallon iron pot on the fire full of
stuff which looked as if it had been boiled, and which de-
fendant overturned before they could secure a sample, held
sufficient to sustain a conviction for illicit distilling.
Smiling v. United States (C C. A.), 258 Fed. 235.
TITLE II— SEC. 33 OF ACT 439
The testimony against the defendant was, in substance,
this: On March 20, 1918, the witnesses Fanning, Austin,
and Coleman, federal and state officers, and one Whitworth,
while driving along a community road in Lexington county
in a northerly direction toward Columbia, saw two men
come out of a swamp about 250 yards from the road they
were on. The automobile was stopped, and Austin and
Fanning pursued the two men, who had turned and run
back into the swamp upon seeing them. By tracks and the
noise he made in going through the thick undergrowth,
Fanning was able to follow defendant across the swamp
where he had stopped upon being hailed. Fanning identi-
fied him as the taller of the two men he had seen run from
the opposite side of the swamp. Defendant was then
brought back to the point from which he had run, and
thence was taken some 50 yards along the creek or swamp
to the still which he is charged with having in his posses-
sion and operating. At the still, two fermenters, some beer,
caps, several jugs containing a small quantity of illicit
whisky, a worm, and other distilling apparatus were found.
The pots, or stills, were warm, and their supports too hot
to handle. Defendant was placed under arrest and carried
back to the automobile. A flask containing a small quantity
of illicit whisky was found on him, and his clothes were
soiled with soot and beer at the time of his arrest. Held
sufficient to support a conviction.
Guignard v. United States (C. C. A.), 258 Fed. 607.
Attempts to Manufacture. — In a prosecution for man-
ufacturing liquor in violation of Pub. Laws of N. Car. 1917,
c. 157, the state need not show spirituous liquor was ac-
tually produced at the still where defendant was arrested.
If the persons operating it were caught in the act of mak-
ing the liquor, they could be convicted, though the process
had not reached its final stage.
State v. Homer, 174 N. C. 788, 94 S. E. 291.
Under an indictment for manufacturing intoxicating liq-
uor the defendant was found guilty of "attempting to make
whisky." The evidence was amply sufficient to show that
the accused had done more than make mere preparation for
the commission of the crime, and that he was guilty of
440 TITLE II— SEC. 33 OF ACT
overt acts in furtherance of his attempt to manufacture in-
toxicating liquor. Held, that the evidence was sufficient to
support a conviction, and that the trial judge did not err in
overruling the motion for a new trial based upon the gen-
eral grounds that the verdict was contrary to the evidence,
etc.
Pruett v. State, 18 Ga. App. 313, 89 S. E. 378.
Permitting Distilling Apparatus on Premises. — Un-
der indictments for permitting or allowing any one to have,
possess, or locate on his premises any apparatus for dis-
tilling or manufacturing liquor, etc., evidence that there was
a copper still in running order, except the worm and con-
densor, did not show that a "complete still" was found on
the premises, as alleged in indictment.
Davis v. State (Ga. App.), 100 S. E. 782.
Under a general indictment for the possession of intoxi-
cating liquors, the state may show any number of "posses-
sions" of the liquors.
Autrey v. State (Ga. App.), 99 S. E. 389.
5. To PROVE SALE OR OFFERING FOR SALE.
While a sale may be proved by circumstantial evidence,
the circumstances must warrant the inference that there was
a seller, a purchaser, and a consideration for the thing sold.
Scoggin v. Morrilton, 124 Ark. 585, 187 S. W. 445.
It is not necessary that any particular price should be
agreed on.
Smith i'. State, 9 Ga. App. 230, 70 S. E. 969.
Finch v. State, 6 Ga. App. 338, 64 S. E. 1007.
Cage v. State, 11 Ga. App. 318, 75 S. E. 160.
And a sale on credit is as much a violation of the law as
a sale for cash.
Finch v. State, 6 Ga. App. 338, 64 S. E. 1007.
Cage v. State, 11 Ga. App. 318, 75 S. E. 160.
It is immaterial that the seller made no profit on the trans-
action, or that the liquor did not belong to him. Neither
of these elements is essential to a sale, and evidence on
TITLE II— SEC. 33 OF ACT 441
these points is immaterial for the purpose of proving or
disproving a sale.
Bird v. State (Tex. Cr. App.), 206 S. W. 844.
"But it is indispensable to the maintenance of this ver-
dict and judgment that there should have been substantial
evidence of a sale or of an offer to sell some of the whisky
by the defendant. 'A sale is a contract for the transfer of
property from one person to another for a valuable con-
sideration.' 7 Words and Phrases, 'Sale,' pp. 6291, 6292.
'To constitute such a sale, there must be the assent of the
two parties ; there must be a vendor and a vendee. But no
words need be proved to have been spoken. A sale may
be inferred from the acts of the parties, and no disguise
which the parties may attempt to throw over the transac-
tion, with a view of evading the penalty of the law, can
avail them, if in truth such sale is found to have taken
place.' Commonwealth v. Thayer, 49 Mass. (8 Mete.) 525,
526. But one party cannot make a contract of sale. No
such contract can be made without assent of the minds of
two parties at the same time to the sale and to the terms of
the sale, to the subject matter and the consideration of the
sale; and as the alleged contract here was illegal, and its
making criminal, the legal presumption was that the de-
fendant did not make it, and this presumption prevailed
until he was proved to have done so beyond a reasonable
doubt. The burden was upon the government to make this
proof, and evidence that is as consistent with innocence as
with guilt is insufficient to sustain a conviction."
Scoggins v. United States (C. C. A.), 255 Fed. 825,
827.
Evidence that money passed and whisky was delivered
as a single transaction is sufficient to support a verdict.
Donaldson v. State, 3 Ga. App. 451, 60 S. E. 115.
Hollingsworth v. State, 17 Ga. App. 725, 88 S. E. 213.
Cowart v. State, 18 Ga. App. 677, 90 S. E. 286.
Evidence Held Sufficient to Show Guilt.— Evidence
showing that witness laid a dollar on defendant's leg while
latter was sitting in an automobile, and that they went to
defendant's house, and defendant gave him a pint bottle,
shown to contain whisky, all of which the defendant de-
442 TITLE II— SEC. 33 OF ACT
nied, held to justify a conviction on charge of engaging in
business of selling intoxicating liquors without license; the
question being one of credibility of witnesses.
State v. Hays, 38 S. D. 546, 162 N. W. 311.
Uncontradicted testimony that defendant, while operat-
ing a rooming house, told guests that he would have some
whisky the following day, which he would retail, and that
guest, given a marked bill by police, gave it to defendant
and received a bottle of whisky and his change, and that
whisky was found in the house, warranted a conviction of
an unlawful sale.
Holden v. State (Okla. Cr. App.), 180 Pac. 969.
Corroborating Prima Facie Presumption from Pos-
session of Tax Receipt. — In a prosecution for unlaw-
fully selling intoxicating liquors, evidence, when coupled
with the prima facie presumption of guilt raised by ac-
cused's possession of a federal license, held sufficient to
support a conviction.
Haar v. State, 14 Ga. App. 548, 81 S. E. 811.
Evidence of Offer to Sell. — Evidence of a single sale of
whisky is sufficient to sustain a charge of offering it for
sale, since an offer for sale is necessarily included in the
completed sale ; it being none the less an offer, even though
it was made in response to an indicated desire by another
to buy.
Slaten v. State, 10 Ala. App. 185, 65 So. 85.
Evidence Held Insufficient to Show Guilt. — In a pros-
ecution, under Comp. St. §§ 5971, 5973, for selling whisky
in less quantities than five wine gallons without paying a
tax as a retail liquor dealer, evidence held insufficient to
show the sale and sustain a conviction.
Scoggins v. United States (C. C. A.), 255 Fed. 825.
In a prosecution for the selling of malt intoxicating liq-
uor without license, a showing only by witness' belief that
defendant did not have a license is insufficient to sustain a
conviction ; the statute requiring a license for the selling
of malt drinks, both intoxicating and nonintoxicating.
Wales v. State (Tex. Cr. App.), 212 S. W. 503.
TITLE II— SEC. 33 OF ACT 443
In prosecution for violating prohibition law, by selling or
otherwise disposing of bottle of whisky to certain person,
evidence that witness had visited defendant with such per-
son, who had produced bottle of whisky after the two had
left defendant and gone about quarter of mile from her
house, is insufficient for submission to jury of whether liq-
uor had been received from defendant, where witness did
not know but what such person had liquor before going to
defendant's house.
Braxton r. State (Ala. App.), 82 So. 657.
6. To PROVE UNLAWFUL POSSESSION.
See also ante, "Presumption and Burden of Proof."
Necessity for Proving Guilty Knowledge, Purpose
or Intent. — \Yhether mere proof of possession of intoxi-
cating liquors above a certain specified quantity or in any
quantity is sufficient to make out a case against the accused
depends upon the statute in that jurisdiction. Unless there
is some provision in the statute upon which to base it, mere
proof of possession by the accused of intoxicating liquor,
without proof of the purpose cf selling or giving away the
same in violation of law, will not support a conviction.
Jackson v. State, 107 Miss. 153, 65 So. 123.
McAlester v. State (Okla. Cr. App.), 174 Pac. 1106,
1107, and cases cited.
"To justify or sustain a conviction of having possession
of intoxicating liquors with intent to violate any of the
provisions of the prohibitory law, there must be evidence
sufficient to prove possession, and also evidence of the crim-
inal intent. When the verdict is manifestly contrary to the
evidence, the judgment of conviction will be reversed."
Ward v. State (Okla. Cr. App.), 175 Pac. 60.
The evidence in a Georgia case conclusively showing that
the intoxicating liquor was found in the defendant's place,
but that it was there without his knowledge or consent, and
that he was in no wise connected therewith, the verdict of
conviction was held to be without evidence to support it,
and was therefore unauthorized by law.
Sewell v. State, 11 Ga. App. 754, 75 S. E. 1135.
444 TITLE II— SEC. 33 OF ACT
Where there was no evidence to authorize the inference
that the accused in any way acquiesced or participated in
the illegal sales which necessarily constituted the eviden-
tiary foundation of the charge of keeping intoxicants for
illegal sale, and no testimony which indicated that he knew
that these sales were to be made or had been made, the con-
viction was held to be unwarranted.
Pitts v. Atlanta, 14 Ga. App. 399, 81 S. E. 249, distin-
guishing Wright v. State, 14 Ga. App. 185, 80 S. E.
544; Deal v. State, 14 Ga. App. 121, 80 S. E.-537.
But under the ruling of the majority of the court in Co-
hen v. State, 7 Ga. App. 5, 65 S. E. 1096, one who inten-
tionally carries whisky to his place of business, and keeps it
there for what reason or for what purpose, may be con-
victed of the offense of keeping intoxicating liquors on hand
at his place of business.
Nowell v. State, 18 Ga. App. 143, 88 S. E. 909.
Sufficiency to Show" Guilty Knowledge, Purpose or Intent ;
Generally.
Evidence Held Sufficient. — In a prosecution for stor-
ing intoxicating liquors, where it appeared that the building
in which the hiding place was found had formerly been used
as a saloon by the present occupant; that the liquor had
affixed to it a tag with the name of the accused; that the
quantities were too large to justify the inference that it
was kept for medicinal purposes ; that the opening to the
hiding place was under a rug in the floor; that it bore evi-
dence of having been frequently opened ; that intoxicating
liquor had been served on the premises ; — it was not error
to fail to direct a verdict of acquittal.
People v. Galliari, 196 Mich. 475, 163 N. W. 154.
The testimony of several witnesses, to the effect that
when they made a raid on defendant's place of business
they found him in the rear of his store breaking up bottles
of corn whisky, authorized the verdict of guilty of having
liquor in his possession ; and the trial judge did not err in
overruling the motion for new trial.
Parks v. State, 21 Ga. App. 506, 94 S. E. 628, 629.
TITLE II— SEC. 33 OF ACT 445
Where there was evidence that liquor in unlawful quan-
tities was found on premises searched by officers, and de-
fendant admitted that premises and liquor seized were his,
and made no defense to prosecution for its unlawful pos-
session, a conviction would not 'be disturbed for want of
sufficient proof of the corpus delicti.
High v. State (Okla. Cr. App.), 180 Pac. 572.
Evidence held sufficient to show unlawful possession with
intent to sell in the following cases:
Davis v. State (Okla. Cr. App.), 182 Pac. 909.
Pate v. State (Okla. Cr. App.), 180 Pac. 559.
Belchner v. State (Okla. Cr. App.), 183 Pac. 925.
State v. Baldwin (N. C.), 100 S. E. 345.
Stubblefield v. State (Okla. Cr. App.), 180 Pac. 252.
Hendrix v. State (Ga. App.), 100 S. E. 55.
Stubblefield v. State (Okla. Cr. App.), 180 Pac. 251.
Morris v. State (Okla. Cr. App.), 180 Pac. 561.
Davis v. State (Okla. Cr. App.), 182 Pac. 908.
Evidence Sufficient to Go to the Jury.
Freeman v. State (Okla. Cr. App.), 183 Pac. 626.
State v. Bachtold (Wash.), 180 Pac. 896.
Under Rem. Code 1915, § 6262 — 23, making possession
of more than two quarts of intoxicating liquor prima facie
evidence that it was held for unlawful sale, proof that 23
quarts of whisky were found in defendant's possession is
sufficient to take to the jury the question of defendant's in-
tention to sell.
State v. Conner (Wash.), 182 Pac. 602.
Evidence Insufficient to Sustain Conviction.— The
unloading by a public drayman of a barrel of whisky on a
vacant lot is not sufficient proof, against the owner of the
lot, of the unlawful possession with intent to sell whisky
to warrant a conviction of the owner of such lot, in the
absence of proof that the whisky belonged to him, or that
acts of ownership were exercised by him over the whisky.
Telico v. State, 13 Okla. Cr. App. 608, 166 Pac. 76.
The accused was convicted of keeping intoxicating liq-
uors in his place of business. The evidence shows that he
446 TITLE II— SEC. 33 OF ACT
received a package of whisky by express and delivered it
to a hackman, with instruction to take it to his residence
and to deliver it to his wife. The hackman carried the
whisky to the home of the accused, and, finding, no one
there, took it across the street and deposited it in a restau-
rant, which was being conducted by the accused. The ac-
cused was absent, and did not know that the hackman had
not left the whisky at his residence, but had deposited it
in the restaurant. About 10 minutes after the whisky was
left in the restaurant, its presence was discovered by a po-
liceman, and the accused was arrested while on his way to
the restaurant from some point in the city. There was no
evidence that the accused knew until after his arrest that
the whisky had been placed in the restaurant. Held that
the conviction was unauthorized, and should have been set
aside on motion for a new trial.
Johnson v. State, 13 Ga. App. 654, 79 S. E. 758.
Smith v. State (Okla. Cr. App.), 182 Pac. 730.
Inference from Mere Possession Not Conclusive.—
Where one is charged with the offense of keeping on hand
at his place of business alcoholic, spirituous, malt, or intox-
icating liquors prohibited by law, and intoxicating liquors
are shown to have been found at his place of business, such
evidence is sufficient to support the inference that the for-
bidden liquors were kept by the owner of the place of
business, but such inference is not conclusive, for it may be
shown, among other things that the forbidden liquors were
not the property of the accused, that they had been tem-
porarily deposited in his place of business by some other
person without his knowledge or consent and that the
owner of the place of business had no knowledge of their
presence or existence.
Lewis v. State, 6 Ga. App. 205, 64 S. E. 701.
Autrey v. State, 18 Ga. App. 13, 88 S. E. 715.
Property Not Used Exclusively as Dwelling. — Where
a building was not used exclusively for a dwelling, the
keeping therein of alcoholic liquors or beverages, forbid-
den by the laws of the state to be manufactured, sold, or
otherwise disposed of, was pr'mia facie evidence that the
TITLE II— SEC. 33 OF ACT 447
same was kept for sale or with intention to sell contrary to
law.
Jones r. Montgomery (Ala. App.), 77 So. 969.
Thomas v. State, 13 Ala. App. 246, 68 So. 799.
Johns v. State, 13 Ala. App. 283, 69 So. 259.
Evidence of such possession at a place other than in his
dwelling while sufficient to sustain a conviction of keep-
ing or having in possession for sale, does not sustain a con-
viction of an actual sale.
Johns v. State, 13 Ala. App. 283, 69 So. 259.
Sufficiency to Prove Place a Dwelling. — Where ac-
cused lived in a house containing two rooms, one of which
was not occupied, and the other containing a bed, stove,
trunk, and an ice box, and the sheriff found in the house a
number of barrels labeled "beer," and containing bottles
labeled "beer," and also beer bottles in the ice box, the jury
could find that the house was a place not used "exclusively"
as a dwelling within Act of 1909 (Sp. Sess.) p. 64, § 4 pro-
viding that the keeping of prohibited liquors in a building
not used exclusively for a dwelling shall be prima facie evi-
dence that they are kept for sale.
Carmichael v. State, 11 Ala. App. 209, 65 So. 694.
Proof of Actual Sale Unnecessary. — The offense of
keeping intoxicating liquors for unlawful sale may be es-
tablished without evidence of either a sale or an attempt to
sell.
Commonwealth v. Tay, 146 Mass. 146, 15 N. E. 503.
Commonwealth v. Ahern, 228 Mass. 547, 117 N. E. 827.
This is also true under the Kentucky statute; evidence
of possession with intent to sell being sufficient.
\Yilson v. Commonwealth, 181 Ky. 370, 205 S. W. 391.
Proof of One Sale Sufficient. — Where one is charged
with keeping a liquor nuisance, proof that liquor was ac-
tually sold by him upon his hotel premises, is conclusive
proof that he kept such liquor with the intent to sell.
State v. Jarvis (la.), 165 N. W. 61.
448 TITLE II— Sec. 33 OF ACT
Where the accused is charged with a violation of a valid
municipal ordinance prohibiting the keeping in possession
of intoxicating liquors for the purpose of illegal sale, the
possession of the liquor and proof of one sale will author-
ize a conviction.
Sawyer v. Blakely, 2 Ga. App. 159, 58 S. E. 399.
Cooper v. Ft. Valley, 13 Ga. App. 169, 78 S. E. 1097.
Seabrooks v. Macon, 17 Ga. App. 348, 86 S- E. 781.
Jefferson v. Perry, 18 Ga. App. 689, 90 S. E. 365.
"Under repeated rulings of the Supreme court and of this
court, one sale of whisky is sufficient to authorize a mayor
or recorder, sitting as both judge and jury, to find that the
seller had the whisky for the purpose of sale."
Jefferson v. Perry, 18 Ga. App. 690, 90 S. E. 366.
In prosecution under Rev. St. of Me. c. 23, § 1, provid-
ing that all places used for the illegal sale or keeping of in-
toxicants are common nuisances, the jury may, from a sin-
gle act of keeping or selling, be justified in finding a custom
or habit, or keeping, or selling essential to conviction.
State v. Gastonguay (Me.), 105 Atl. 402.
Sufficiency of Railway or Express Receipts to Show
Unlawful Possession or Receipt. — In prosecution for the
unlawful receipt of liquor from a transportation company,
affidavits of accused, signed when receipting for liquor,
were insufficient, standing alone, to prove the corpus delicti.
Cochran v. Commonwealth, 122 Ya. 801, 94 S. E. 329.
And in such prosecution express records, showing receipt,
by some person having the same name as accused, of whisky
in excess of one quart within one calendar month, were
prima facie evidence of the corpus delicti, which, in the ab-
sence of rebutting evidence, became conclusive.
Cochran v. Commonwealth, 122 Va. 801, 94 S. E. 329.
Large or Unusual Quantity as Evidence of Unlaw-
ful Purpose. — Ten gallons of whisky is an unusual quan-
tity to be found in a private dwelling house, within Code,
§ 2427, making finding of unusual quantities presumptive
evidence that the liquors are kept for unlawful sale.
McMillan v. Anderson, 183 la. 873, 167 N. W. 599.
TITLE II— SEC. 33 OF ACT 449
Under a statute providing that the fact that any person
not authorized to sell intoxicating liquors, shall keep such
liquor in unusual quantities, shall be presumptive evidence
of the maintenance of a liquor nuisance, where defendant
had on hand 230 pints of whisky, 22 pints of brandy and 24
pints of gin, the presumption arose in his case.
State v. Kiefer, 172 la. 306, 151 N. W. 440.
"Evidence that the defendants, acting conjointly, every
day or so for several months received intoxicating liquors
in large quantities, in three days aggregating 6 casks
of beer and 49 cases of whisky, shipped to them in fictitious
names, and so receipted for by the defendants, is sufficient
evidence to sustain the finding of the jury that the defend-
ants had such beer and whisky with intent to sell the same."
Conley v. State (Okla. Cr. App.), 179 Pac. 480.
Proof that defendant had in his possession 25 gallons of
\vhisky made a prima facie case that the liquor was kept for
purposes of unlawful sale or disposition.
State v. Bachtold (Wash.), 180 Pac. 8%.
In a prosecution for carrying liquor on defendant's per-
son, or in a suit case with intent to- sell or give away, that
defendant carried four gallons of liquor in a suit case es-
tablished prima facie that he kept such liquors with intent
to violate the statute under the presumption established by
Code, § 2427.
State v. Butler (la.), 173 X. W. 239.
That a person subject to a liquor injunction carried 48
quarter pint bottles of whisky in a sack, which he dropped
and ran when an officer was seen, was ample proof of in-
tent to use the liquor unlawfully, and so to violate the in-
junction.
Bird v. Sears (la.), 173 X. W. 925.
"The three pints of whisky discovered at the defendant's
home were not sufficient in quantity to raise a legal pre-
sumption that he had the same for an unlawful purpose,
and the prosecuting witness, Boyd, is nowhere corroborated
by any competent evidence that tends to establish the fact
that the defendant had any intention whatever to unlaw-
—29
450 TITLE II— SEC. 33 OF ACT
fully sell the three pints of whisky found at his home, or
any other whisky. The corroboration of the accomplice is
only to the effect that the defendant had three pints of
whisky at his home. Proof of possession merely is not
sufficient to authorize a conviction. Lindsey v. State, 9
Okla. Cr. App. 730, 132 Pac. 1194; Ren v. State, 9 Okla. Cr.
App. 671, 132 Pac. 1131 ; Johnson v. State, 6 Okla. Cr. App.
490, 119 Pac. 1019; Guiaccimo v. State, 5 Okla. Cr. App.
371, 115 Pac. 129; Quinn v. State, 8 Okla. Cr. App. 478,
128 Pac. 1104."
McAlester v. State (Okla. Cr. App.), 174 Pac. 1106,
1107.
7. To PROVE INTRODUCTION, TRANSPORTATION OR DELIVERY.
Sufficiency to Raise Prima Facie Presumption. — In
a prosecution for transporting contraband liquor, where de-
fendant was found at a church selling liquor from bottles
in his possession, the presumption is that he carried it there.
State v. Pope, 79 S. C. 87, 60 S. E. 234.
In a prosecution for transporting prohibited liquors, the
possession of the liquors by the person to whom defendant
was charged to have transported them, was prima facie evi-
dence of ownership.
Pappenburg v. State, 10 Ala. App. 224, 65 So. 418.
To Warrant Instruction or Take Case to Jury. — In
a prosecution for bringing intoxicating liquors into the
state, evidence that accused when arrested while driving
from the state line with intoxicating liquors, stated that it
cost him an additional amount to have such liquors brought
and delivered to him within the state, warrants an instruc-
tion that persons aiding, etc., in the introduction of liquor
into the state are guilty as principals.
Murray v. State, 19 Ariz. 49, 165 Pac. 315.
Evidence in a prosecution for introducing liquors into a
prohibition state held sufficient to justify submission of the
case to the jury.
Weems v. United States (C. C. A.), 257 Fed. 57.
TITLE II— SEC. 33 OF ACT 451
To Sustain Conviction.— Testimony of a police cap-
tain that on certain date he met defendant near corner of
Third and Santa Fe Streets, and said to him, "Charley, I
want that whisky," and searched defendant, and found a
quart and two half pints of whisky on him, supported a
conviction for unlawful conveyance of whisky to corner of
Third and Santa Fe streets.
Jones v. State (Okla. Cr. App.), 183 Pac. 519.
In a prosecution for unlawfully transporting intoxicat-
ing liquor, evidence that defendants were appprehended on
a road in a Ford car containing about 200 quarts of whisky,
gin, and wine, and that one said they came from Wichita
Falls and were going to Oklahoma City, is sufficient to sus-
tain a verdict of guilty.
High v. State (Okla. Cr. App.), 182 Pac. 907.
Merely from the common knowledge regarding the na-
ture of the Mississippi and its winding channel, the jury
would be entitled to infer that a considerable part of the
journey down it, for over 100 miles constantly opposite
Tennessee, of defendant's light draft small power boat, the
natural effort of which would be to make as straight a
course as possible, had been within the limits of Tennes-
see. (On a charge of bringing liquor within limits of dry
state.)
Bishop v. United States (C. C. A.), 259 Fed. 195.
In a prosecution for introducing intoxicating liquor into
an Oklahoma county, evidence held sufficient to sustain the
conviction.
Bradley v. United States (C. C. A.), 254 Fed. 289.
Bishop v. United States (C. C. A.), 259 Fed. 195.
Whitley v. State (Ark.), 215 S. W. 703.
Ross v. State (Okla. Cr. App.), 180 Pac. 573.
Hale v. State (Okla. Cr. App.), 181 Pac. 735.
Evidence Insufficient. — Where federal officers shot one
of a party in attempting to arrest such persons in Osage
county, Okl., for suspected violation of laws relating to in-
toxicating liquors, evidence held, in habeas corpus proceed-
ings in the federal court, to show that none of the party, in
452 TITLE II— SEC. 33 OF ACT
the presence of the officers, committed the offense of intro-
ducing intoxicating liquor into the county.
Castle v. Lewis (C. C. A.), 254 Fed. 917, 918.
In a prosecution for attempting to introduce intoxicating
liquor into the state in violation of Const, art. 23, § 1, evi-
dence held insufficient to show that that defendant, who was
apprehended at the state boundary line, committed any act
within the state for the purpose of introducing intoxicat-
ing liquors into the state.
Baca v. State, 18 Ariz. 350, 161 Pac. 686.
Carrico v. State (Okla. Cr. App.), 180 Pac. 870.
Unlawful Delivery — Scienter. — To prove that a car-
rier "knowingly" delivered liquor to a person in dry ter-
ritory, or to a minor, in violation of Ky. St. 2596b, proof
of such facts and circumstances as would excite the sus-
picion of an ordinarily prudent person, and such as might
have been verified by a reasonable effort, is sufficient.
Adams Exp. Co. v. Commonwealth, 177 Ky. 449, 197
S. W. 957.
Unlawful Delivery— Name of Expressman. — Although
it may not be necessary, in an accusation of this kind, to
name the agent of the express company who delivered the
liquor, yet when the name is alleged it becomes "descriptive
of the identity of that which is legally essential to the claim
or charge," and cannot be rejected as surplusage, but must
be proved as alleged.
Southern Exp. Co. v. State (Ga. App.), 97 S. E. 550.
8. MISCELLANEOUS QUESTIONS OF SUFFICIENCY.
Preponderance of Witnesses. — In a prosecution for
unlawfully selling intoxicating liquor, where the witnesses
in behalf of defendant outnumbered those for the state, but
the circumstances of defendant's evidence indicated an
attempt to frame favorable evidence, the jury was war-
ranted in finding a verdict of guilty, notwithstanding the
numerical preponderance of defendant's evidence.
State v. Walters, 178 la. 1108, 160 N. W. 821.
TITLE II— SEC. 33 OF ACT 453
Confessions and Plea of Guilty.
If the defendant has pleaded guilty and there is evidence
that he sold intoxicating liquors in violation of the statute,
he is not in a position to complain that the evidence was
not sufficiently specific in showing his guilt.
Terretto v. State (Tex. Cr. App.), 215 S. W. 329.
Berryman v. United States (C. C. A.), 259 Fed. 208.
Robilio v. United States (C. C. A.), 259 Fed. 101.
Sufficiency to Overcome Statutory Presumption.
See also ante, "Weight of Statutory Presumption."
State v. Butler (la.), 173 N. W. 239.
In action to enjoin maintenance of liquor nuisance, de-
fendant's mere denial that the 36 quarts of whisky and
the 96 quarts of beer, found in his residence garage, were
kept for purpose of sale, is insufficient, under circumstances
of case, to overcome presumption that it was kept for pur-
pose of illegal sale.
McMillan v. Miller (la.), 174 N. W. 259.
Proof of Former Conviction; Second Offense, etc.—
Where the record of a previous conviction relied on to sup-
port a charge of persistent violation discloses that the con-
viction was for violation of the prohibitory liquor law, the
record is prima facie proof which warrants a finding of
previous conviction, without introducing the complaint or
information on which it was based.
State v. Schmidt, 92 Kan. 457, 140 Pac. 843.
Evidence that previous to filing of information defend-
ant was convicted and sentenced for violation of prohibitory
liquor laws, and that subsequent thereto quantities of beer
and whisky were found in his residence at time averred in
present information, showed a second violation of prohibi-
tory liquor law beyond a reasonable doubt.
Browder v. State (Okla. Cr. App.), 180 Pac. 571.
Conspiracy to Violate Statute. — Evidence that defend-
ant had whisky for sale, although he had not paid special
454 TITLE II— SEC. 33 OF ACT
tax as a retail liquor dealer, and sold whisky to a third per-
son through an acquaintance, who brought the orders, held
sufficient to sustain a verdict for conspiracy with the ac-
quaintance to violate the statute.
Villers v. United States (C. C. A.), 255 Fed. 75.
Evidence Showing Trick or Device to Avoid Color
of Sale. — In a prosecution for selling intoxicating liquor in
a county where the local option law was in force, a trick,
such as leaving money on the top of a table to pay for liq-
uor, will not be permitted to work a miscarriage of justice.
Huddleston v. Commonwealth, 171 Ky. 261, 188 S. W.
366.
Evidence Identifying Accused or Connecting Him
with Sale or Unlawful Possession. — Where on a trial for
selling intoxicating liquor, the person who bought the liquor
testified that to the best of his recollection the accused, with
whom he had no acquaintance, was the one who sold the liq-
uor, but that he could not say positively that he was the
man, there was positive evidence of the identity of accused
as the guilty person sufficient for submission to the jury.
Hollingworth v. State, 3 Ala. App. 153, 57 So. 501.
In a prosecution for selling intoxicating liquors in prohi-
bition territory, testimony by the alleged buyer that he found
the whisky in his barn, but did not know to whom it be-
longed, and that he had previously loaned money to the de-
fendant, but nothing was said at that time about whisky, is
not sufficient to sustain a conviction, although a justice of
the peace testified that the witness had sworn before him
that he purchased the whisky from the defendant.
Barnhill v. State, 74 Tex. Cr. App. 97, 167 S. W. 348.
In proceedings for contempt for violation of a liquor in-
junction, evidence identifying the person proceeded against
with a person who carried a sack full of quarter pint bottles
of whisky is sufficient to sustain an adjudication of contempt.
Bird v. Sears (la.), 173 N. W. 925.
Sale by Firm, Partner, Agent, Employee, Child, etc.
— In a prosecution for illegally engaging in the business of
TITLE II— SEC. 33 OF ACT 455
selling intoxicants under an information charging defend-
ant with having committed the offense, evidence showing
the acts to have been done by means of agents or employees
of defendant is proper and sufficient to sustain conviction,
but it is necessary to identify the seller as the agent or em-
ployee of defendant, or at least to adduce evidence from
which the jury may reasonably infer such connection be-
tween them.
State v. Otto, 38 S. D. 353, 161 N. W. 340.
The fact that one who was behind the counter of a "near
beer" saloon sold whisky without hindrance or protest on
the part of the proprietor or any of his agents may author-
ize the inference that the seller is an agent of the proprietor
of the saloon and it is certainly sufficient to place the burden
upon the saloon keeper to show that this seller was not in
fact his agent.
Bragg v. State, 15 Ga. App. 623, 84 S. E. 82.
Where a defendant was lying on a lounge in a room in his
house, and another person sold liquor in his presence, the law
infers in the absence of any evidence of duress or insanity
that the sale was made with his consent and connivance.
State v. Denton, 154 N. C. 641, 70 S. E. 839.
That the indictment charges that defendant, a druggist
sold liquor, while the proof shows that a clerk in his drug
store sold it, is not a fatal variance.
State v. Clark (Mo. App.), 203 S. W. 627.
Evidence on prosecution for maintaining a liquor nuisance
at a drug store held to authorize finding that defendant by
himself or through another, with his knowledge and consent,
sold intoxicating liquor as a beverage, and was therefore
guilty.
State v. Synder (la.), 171 N. W. 8.
Where a witness asked accused to sell him whisky, and
accused told his eight year old daughter to get the whisky,
which she delivered to the witness in the presence of ac-
cused, who picked up the money put on the table by the wit-
ness in payment, accused was guilty of selling whisky in vio-
lation of Acts 1909, Sp. Sess. p. 96, section 37 of which pro-
456 TITLE II — SEC. 33 OF ACT
vides that the act shall be liberally construed to accomplish
the purpose thereof, and to prevent evasions of the law.
Lynn v. State, 10 Ala. App. 223, 65 So. 92.
To Prove Defendant the Seller and Not Mere Agent to
Procure, etc.
See also ante, "Where Accused Claims to Have Acted as
Agent or Procurer for Buyer, and Not as Seller"
(Under I, "Presumption and Burden of Proof.")
Under an indictment for unlawfully selling liquors, proof
that defendant only purchased or aided the purchaser pre-
sents a fatal variance.
Payne v. State, 124 Ark. 20, 186 S. W. 612.
In such prosecution evidence that defendant bought the
whisky as the agent of another and delivered it to him and
did not sell it to such person could not form the basis of a
conviction.
Amonett v. State (Tex. Cr. App.), 204 S. W. 438.
Where accused offered no evidence, and the testimony for
the state showed that he was given $2.00 to buy whisky for
another, which he did, delivering the whisky and the change,
an instruction that if accused received money from another,
and delivered whisky to such person, he was guilty, is not
misleading in view of the evidence, though the mere deliv-
ery of the whisky itself is not ordinarily sufficient to con-
stitute a sale.
Pope v. State, 108 Miss. 706, 67 So. 177.
"If the defendant had proved by an unimpeached witness-
that he did in fact buy the whisky from James, he would
have carried successfully the burden of rebutting the infer-
ence that he was himself the seller, which was authorized by
his receiving the money and delivering the whisky. Bray v.
Commerce, 5 Ga. App. 605, 63 S. E. 596."
Cannington v. State, 14 Ga. App. 814, 82 S. E. 356-
Unlawful Possession as Evidence of Sale. — The Vir-
ginia Act of 1916, c. 146, § 65, providing that possession of
a certain amount of intoxicating liquor is priwa facie evi-
dence that it is possessed for the purpose of sale, does not
TITLE II— SEC. 33 OF ACT 457
warrant a conviction of "selling" ardent spirits merely from
the fact of possession.
Collins -v. Commonwealth, 123 Va. 815, 96 S. E. 826,
827.
"The prima facie presumption raised by such statute from
the possession by any person of any ardent spirits at any
place other than his home (which the evidence for the com-
monwealth in the instant case showed was true of the ac-
cused), extends no further, however, than the presumption
'that such person possesses such distilled liquor * * *
for the purpose of sale.' Pine v. Commonwealth, 121 Va.
812, 93 S. E. 652. Such possession does not of itself fur-
nish any evidence of any sale actually made, it being prima
facie evidence only of the contemplated selling thereof by
such possessor of the liquor. Such possession, with such
purpose, does, it is true, constitute in itself an offense un
der the statute."
Collins v. Commonwealth, 123 Va. 815, 96 S. E. 826,
829.
Proof of Sale as Affected by Proof of Ownership.—
"One may be a violator of the law prohibiting the sale of
intoxicants as well when the intoxicant sold by him is in
fact the property of another as if it were his own (Hendrix
v. State, 5 Ga. App. 819, 63 S. E. 939; Toles v. State, 10
Ga. App. 444, 73 S. E. 597; Brown v. State, 11 Ga. App.
813, 7'6 S. E. 360), and this despite the fact the sale may
have been made merely as an accommodation to the owner
and the purchaser. Hence proof that an intoxicant, alleged
to have been sold in violation of law, was not property of
the person who delivered it in pursuance of the sale is a
mere circumstance which may point to the identity of the
real seller, but the probative value and effect of the circum-
stance is for the jury."
Pitts v. State, 17 Ga. App. 836, 88 S. E. 712.
Accord: Bird v. State (Tex. Cr. App.), 206 S. W. 844.
Under an indictment for liquor sold prior to Acts 1917.
p. 41, it was not sufficient to show a sale of liquor of which
defendant was a part owner by another part owner, because
458 TITLE II— SEC. 33 OF ACT
the defendant must be shown to have had an interest in the
sale.
Holmes v. State, 132 Ark. 135, 200 S. W. 1038.
Proof of Time and Place of Sale.
See also ante, "I, Scope of Inquiry;" "V, 42 Evidence
to Show Time and Place."
An accused cannot be convicted of violating the prohibi-
tion law in absence of proof that the liquor was sold with-
in the punishable period.
Doss v. State, 7 Ala. App. 121, 61 So. 748.
Likewise the venue must be proved to the extent of bring-
mg the alleged offense within the territorial jurisdiction of
the court.
Cagle v. State, 106 Miss. 370, 63 So. 672.
Where the evidence in a prosecution for unlawful sale of
intoxicating liquors did not fix the venue of the offense
within the city where the prosecution was begun before the
mayor as ex officio justice of the peace, or show that a sale
testified to occurred prior to the date of the affidavit, a con-
viction was unauthorized.
Cagle v. State, 106 Miss. 370, 63 So. 672.
The charge of keeping prohibited liquors for sale could
be supported by evidence of defendant doing so at the place
named in the written charge as to which the state offered
evidence, or at another place, where he testified he kept liq-
uor which he received during the period covered by the in-
dictment.
Brigham v. State, 8 Ala. App. 400, 62 So. 980.
The indictment having been returned January 23, 1911,
and the trial had at the May term 1911, testimony that the
accused sold intoxicating liquor within the last two years
does not show with sufficient certainty that the sale took
place before the indictment was found.
White v. State, 93 Ga. 47, 19 S. E. 49.
Abbott v. State, 11 Ga. App. 43, 74 S. E. 621.
TITLE II— SEC. 33 OF ACT 459
Where in a prosecution for wrongful sale of liquor, the
prosecuting witness testified that the sale took place during
the year 1910, and before he went before the grand jury,
and the indictment under which the defendant was being
tried was found by the grand jury at the September, 1910,
term of the court, and the trial was in the spring 1911, the
evidence sufficiently showed the time of the sale.
Carson v. State, 3 Ala. App. 206, 58 So. 88.
To Sustain Condemnation or Forfeiture.
Armington & Sons v. State (Ga. App.), 100 S. E. 15.
Sufficiency to Show Maintenance of Nuisance.—
Evidence consisting principally of hearsay testimony is in-
sufficient to prove that drug store proprietor, alleged to be
engaged in the illegal sale of liquor, was guilty of maintain-
ing a public nuisance.
Alton v. Salley (Mo.), 215 S. W. 241.
In suit to restrain maintenance of public nuisance, where-
in defendant was charged with illegal sale of intoxicating
liquors, testimony of witnesses who had seen intoxicated
persons, and who had merely heard or suspected that the
liquor had been obtained from defendant, but had no actual
knowledge thereof, is practically worthless.
Alton v. Salley (Mo.), 215 S. W. 241.
Sufficiency to Sustain Alleged Excessive Sentence.
— One convicted of unlawfully selling intoxicating liquor
cannot complain that the maximum sentence is excessive
and unusual for a first offense, where there was testimony
that this was not his first offense, and where the jury were
justified in finding from the testimony that he put the state
to the burden and expense of trying him when he was
guilty, that he produced perjured testimony to sustain his
defense, and that the same was obtained by a campaign
amounting to conspiracy on the part of those who favored
him.
State v. Walters, 178 la. 1108, 160 N. W. 821, 822.
VIII. Impeachment of Witnesses.
See also ante, "Character and Reputation of Accused as
a Seller of Intoxicants."
460 TITLE II— SEC. 33 OF ACT
Questions Tending to Incriminate or Degrade Wit-
ness, or Prove Him Guilty of Other Offenses. — Where
one of the alleged purchasers testified for the state, the re-
fusal to permit the accused to prove on cross-examination
that he had been arrested for violations of the prohibition
laws and imprisoned was erroneous, especially where the
evidence was conflicting and the case was close.
Amonett v. State (Tex. Cr. App.), 204 S. W. 438.
Under the Acts of — 1915, pp. 23, 24, § 22, subd. 13,
approved January 23d, providing that in a trial of proceed-
ings to condemn liquor one who answers claiming an in-
terest in liquors seized, shall be excused from attending and
testifying in court on the ground that the testimony may
tend to convict (him of crime, does not apply to voluntary
statements out of court.
Phelps v. State (Ala. App.), 75 So. 877.
Where the defendant, being prosecuted for selling intoxi-
cating liquors, took the stand as a witness, it was proper on
cross-examination for the prosecuting attorney to ask the
defendant concerning the commission of other offenses, for
the purpose of reflecting upon his credibility.
Nelson v. State (Ark.), 212 S. W. 93.
In a prosecution for illegally disposing of alcoholic liquor,
the prosecuting attorney was properly permitted on cross-
examination to ask defendant if he had not tried to escape,
and had not brought some saws into the jail and given them
to other persons, etc., since a witness may be cross-examined
as to his particular acts relevant to the impeachment of his
character for truth, though disconnected with the charge.
Webb v. State (Ark.), 212 S. W. 567.
Independent Testimony; Proof of Other Offenses,
etc. — Where the accused testified in his own behalf, the
state can attack his general reputation and show that he
has been indicted for various offenses, including sales of
intoxicating liquors in prohibition territory, and that in-
dictments therefor are pending against him, to affect his
credibility.
Martoni v. State, 74 Tex. Cr. App. 90, 167 S. W. 349.
TITLE II— SEC. 33 OF ACT 461
It is not reversible error to exclude evidence of specific
sales of liquor by a witness for the state, where such wit-
ness admits that he has made many sales thereof.
Dean v. State, 130 Ark. 322, 197 S. W. 684.
As the offense of selling intoxicating liquor is not of
those offenses involving moral turpitude, a witness cannot
be impeached by proof that he has violated this law.
Wheeler v. State, 4 Ga. App. 325, 61 S. E. 409. The court
did not err in excluding testimony to the effect that a wit-
ness whom it was sought to impeach was considered a
liquor seller, and that his reputation about selling liquor
was bad.
Edenfield v. State, 14 Ga. App. 401, 81 S. E. 253.
Impeachment of Co -Defendant. — In a prosecution of
two for unlawfully conveying intoxicating liquors, appel-
lant's claim of error in admitting evidence to impeach his
co-defendant, who was used as a witness in his behalf, was
without merit, where court limited jury's consideration of
such evidence solely to impeaching the co-defendant as a
witness, and where impeaching evidence was material to
the issues.
Hale v. State (Okla. Cr. App.), 181 Pac. 735.
Evidence to Show Bias of Detective Accomplice, etc.
See also ante, "Evidence of Accomplice, Detective,
etc.
In a prosecution for the sale of liquor, a witness for the
state may be cross-examined as to whether to his knowl-
edge one in whose employ he admittedly was, did not take
an active interest in the prosecution.
Harrison i: State, 12 Ala. App. 284, 68 So. 532.
But the court properly refused to require a witness to
answer whether he had not taken a "pretty active stand"
on the whisky question, and prosecuted people for violating
the prohibitory law, as too general to show bias of the
witness against accused.
Coates v. State, 5 Ala. App. 182, 59 So. 323.
462 TITLE II— SEC. 33 OF ACT
Where a witness for the state testified that he bought
whisky from defendant under instruction from an em-
ployee of the excise commission of the city, who was en-
gaged in running down blind tigers, and that the commis-
sioner had not paid him specially for buying whisky from
the defendant, defendant was entitled on cross-examina-
tion to inquire what he was to be paid for it.
Harwell v. State,. 11 Ala. App. 188, 65 So. 702.
It was not error to exclude testimony of the prosecuting
witness on cross-examination that he was told by police offi-
cers that they would turn him loose if he told where he
got the beer, since such testimony had no material bearing
as to whether the witness was falsely accusing defendant.
State v. Walters, 178 la. 1108, 160 N. W. 821, 822.
In a prosecution for a second violation of the prohibi-
tory liquor laws, the refusal to permit defendant, on cross-
examination of .prosecuting witness to ask if he was not
paid to secure evidence in the case, intended to show wit-
nesses' interest, was error.
Files v. State (Okla. Cr. App.), 182 Pac. 911.
Limiting Number of Impeaching Witnesses. — In a
prosecution for manufacturing whisky, court did not abuse
its discretion in limiting the number of witnesses for the
purpose of impeaching testimony of prosecuting witness
to five in number, especially where he announced his inten-
tion to so do before any of the witnesses were called.
Kindrix v. State (Ark.), 212 S. W. 84.
Evidence to Sustain Reputation of Accused. — In
prosecution for illegal sale of intoxicating liquors, where
the prosecution does not attack accused's reputation for
truth and varacity, evidence to sustain his credibility is
not admissible.
Baumgartner v. State (Ariz.), 178 Pac. 30.
TITLE II— SEC. 35
Effect of This Act on Existing Laws.
SEC. 35. All provisions of law that are inconsistent
with this act are repealed only to the extent of such
inconsistency and the regulations herein provided for
the manufacture or traffic in intoxicating liquor shall
be construed as in addition to existing laws. This Act
shall not relieve anyone from paying any taxes or other
charges imposed upon the manufacture or traffic in
such liquor. No liquor revenue stamps or tax receipts
for any illegal manufacture or sale shall be issued in
advance, but upon evidence of such illegal manufacture
or sale a tax shall be assessed against, and collected
from, the person responsible for such illegal manufac-
ture or sale in double the amount now provided by law,
with an additional penalty of $500 on retail dealers and
$1,000 on manufacturers. The payment of such tax or
penalty shall give no right to engage in the manufac-
ture or sale of such liquor, or relieve anyone from crim-
inal liability, nor shall this Act relieve any person from
any liability, civil or criminal, heretofore or hereafter
incurred under existing laws.
The commissioner, with the approval of the Secre-
tary of the Treasury, may compromise any civil cause
arising under this title before bringing action in court;
and with the approval of the Attorney General he may
compromise any such cause after action thereon has
been commenced.
State Regulations.— Subsequent federal legislation
having made certain shipments of whisky illegal and placed
them under the police power of the state, the state may
464 TITLE II— SEC. 35 OF ACT
make further regulations not conflicting with but in addi-
tion to the federal requirements.
State v. Seaboard Air Line R. Co., 169 N. C. 295, 84
S. E. 283.
Webb-Kenyon Act. — The movement of liquors in in-
terstate commerce for purposes prohibited by the laws of
the state, having expressly been divested of its immunity
as such by the Webb-Kenyon Act, the enforcement of the
state's prohibition laws does not conflict with the com-
merce clause of the federal Constitution.
State v. Frazee (\V. Va.), 97 S. E. 604.
The Webb-Kenyon Law March 1, 1913, withdraws from
the operation and effect of the commerce clause of the fed-
eral Constitution and brings within the police power of the
state, as soon as they cross the state line, shipments of in-
toxicating liquors into prohibition territory with intent to
violate the laws thereof.
State v. Seaboard Air Line R. Co., 169 N. C. 295, 84
S. E. 283.
Any immunity from the prohibitions of W. Va. Code,
1915, chap. 7, § 7, laws 1915, 2d Ex. Sess. p. 660, § 34, against
the shipment from without the state of intoxicating liquors
intended for personal use, and the receipt and possession
of liquors so transported, which the interstate character of
such a shipment might otherwise give, was taken away by
the provisions of the Webb-Kenyon Act of March 1, 1913
(37 Stat. at L. 699, Chap. 90, Comp. Stat. 1913, 8739),
forbidding the interstate shipment or transportation of in-
toxicating liquor which is intended by any person inter-
ested therein to be received, possessed, sold, or in any man-
ner used, either in the original package or otherwise, in
violation of the law of the state to which the liquor is
transported, although individual use may not have been
prohibited by the West Virginia law.
Clark Distilling Co. v. Western Maryland R. Co., 242
U. S. 311, 37 Sup. Ct. 180.
Constitutionality. — There is nothing repugnant to the
due process of law clause of U. S. Const. 5th Amend, in
TITLE II— SEC. 35 OF ACT 455
the provision of the Webb-Kenyon Act, March 1 1913
(37 Stat. at L. 699, chap. 90, Comp. State. 1913, 8739),
under which an interstate shipment of the intoxicating liq-
uor, though intended for personal use, may be subjected to
the state prohibitory laws, and Congress did not exceed
its power under the commerce clause enacting the provision
of the Webb-Kenyon Act of March 1, 1913 (37 Stat. at
L. 699, chap. 90, Comp. Stat. 1913, 8739), forbidding the
interstate shipment or transportation of intoxicating liquor
which is intended by any person interested therein to be
received, possessed, sold, or in any manner, used, either in
the original package or otherwise, in violation of any law
of the state into which the liquor is transported.
Clark Distilling Co. v. Western Maryland R. Co , 242
U. S. 311, 37 Sup. Ct. 180.
The Webb-Kenyon Law March 1, 1913, c. 90, 37 Stat.
699 (U. S. Comp. St. 1913, 8739) prohibiting the trans-
portation from one state or territory into another of in-
toxicating liquor intended by any person interested there-
in to be received, possessed, sold or used in the original
package or otherwise, in violation of any law of such state
or territory, is constitutional.
State v. Seaboard Air Line R. Co., 169 N. C. 295, 84
S. E. 283.
Reed-Jones Amendment. — The Reed-Jones Amend-
ment, § 5 (U. S. Comp. St. 1918, §§ 8739a, 10387a-10387c),
declaring that whoever shall cause intoxicating liquors to
be transported in interestate commerce, except for certain
purposes, into any state the laws of which prohibit the sale
and manufacture of intoxicating liquors, shall be punished,
did not deprive the state of Virginia of jurisdiction to pros-
ecute one who brought intoxicating liquors into the state in
violation of prohibition law, where the bringing of such
liquor into the state was not shown to constitute interstate
commerce.
Sickel v. Commonwealth (Va.), 97 S. E. 783.
Ind
ex
ABATEMENT OF NUISANCE, pp. 178, 192.
See "Nuisance;" ''Injunction."
ACTS PERMITTED, p. 12.
ACTS PROHIBITED, pp. 12, 95.
ADMISSIONS, p. 373.
ADVERTISEMENTS, pp. 25, 162.
Newspapers, p. 163.
AFFIDAVIT, p. 237.
ALCOHOL, p. 86.
ALCOHOLIC PERCENTAGE, p. 44.
Burden of Proof, p. 44.
ALE, p. 85.
ALLEGATIONS, p. 38.
AMENDMENT TO CONSTITUTION, p. i.
AMENDMENTS OF PLEADINGS, pp. 278, 279.
ANALYSIS, p. 15.
APPEAL AND ERROR, pp. 324, 325.
"APPLICATION," pp. 10, 78.
APPLICATION FOR PERMIT, p. 18.
ARGUMENT, p. 288.
ARREST, p. 279.
ARREST OF JUDGMENT, pp. 319, 320, 321.
ARTICLES FOR MANUFACTURE, p. 32.
ASSISTANT OR AGENT, pp. 44, 79.
AUTHORITY OF COMMISSIONS, p. 10.
AUTHORITY OF AGENTS, p. 10.
BARROOM, p. 106.
BEER, pp. 88, 89, 90.
BEVERAGES PERMITTED, p. 9.
BEVERAGES PROHIBITED, p. 9. '
BEVERAGE PURPOSES, p. 14.
BILL OF PARTICULARS, p. 38.
BITTERS, p. 85.
BLIND TIGER, p. 107.
BOND, pp. 10, 78.
BONDED LIQUOR, p. 41.
BOOTLEGGERS, p. 106.
BURDEN OF PROOF, pp. 130, 332.
CANAL ZONE, p. 54.
CARRIERS, p. 24.
Delivery, p. 24.
Duties, pp. 24, 159, 160.
Records, pp. 24, 154.
468 INDEX
CIDER, pp. 13, 37, 91.
CIRCUMSTANTIAL EVIDENCE, p. 372.
Weight of, p. 431.
See "Evidence."
CIVIL ACTIONS, p. 27.
CLUB, pp. 134, 135.
Employee, p. 135.
Member, p. 135.
COMMISSIONER OF INTERNAL REVENUE, pp. 10, 78.
Duties, p. 11.
COMPROMISE, p. 41.
CONCURRENT POWER OF STATES, p. 1.
CONFESSIONS, p. 373.
CONFISCATED LIQUORS, p. 35.
See "Search and Seizure."
CONFISCATION OF CONVEYANCE, p. 213.
CONFLICTING STATE'S LAWS, p. 68.
CONSIGNEE, pp. 24, 158.
Oath, p. 24.
CONSIGNOR, p. 24.
Duty, p. 24.
Information on Package, pp. 25, 161.
CONSTITUTIONAL AMENDMENT, pp. 1, 57.
CONSTITUTIONALITY OF STATUTES, p. 57 and seq.
CONSTRUCTION, pp. 12, 95, 96.
Liberal, p. 95.
Strict, pp. 97, 98.
Statutory Signification, p. 97.
CONSTRUCTION OF SIMILAR STATUTES, p. 74.
CONTEMPT, p. 31.
Appeal, p. 193.
Good Faith, p. 196.
Jury Trial, p. 197.
Proceeding, pp. 195, 196.
Punishment, p. 32.
CONTINUANCE, p. 286.
CONTRACTUAL RIGHTS, p. 73.
COSTS AND EXPENSES, p. 330
COUPONS, p. 105.
CREDIT SALE, p. 106.
See "Sale."
"DECOCTIONS," p. 84.
DEFENSES, p. 280.
DEFINITIONS, p. 77.
Dictionary, p. 79.
Ejusdem Generis, p. 81.
Power to Define, p. 80.
INDEX 469
DENATURED SPIRITS, p. 12.
DESCRIPTION OF LIQUOR, pp. 363, 364.
See "Indictments."
DISTILLATION, p. 99.
DRUGGISTS, pp. 23, 145.
See "Pharmacist."
Intent, p. 151.
License, p. 151.
Sale of Stock, p. 147.
Search Warrant, p. 153.
Unauthorized, p. 146.
DURATION OF PERMITS, p. 16.
See "Permits."
ECCLESIASTICAL MANUFACTURE, p. 19.
ELECTION, p. 287.
ENUMERATED LIQUORS, pp. 81, 82.
ERROR, pp. 326, 327.
EVIDENCE, p. 38.
See "Analysis," p. 331.
Admissibility, Relevancy and Competency, p. 368.
Alternative Charges, p. 370.
Character of Business, p. 395.
Copies of Records, p. 40.
Detective, Accomplice, etc., p. 433.
Former Trial, p. 374.
Identity of Liquor, p. 416.
Intent, p. 376.
Intoxicating Character, pp. 344, 410, 435.
Judicial Notice, p. 355.
Of Sale, pp. 440, 443.
Ordering and Receiving, p. 419.
Other Sales, p. 402.
Ownership, p. 390.
Prescriptions, p. 429.
Presumptions and Burden of Proof, p. 333.
Proof of Time, p. 356.
Question of Law and Fact, p. 353.
Records, p. 422.
Reputation, p. 400.
Tax Receipts, p. 409.
To Prove Manufacture, p. 437.
Transportation, p. 451.
Variance, p. 359.
Weight and Sufficiency, p. 431.
Witnesses, p. 459.
EXCHANGE, p. 119.
470 INDEX
EXTENSION OF PERMIT, p. 17.
FALSE CONSIGNEE, p. 25.
FALSE STATEMENT ON PACKAGE, p. 25.
FLAVORING EXTRACTS, pp. 13, 141.
FORFEITURE, pp. 33, 34, 35.
See "Search and Seizure."
Constitutionality, pp. 214, 215.
Construction of Statute, pp. 217, 218.
Intervention by 'Claimant, pp. 230, 231.
Liens, pp. 226, 227.
Proceedings, p. 224.
Property Liable, pp. 218, 219, 220.
FORMER JEOPARDY, pp. 283, 375.
FORMULA FOR MAKING, p. 26.
FRUIT JUICES, p. 37.
FURNISHING, p. 119.
GIFT, p. 119.
HOSPITALS, p. 16.
IMMUNITY, p. 37.
IMPEACHMENT OF WITNESSES, p. 459.
IMPORTATION— RIGHT TO PROHIBIT, p. 65.
IN-CONSISTENT LAWS, p. 463.
INCRIMINATION, p. 37, 373.
INDICTMENTS, pp. 38, 237.
See "Analysis," p. 236.
Amendments, p. 278.
Averments, pp. 38, 238, 247, 256, 259. 263.
Bill of Particulars, p. 246.
Certainty, p. 240.
Clerical Errors, p. 240.
Consideration, p. 264.
Counts, p. 254.
Intent, pp. 238, 239.
Intoxicating Character, pp. 268, 269.
Kind of Liquor, p. 268.
Misjoinder, 'Pp. 250, 251.
Names, pp. 264, 265, 266, 267.
Negative Averments, p. 247.
Price, p. 263.
Prior Offenses, p. 270.
Quantity, p. 263.
Scienter, p. 238.
Special Offenses, pp. 271, 272.
Specification, p. 238.
Statutory Language, p. 241.
Surplusage, p. 241.
Time, pp. 259, 261.
INDEX 471
INDUSTRIAL ALCOHOL, p. 45.
Conflicting Statutes, p. 53.
"Container," p. 46.
Definition, p. 45.
Denaturing, p. 48.
Distilling, p. 48.
Existing Laws, pp. 48, 53.
Penalties, pp. 50, 51.
Permits, p. 46.
Procedure, p. 48.
Seizure, p. 53.
Tax, pp. 47, 52, 53.
Transfer, p. 47.
Vinegar Distilled, p. 50.
Warehouses, p. 46.
INFORMATION, p. 237.
See "Indictments."
INFORMATION REGARDING LIQUOR, pp. 27, 165.
INGREDIENTS FOR MAKING, p. 26.
INJUNCTION, pp. 28, 171.
See "Nuisance" — "Contempt."
Abatement, p. 29.
Advertising Liquor, p. 185.
Allegations, p. 183.
Bond. p. 29.
Bootlegging, p. 177.
Burden of Proof, p. 188.
Club, pp. 176, 177.
Contempt Proceedings, p. 31.
Costs, p. 188.
Criminal Conviction, p. 172.
Cross Petition, p. 185.
Defenses, pp. 185, 186.
Denial, p. 191.
Evidence, p. 180.
Fees, p. 31.
Forfeiture of Lease, p. 31.
Hearing, p. 188.
Intent, p. 31.
Issuance, pp. 189, 190.
Jurisdiction, p. 172.
Jury, pp. 182, 188.
Nature of Proceeding, p. 172
Notice, p. 181.
Order, p. 29.
Petition, p. J82.
472 INDEX
INJUNCTION— Continued.
Place, pp. 177, 179.
Prayer for Relief, p. 185.
Sale, pp. 174, 179.
Statutory Regulation, p. 173.
Temporary Injunction, p. 29.
Traffic in 'Liquor, p. 30.
Transportation, p. 179.
Trial, p. 29.
Violation, p. 31.
INNOCUOUS BEVERAGES, p. 80.
INTENT, p. 136.
As Defense, p. 280.
Good Faith, p. 138,
INSPECTION OF RECORDS, p. 39.
INSTRUCTIONS, p. 292, et seq.
"INTOXICATING LIQUOR," p. 84.
INVALIDITY OF PART OF ACT, p. 41.
JAMAICA GINGER, p. 85.
JUDICIAL NOTICE, p. 353.
Of Alcoholic Percentage, p. 92.
JURISDICTION, p. 286.
JURY, p. 292.
Questions for, p. 353.
KNOWLEDGE, p. 137.
Of Intoxicating Character, p. 136.
Question of Fact, p. 139.
LABELS, p. 23.
LARCENY OF LIQUOR, p. 72.
LAW AND FACT, p. 353.
LEASE, p. 31.
"LIQUOR," p. 83.
"LIQUID," p. 83.
"LIQUOR" OR "INTOXICATING LIQUOR," p. 77.
LOAN, p. 118.
MALT LIQUOR, pp. 92, 93.
MANUFACTURE, pp. 1, 11, 98.
Aiding and Abetting, p. 100.
Attempt, p. 99.
Definition, p. 99.
Personal Use, p. 99.
Right to Prohibit, p. 67.
Wine Making, p. 101.
MANUFACTURE "OR" SALE, p. 98.
MANUFACTURING PURPOSES, p. 13.
MANUFACTURING RECORDS, p. 23.
INDEX 473
MEDICINE, p. 20.
See "Physicians"— "Prescriptions."
Necessity for, p. 20.
Amount Permissible, p. 20.
MEDICINAL PREPARATIONS, pp. 13, 139 152
MIXTURES, p. 90.
NEAR BEER, p. 87.
NEW TRIAL, pp. 321, 322.
NON-ALCOHOLIC BEVERAGES, p. 41.
Right to Prohibit, pp. 65, 66.
NOTICE, pp. 14, 15.
NUISANCE, pp. 28, 167, 171.
See "Injunction."
Abatement, p. 170.
Continuance, p. 168.
Elements of, p. 180.
Lessee, p. 169.
Property, p. 168.
Punishment, p. 28.
OFFICERS, pp. 36, 289.
General Powers, p. 36.
Misconduct, p. 289.
ORDERS FOR LIQUOR, p. 27.
PATENT MEDICINES, p. 13.
"PATIENT," p. 145.
PEACH BRANDY, p. 86.
PENALTY, pp. 36, 234.
Constitutionality, pp. 234, 235.
Construction, p. 235.
PERCENTAGE OF ALCOHOL, pp. 9, 42, 77, 80.
PERMIT, pp. 10, 13, 78, 152.
Bond, p. 18.
Form, p. 18.
Necessity for, p. 16.
Refusal, p. 17.
Restrictions, p. 19.
Revocation, p. 15.
Specifications, p. 17.
Violation of, pp. 21, 36.
"PERSON," pp. 9, 78.
PHARMACIST, pp. 17, 145.
See "Druggists."
Records, p. 20.
PHYSICIAN, pp. 17, 20, 142.
Record, p. 20.
POTABILITY, p. 87.
474 INDEX
POTENTIALLY ALCOHOLIC, p. 94.
PORTER, p. 85.
POSSESSION, pp. 12, 38, 40, 131, 201.
Agent, p. 203.
Amount, p. 134.
As Evidence, pp. 38, 381.
Apparatus, p. 133.
Before Law Prohibiting, pp. 62, 63.
Burden of Proof, p. 39.
Definition, pp. 203, 205.
Dwelling, pp. 39, 131, 204.
Innocent Possession, p. 132.
Intent, p. 202.
Jointly, p. 133.
Lawfully Acquired, p. 207.
Ownership, p. 202.
Physical Possession, p. 132.
Premises, p. 204, 389.
Prima Facie Unlawful, p. 38.
Proof of Lawfulness, p. 427.
Temporary, p. 132.
Time of Acquiring, p. 131.
For Sale, p. 133.
PRELIMINARY TRIAL, p. 11.
PRESCRIPTIONS, pp. 16, 19, 20, 142.
See "Druggists" — "Pharmacists."
Affidavit, p. 149.
Amount, pp. 140, 142.
Blanks, pp. 20, 143.
Cancellation, p. 142.
Contents of, p. 148.
Evidence of, p. 149.
Good Faith, p. 147.
Necessity for, p. 142.
Records of, p. 142.
Refilling, p. 20.
PRESUMPTIONS, pp. 333, 340, 352.
See "Evidence."
Agency, p. 346.
Burden on State, When, p. 349.
Dwelling, p. 340.
Effect, p. 341.
Generally, p. 349.
Intoxicating Character, p. 81.
Possession, p. 334.
Tax Receipts, p. 349.
Weight, p. 335.
INDEX 475
PRICE LISTS, p. 26.
PRIOR CONVICTION, p. 37.
PRIVATE DWELLING, p. 32.
PROPERTY RIGHTS IN LIQUOR, p. 32.
PROPERTIES OF LIQUOR, p. 81.
PROSECUTION, p. 11.
PUBLIC POLICY, p. 97.
PUNISHMENT, pp. 36, 234.
PURCHASE, p. 118.
RATIFICATION OF AMENDMENT, p. i.
RECEIVING FROM CARRIER, p. 120.
RECORDS, pp. 10, 22.
Copies as Evidence, p. 40.
Inspection, p. 39.
REGULATION, p. 10, 78.
RELEVANCY, pp. 368, 369.
See "Evidence."
REPEAL OF CONFLICTING LAWS, p. 40.
REPEAL AND AMENDMENTS, p. 70.
RES GEST;E, p. 371.
REVIEW BY COURT, pp. 16, 22.
REVOCATION OF PERMIT, p. 22.
SACRAMENTAL WINE, pp. 18, 130, 141.
SALE, pp. 1, 12, 101.
Accessories, pp. 114, 115, 116.
Agent, pp. 107, 108, 109.
Aiding and Abetting, pp. 110, 111, 112.
Delivery, p. 102.
Intermediary, p. 113.
Ownership of Liquor, p. 103.
Place, p. 104.
Shams, pp. 104, 105.
What Constitutes, p. 101.
With Meals, p. 105.
SAMPLES, p. 164.
SCIENTER, p. 139.
See "Evidence."
SENTENCE AND PUNISHMENT, pp. 36, 323.
SEARCH, pp. 32, 201.
Private Dwelling, pp. 32, 201.
Unlawful Search, p. 388.
Without Warrant, p. 209.
SEARCH WARRANTS, pp. 11, 32, 207.
Officer's Return, p. 387.
Sufficiency, pp. 209, 210, 211.
476 INDEX
SEIZURE, p. 32.
Innocent Owner, p. 45.
SEIZURE OF VEHICLE, p. 33.
Advertisement, p. 34.
Bond for Return, p. 33.
Liens on Vehicle, p. 34.
Sale of Vehicle, p. 34.
SEIZURE IN TRANSPORTATION, p. 213.
SOLICITING ORDERS, pp. 165, 418.
SPECIFICATIONS IN LABELS, p. 23.
"SPIRITUOUS," p. 86.
STATE REGULATIONS, p. 463.
STATUTORY DEFINITIONS, p. 9.
STATUTORY SIGNIFICATION, p. 84.
"STILL BEER," p. 87.
SUBSTITUTES, p. 91.
TAXES, p. 40.
TICKETS, p. 105.
TITLE TO ACT, pp. 2, 71.
TIME ACT EFFECTIVE, p. 55.
TOILET PREPARATIONS, p. 13.
TRANSPORTATION, pp. 1, 12, 120.
Accessory, p. 120.
Agent, p. 125.
Automobile, p. 122.
Carrier to Transfer Company, p. 123.
Consignor, p. 125.
Delivery, p. 125.
Destination, p. 126.
Distance, p. 128.
Draying from Depot, p. 126.
Exterritorial, p. 125.
Intent, p. 124.
Interstate Commerce, p. 125.
Jury Question, p. 130.
Lawful When, p. 122.
On Own Premises, p. 124.
On Person, p. 120.
Private Carrier, p. 124.
Reed Amendment, pp. 126, 127, 128.
Through State, p. 129.
Train to Depot, p. 123.
Unlawful Use, p. 121.
Within State, p. 122.
UNSPECIFIED LIQUOR, p. 83.
INDEX 477
USE, pp. 70, 136.
In Manufacture, p. 13.
Right to Prohibit, p. 70.
UTENSIL FOR MANUFACTURE, p. 26.
VARIANCE, pp. 359, 360, 361, 362
VEHICLE, p. 33.
Automobile, p. 220.
VENUE OF TRIAL, p. 38.
VERDICT, p. 317.
VINEGAR, p. 13.
"VINOUS LIQUOR," p. 91.
VIOLATION OF PERMIT, p. 21.
See "Permit."
Procedure for, p. 21.
WAR PROHIBITION, pp. 2, 75, 76.
WAREHOUSE RECEIPTS, p. 12.
WARRANT, p. 11.
"WHISKY," pp. 85, 91, 92.
WITNESSES, p. 459.
See "Evidence."
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