Opinion
No. 27318.
November 12, 1928.
1. INTOXICATING LIQUORS. Information charging defendant possessed malted liquors, etc., charged offense without alleging liquors possessed would intoxicate ( Hemingway's Code 1927, sections 2279, 2280).
Information charging that defendant "did then and there unlawfully and knowingly have in her possession malted liquors," etc., held to charge an offense under Laws 1918, chapter 189, sections 1, 2 (Hemingway's Code 1927, sections 2279, 2280), prohibiting possession of "spirituous, vinous, malt, fermented or other intoxicating liquors," without allegation that liquor possessed would intoxicate.
2. INTOXICATING LIQUORS. Words "other intoxicating" in statute prohibiting possession of specifically designated liquors and other intoxicating liquors do not qualify liquors specifically designated ( Hemingway's Code 1927, sections 2279, 2280).
Words "other intoxicating" in Laws 1918, chapter 189, sections 1, 2 (Hemingway's Code 1927, sections 2279, 2280), prohibiting possession of "spirituous, vinous, malt, fermented or other intoxicating liquors of any kind," do not qualify words "spirituous, vinous, malt, fermented . . . liquors," but prohibit possession of liquors in addition to such as are specifically designated that will in fact intoxicate.
APPEAL from circuit court of Leflore county, HON. S.F. DAVIS, Judge.
Gardner, Odom Gardner, for appellant.
For a reversal of this cause, we rely on one point only, to-wit: "It is not violative of our prohibition statutes to possess malt liquors." Sec. 2280, Hemingway's Code of 1927; Purity Extract Tonic Co. v. Lynch, 100 Miss. 650, 56 So. 316.
In the Lynch case, supra, our court recognized that all malt liquors are not intoxicating, and that certain malt liquors prepared in a certain manner are not intoxicating and contain no alcohol. There the sale of malt liquors was involved. This was a civil case and the defendant, sued on a contract, defended on the ground that the contract was for the purchase of malt liquor, the sale of which was prohibited by statute and for this reason that the contract was against public policy and null and void. This contention was sustained by our court speaking through Chief Justice MAYES on the ground that section 1 of chapter 115 of the Laws of 1908, prohibited the sale of malt liquors whether intoxicating or not.
If it had been the purpose and intention of the legislature in enacting chapter 189 of the Laws of 1918, to make it unlawful to possess malt liquors, whether intoxicating or not, it would not have adopted the wording of the statute as written, but would have followed section 1, of chapter 115, of the Laws of 1908, under consideration in the Lynch case, supra.
We take it that this court will take judicial knowledge of the fact that malt liquors are not necessarily intoxicating, in fact, may contain no alcohol whatever. See Commonwealth v. Goodwin, 109 Va. 828, 64 S.E. 54, 56; State v. Kauffman, 68 Ohio 635, 67 N.E. 1062; Shaw v. State, 56 Ind. 188; Anderson v. State, 131 Miss. 584, 95 So. 637; Young v. State, 137 Miss. 188, 102 So. 161, 36 L.R.A. 717; King v. State, 58 Miss. 737, 38 Am. Rep. 344; Bertrand v. State, 73 Miss. 51, 18 So. 545; Goode v. State, 87 Miss. 495, 40 So. 12; Loh v. City of Macon, 70 S.E. 149, 8 Ga. App. 744; Campbell v. City of Thomasville, 64 S.E. 815, 6 Ga. App. 212;
J.A. Lauderdale, Assistant Attorney-General, for the state.
This prosecution was based on a violation of section 2, chapter 189, Laws of 1918. This section makes it unlawful for any person to control or possess in this state "any of the liquors mentioned in section one of this act." The liquors mentioned in section one of said act are the following: "any spirtuous, vinous, malted, fermented or other intoxicating liquors of any kind."
Counsel for appellant content that the phrase "other intoxicating liquors of any kind," limits all the liquors mentioned in said act to intoxicating liquors.
Chapter 214, Laws of 1912, section 2236, Hemingway's Code 1927, makes it a violation of the law to sell, barter or give away the following described liquors; "Any vinous or spirituous liquors or intoxicating bitters or other drinks which if drank to excess will produce intoxication."
Both of these sections, one with reference to possessing liquor and the other with reference to selling liquor, name several specific kinds of liquor. The first includes, "or other intoxicating liquors of any kind." The other includes "all other drinks which if drank to excess will produce intoxication." The wording of the two statutes is somewhat different, but the meaning is the same.
This court has held that it is a violation of the law of said section 2236 to sell "malt" liquor and this is true regardless of whether the malt liquor will produce intoxication, or not. See Extract Tonic Co. v. Lynch, 100 Miss. 650; Extract Tonic Co. v. Lynch, 226 U.S. 192, 57 L.Ed. 184; Fuller v. The City of Jackson, 97 Miss. 237, 52 So. 873; Edwards v. Gulfport, 95 Miss. 148.
The appellant was convicted in the county court of Leflore county, on an information by the county attorney, charging that she "did then and there unlawfully and knowingly have in her possession malted liquors," etc. She appealed to the circuit court, where the judgment was affirmed, and then brought the case to this court. The record does not contain the evidence on which the case was tried.
The error here assigned is that the information fails to charge an offense. The prosecution is based on sections 1 and 2, chapter 189, Laws 1918 (Hemingway's 1927 Code, sections 2279 and 2280), which prohibit the possession of "spirituous, vinous, malted, fermented, or other intoxicating liquors of any kind." The title of the statute is:
"An Act . . . to make it unlawful to receive, have, control or possess intoxicating liquors in this state," etc.
The appellant's contention is that the statute prohibits only the possession of liquor that will intoxicate, and therefore the information should have contained language setting forth that the liquor which she is charged with having in possession would intoxicate. We do not so understand the statute. It is true the legislature meant by this statute to prohibit the possession of liquor that would intoxicate. In order to do this, it expressly prohibited the possession of certain specifically named liquors which it assumed would intoxicate, and all other liquors that would intoxicate. The words "other intoxicating" do not qualify the words "spirituous, vinous, malted, fermented . . . liquors" ( Edwards v. Gulfport, 95 Miss. 148, 49 So. 620), but prohibit the possession of liquors, in addition to such as are specifically designated in the statute, that will, in fact, intoxicate ( Reyfelt v. State, 73 Miss. 415, 18 So. 925; Purity Extract Tonic Co. v. Lynch, 100 Miss. 650, 56 So. 316; Fuller v. City of Jackson, 97 Miss. 237, 52 So. 873, 30 L.R.A. (N.S.) 1078; Anderson v. State, 131 Miss. 584, 95 So. 637).
The cases of Young v. State, 137 Miss. 188, 102 So. 161, 36 A.L.R. 717, and Davison v. Town of Newton, 137 Miss. 188, 102 So. 161, 36 A.L.R. 717, are not in point here. The question in those cases was whether Jamaica ginger and other proprietary medicines were included in the prohibition of the statute. The questions there arose on the evidence, and not on the sufficiency of the indictments. "Where the statute expressly prohibits the sale, manufacture, or possession of a particular liquor or class of liquors, it is not necessary to allege that the particular liquor or class of liquors, the sale, manufacture, or possession of which is forbidden, is intoxicating." 33 C.J. 721.
Affirmed.