dissenting:
I cannot agree with the majority opinion. It is the general rule in regard to indictments or informations for statutory offenses, that where an act is made criminal, with the exceptions embraced in the enacting clause, so as to be a part of the description of the offense intended to be punished, it is necessary, in the indictment charging the act, to negative the exceptions so as to show affirmatively that the crime defined was committed. (Dreyer v. People, 188 Ill. 40; Beasley v. People, 89 id. 571.) However, by section 39 of the Prohibition act it is expressly provided: “It shall not be necessary in any affidavit, 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 unlawful, but this provision shall not be construed to preclude the trial court from directing and furnishing the defendant a bill of particulars, when it deems it proper to do so.” It is obvious that it was the intention of the legislature to change the rule above referred to, and if that body has the power to do so this court is bound by such change. We are referred to no section of the constitution depriving the legislature of that power. ■ The constitutional right of one charged with crime, under section 9 of the bill of rights, to know the nature of the offense charged against him is not violated, for the reason that the indictment charges that he illegally possessed the liquor. Section 39 entitles him to a bill of particulars in a proper case. The opinion in this case does not hold section 39 unconstitutional and the meaning of its language cannot be mistaken. This court, as I view it, cannot disregard the plain legislative enactment.
Section 3 of the Prohibition act provides: “No person shall on or after the date when this act goes into effect, manufacture, sell, barter, transport, deliver, furnish or possess any intoxicating liquor except as authorized in this act, and all the provisions of this act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented.” Section 28 provides: “It shall be unlawful to have or possess any liquor intended for use in violating this act or property designed for the illegal manufacture of liquor, and no property right shall exist in any such liquor or property.” This section is directed against the illegal manufacture and sale of intoxicating liquor and instruments for the manufacture thereof. When a defendant is charged with the unlawful sale of intoxicating liquor or the unlawful possession of the same or of such instruments, it cannot be doubted that he is informed of the nature of the charge against him. This is all that is required under section 9 of the bill of rights. An indictment meets the constitutional requirement when it, by statutory description or by other apt averments, identifies the offense. People v. Clark, 256 Ill. 14; Cochran v. People, 175 id. 28; West v. People, 137 id. 189.
Courts of other States and Federal courts have passed upon this question. In Krusoczky v. State, 140 N. E. (Ohio) 614, it was held that in a prosecution for the unlawful possession of intoxicating liquor it was not necessary to' aver that it was possessed or used for beverage purposes. In that case the Supreme Court of Ohio considered the sufficiency of an information under a statute similar to ours, where it was contended that the information was insufficient by reason of failure to allege that the intoxicating liquor was possessed for beverage purposes. That court said: “It is to be noted that the language of the sections quoted makes the offense consist in unlawfully possessing intoxicating liquors, and when that fact appears, in" plain violation of the language of the statute, it is not necessary to go further forward and aver that the same are possessed for any particular purpose, as the lawful purposes for which such liquor may be possessed are affirmatively set forth in the statute, and it is the unlawful possession that is averred in the affidavit; hence a complete crime is charged without the addition of the language, to be used ‘for beverage purposes.’ The Crabbe act, so called, simply outlaws intoxicating liquor except for the purposes therein specified, and the force and effect of the act are, that one who possesses intoxicating liquor is guilty of an offense unless such possession comes within the exceptions thereto, which exceptions may be affirmatively established as a matter of defense.” So in Gavalis v. State, 135 N. E. (Ind.) 147, it was held that where the act defines intoxicating liquor, an indictment for having possession thereof need not allege that the liquor was to be used as a beverage.
The language of the Illinois Prohibition act is similar to that of the national Prohibition act, known as the Volstead act, many sections being the same in both acts. Section 39 of the former is in the identical language of section 32 of title 2 of the national Prohibition act. The decisions of the Federal courts are therefore persuasive in the consideration of this question. In the case of Massey v. United States, 281 Fed. 293, and Hensburg v. United States, 288 id. 370, it was held that an indictment for unlawful possession of intoxicating liquor contrary to the national Prohibition act need not, in view of the provisions of section 32 of title 2 of said act, negative the purpose for which the accused may have possessed the liquor. To the same effect are Davis v. United States, 274 Fed. 928, and Cabaile v. United States, 276 id. 769. No cases have been cited holding the contrary view. The opinion is not supported by authority and is contrary to these decisions.
Duncan, C. J., and Farmer, J.: We concur in the foregoing dissenting opinion of Mr. Justice Stone.