People v. Minter

The defendant sold a pint of whiskey, and as he had no license, he stands convicted on the charge that, by the sale, he had exercised a privilege and performed an

Defendant’s first contention is-made possible by the backhanded manner in which the Legislature has made it a misdemeanor to sell whiskey without a license. The offense is created in section 3 of the Alcoholic Beverage Control Act (Deering’s Gen. Laws, Act 3796; Stats. 1935, p. 1123, as amended) by these words: “No person shall exercise the privilege or perform any act or acts wMch a licensee under tMs act may exercise or perform under the authority of a license issued under tMs act unless such person is authorized to do so by a license duly issued pursuant to the provisions of this act. Any person violating any provision of this section shall be guilty of a misdemeanor. ...”

To complete the background necessary to an understanding of defendant’s first position, we note that not only in fact but by definition (section 2(d) of the act referred to) “whiskey” is included among the “distilled spirits.” Some twenty-five different types of licenses are listed in section 5 of the act, while in section 6 are detailed the “rights and privileges” wMch the several licenses “shall authorize the person to whom issued to exercise.” We pay particular attention to two statements found in section 6: “An off-sale general license . . . authorizes the sale, to consumers only and not for resale, of distilled spirits in packages of not more than one gallon and . . . not less than one-half pint for consumption off the premises where sold.” (§ 6(h).) “Any on-sale license authorizes the sale of the alcoholic beverage specified in the license for consumption on the premises where sold. . . . An on-sale general license authorizes the purchase and possession of distilled spirits in packages of not more than one gallon capacity and of not less than one-half pint capacity.”

Later in the act, in section 59.6, we find that it is made a

The sale which got the defendant into trouble occurred, all witnesses agreed, about 2 o’clock a. m. One of the witnesses had asked the defendant if he could sell him a bottle of good whiskey. The defendant, who was driving a cab, indicated that he could comply with the request. He drove to a place where two other bottles were later discovered, went to the rear of the premises, and returned with a pint bottle. He then droye a short distance before he stopped at a street light, stated the price was $7.00, and in exchange for marked bills gave the witness a pint bottle, labelled 11 Old Crow Whiskey— 100 Proof.”

Defendant’s first argument, which is that a sale of whiskey at 2 o ’clock in the morning is neither performing an act nor exercising a privilege which a licensee might legally perform or exercise, has just enough foundation in the literal structure of the charge, and in the wording of section 3, upon which the charge was based, to make it plausible. However, to place the interpretation upon section 3 contended for by the defendant would result in permitting an unlicensed person to sell intoxicating liquor with impunity during the hours a licensed person is expressly forbidden to do so. Such an interpretation would be out of harmony with the injunction contained in the first section of the act, that “all provisions of this act shall be liberally construed for the accomplishments of these purposes,” one of the' purposes referred to having been earlier declared in the section to be “to eliminate .the evils of unlicensed . . . selling ... of alcoholic beverages.” In addition to the rule of interpretation expressed in the act itself, we know that “Once the intention of the legislature is ascertained it will be given effect even though it may not be consistent with the strict letter of the statute (citing cases). In construing a statute it must be remembered that no law is to be construed in such a manner as to result in a palpable absurdity.” (People v. Black (1941), 45 Cal.App.2d 87 , 94 [ 113 P.2d 746 ].)

The words employed by the Legislature permit of an interpretation which avoids the absurd result of permitting an unlicensed person to sell liquor during the periods when li

Defendant’s second argument is that there was no competent proof that the liquid in the pint bottle which he sold was either whiskey or any other intoxicating beverage. As already indicated, the evidence at this point is not extensive. The defendant was asked if he would sell some good whiskey, and he produced a bottle bearing the label “Old Crow Whiskey, 100 Proof, ’ ’ upon which were some unbroken United States Government revenue stamps. The bottle, for some reason, was never opened and sampled, the testimony of the several witnesses to the effect that it contained whiskey being admittedly based upon the label and stamps that it bore and, doubtless, upon the further fact that its contents did not look unlike whiskey. There was no evidence suggesting that the defendant had sold some other liquid as the whiskey bargained for.

In State v. Wright (1895), 68 N.H. 351 [ 44 A. 519 ], the presence of United States revenue stamps on some kegs was held to lend support to the conclusion that the kegs contained malt liquor. In Tompkins v. State (1907), 2 Ga.App. 639 [ 58 S.E. 1111 ], it was stated that “The jury may infer . . . that a liquid, though not imbibed, is whiskey where the purchaser plainly asks for whiskey, and the seller furnishes it in compliance with his request.” This case was followed approvingly, where peach brandy was in question, in Howard v. State (1909), 7 Ga.App. 61 [ 65 S.E. 1076 , 1077]. To the same effect is Lewinsohn v. United States (1922), 278 F. 421 , 426. See, also, 33 C. J. 774, note 96.

In several eases the presence of labels was held sufficient, in the absence of evidence to the contrary, to determine the character of the contents. In Herring v. State (1914), 11 Ala.App. 202 [ 65 So. 707 ], we find it stated that “The fact that packages delivered by the express company to the defendant were billed and marked ‘whiskey’ was some evidence that they contained whiskey. ’ ’ This conclusion was based in part on the authority, of Kennedy v. State (1913), 182 Ala. 10 [ 62 So. 49 ], where a conviction of murder was affirmed, and, in considering the effect of a label on a box received in evidence, the Alabama Supreme Court had remarked: “If a defendant is accused of selling alcoholic liquor contrary to law, it cannot be rationally urged that whiskey labels on the bottles of liquor dispensed by him would not be some evidence of the nature of the liquor inside. ’ ’

Other matters suggested in the defendant’s argument have been considered, but we do not deem that they merit mention.

The judgment is affirmed.

Shaw, J., and Kincaid, J., concurred.