In this case the defendant has been convicted and sentenced under an indictment which charges that "on __________ day of December, 1925, the said Martha Pawlak, in the said county of Marshall did unlawfully and feloniously transport from one place to another in said county and state intoxicating liquors against the peace and dignity of the State."
Transportation of intoxicating liquor from one place to another within the state, except under certain circumstances is made an offense by Sec. 31a, Ch. 115, Acts of 1921, which appears in the Code of 1923 as Sec. 31a, Ch. 32A. That section is in part as follows: "It shall be unlawful for any person to order, purchase, sell, or cause intoxicating liquors, to be transported into the state, or from one place to another within the state, in any manner, except pure grain alcohol, for medicinal, pharmaceutical, scientific and mechanical purposes, *Page 556 and wine for sacramental purposes to be used by religious bodies, as now provided by law."
It being no crime to transport liquor under the conditions excepted by the statute, it has been held by this court that an indictment for transportation which does not negative the exceptions is vulnerable on demurrer. "An indictment under Section 31a of Chapter 115, Acts 1921, Section 31a of Chapter 32A, Barnes' Code 1923, which fails to negative the exceptions contained therein, is bad on demurrer and motion to quash."State v. Taylor, 95 W. Va. 518.
The demurrer to the indictment will therefore be sustained, and the case remanded.
Demurrer sustained; case remanded.