I respectfully dissent from the majority opinion in this case, because this court has repeatedly held that, regardless of the finding of fact by the trial judge, if the record discloses that no evidence at all was offered in support of a material fact, the proof of which is essential to complete the crime or offense charged, this court will avoid a verdict and will remand the case or discharge the accused as the circumstances may require. It is my opinion that such a case is presented here. It is admitted that the proof on which the conviction was had is contained in the agreed statement of facts found on page 7 of the transcript. The admitted facts must be accepted by us literally, regardless of anything the trial judge has said in his per curiam to defendant's bill of exceptions. It is the fixed jurisprudence of this state that where there is a variance between the statements in the bill of exceptions and those of the trial judge in his comments thereon, the testimony as taken down at the time *Page 128 of the trial shall govern. By the same token, when the district attorney and counsel for the defendant agree upon the facts upon which a conviction was sought and file a statement of the agreed facts during the trial as a part of the record of the case, these facts must be accepted by this court, verbatim et literatim, as the facts of the case.
Keeping in mind the foregoing principles, which are too well settled to require the citation of authorities, I now quote the agreed statement of facts:
"It is agreed between the district attorney and counsel for the accused in the above-numbered and entitled cause, that the admitted facts brought out at the trial of the accused, and on which his conviction was based, for unlawfully having in his possession intoxicating liquor for beverage purposes, are as follows: That the accused, Herman Gremillion, while attending a public dance in the village of Echo, in the parish of Rapides, La., on the date alleged in the indictment, took from his pocket a pint bottle containing whisky, which the accused had obtained on a prescription issued by a licensed physician, and which prescription had been filled by a druggist; that the accused had legally obtained this whisky for medicinal purposes on March 23, 1925. It is further agreed that when the accused took the bottle from his pocket, on which there was the prescription above referred to, he took a drink out of the bottle and put the same back into his pocket, that during the evening he engaged in dancing, and that when he took the drink he was in the dance hall."
In criminal cases the appellate jurisdiction of this court is limited to questions of law alone. Article 7, § 10, Const. 1921. But where a ruling of the judge a quo, made during the trial, is questioned, it is proper to consider the facts pertaining thereto in determining whether the ruling complained of was correct or erroneous; it is only the facts relating to the guilt or innocence of the accused of which the jury or the trial judge, as the case may be, are the sole judges. From the foregoing it follows that we may consider the admitted facts for the limited purpose of ascertaining whether or not, under *Page 129 that statement of facts, the defendant is legally chargeable with a violation of section 1 of Act 39 of 1921. It is under this section of the statute that the accused is prosecuted. The section is as follows:
"Be it enacted by the Legislature of Louisiana, that no person shall manufacture, sell, or in any manner dispose of, transport, deliver or possess intoxicating liquors within this state, export the same from or import the same into this state for beverage purposes."
If the foregoing section of the statute is interpreted as counsel for the state would have us interpret it in this case, the mere possession by any one of intoxicating liquor, in this state, for beverage purposes, would be a violation of the statute. That such was not the intention of the Legislature is clearly expressed in section 4 of the act, which is as follows:
"That nothing in this act shall be construed to forbid the possession of intoxicating liquors in one's private dwelling or abode while the same is occupied by him as such a dwelling, provided such intoxicating liquors were legally acquired and are only for personal consumption by the owner thereof and his family residing in such dwelling and his bona fide guest when entertained by him therein. Nothing in this act shall be construed to prevent a citizen who is a householder from brewing beer and fermenting wine for the use of himself and his family in his home and his bona fide guest entertained in such home."
It is admitted in this case that the defendant lawfully acquired the liquor that he is charged with unlawfullypossessing, and, that he acquired it for a nonbeveragepurpose.
There is nothing in Act 39 which forbids the possessor of lawfully acquired intoxicating liquor, for nonbeverage purposes, from transporting it to any part of the state. Therefore, when defendant carried the bottle of liquor he had lawfully acquired for nonbeverage purposes to the dance hall at Echo he did not violate any provision of the statute. But counsel contends that he took a drink out of the bottle. The statute does *Page 130 not denounce the drinking of intoxicating liquor, and non constant defendant may have been following the prescription both as to the time when and the quantity to be taken. The place where defendant drank the liquor is immaterial except from the standpoint of social indiscretion.
Criminal statutes must be strictly construed, and in the administration of law the judiciary can have but one rule, applicable alike to all cases, whether the life or liberty of a human being is in the balance or where the issue involves only the imposition of a fine. Justice is depicted as blind. The scales in her hand are evenly balanced. She is deaf to public clamor, and popular sentiment is heeded not. The executive and the legislative officers are expected to represent the will of the majority, but the duty of the judge is to maintain the constitutional balance between the majority and the minority, between individuals, and between the individual and the state. Either Chief Justice Taft or President Roosevelt once said:
"It is sophistry to say that this is a government of the people, by the people, for the people. In reality this is a government of the people, by a majority of the people, for the people. Hence arises the necessity for a Constitution to curb the will of the majority and to guide the course of government under the controlling checks which experience has shown to be necessary to secure for the minority or the individual its or his share of the benefits of government."
The enlightened citizen realizes that the force of authority behind our law is not force as represented by the sheriff or the army; it is not what we commonly call the will of the people. The will of the people may in haste or thoughtlessness destroy the work of centuries, but the real source of authority behind the law is a passion for justice in the hearts and minds of an intelligent and thinking people. It is to this sense of justice, coupled with intelligence and learning, that we must ultimately look for the *Page 131 source of all power behind our law, behind our treaties, behind our councils of nations, behind our agreements for the protection of society and the preservation of peace; that justice of which Webster said:
"Wherever her temple stands, there is a foundation for social security and the improvement and progress of our race. And whoever labors upon this edifice, with usefulness and distinction, whoever clears away its foundations, strengthens its pillars, adorns its entablatures, or contributes to raise its august dome still higher in the skies, connects himself in name and fame and character with that which is as durable as human society."
This case has been given most serious consideration, and, in applying the universally recognized rule in construing criminal statutes, it is my humble opinion that defendant, under the agreed statement of facts, is not chargeable with the violation of any of the provisions of Act 39 of 1921, and therefore the verdict and sentence appealed from should be avoided and reversed, and the accused should be discharged.