Fuller v. City of Jackson

Anderson, J.,

after stating the facts as above, delivered the opinion of the court.

The paragraph of section 1746 of the Code of 1906, which is the ordinance of the city under which the defendant was convicted, is as follows: “If any person shall (a) sell or barter, or give away to induce trade, or keep for sale or barter, or to be given away to induce trade, any vinous, alcoholic, malt, intoxicating, or spirituous liquors, or intoxicating bitters, or other drinks, which if drank to excess will produce intoxication, in any quantity less than one gallon, without having a license therefor in pursuance of this chapter,” etc. The language, “which if drank to excess will produce intoxication,” qualifies the terms “vinous, alcoholic, malt, intoxicating, or spirituous liquors, or intoxicating bitters, or other drinks.” There are alcoholic drinks which are known to the law to be intoxicating. Within this class are alcohol, wine, beer, ale, porter, whisky, brandy, gin, rum, and perhaps others. Such liquors, according to the common understanding, are intoxicating. The courts take judicial notice of the fact that they are alcoholic liquors, and will produce intoxication when drunk to excess. 23 Cyc. 61, 62, 63; 17 Am. & Eng. Ency. of Law (2d ed.) pp. 198, 199, 200, 201. There will be found collated in these two authorities the cases on this subject. In a case where the liquor in question belongs to this class, it is not necessary for the state to prove that it will intoxicate when drunk to excess; while, on the other hand, if it is not within this class which the court judicially shows are intoxicating, it is necessary for the state to prove that if drunk to excess it will cause intoxication. The term “alcoholic” is a general term which seems to have been thrown in rather for good measure than for any purpose. The statute is directed against alcoholic intoxicants. The sale of alcoholic liquors is prohibited provided they contain sufficient alcohol to intoxicate when drunk to excess.

The history of what is commonly known as the “prohibition movement” in this state, which resulted in the enactment of the statutes on this subject now in force, shows that it was directed against the sale of intoxicating liquors. Construing all these statutes together, it is apparent that the object of the legislature was to prohibit the sale of intoxicating liquors. This is clearly demonstrated by sections 1747, 1748, 1749, 1750, 1752, 1755, 1758, 1759, 1765, 1767, 1773, 1776, 1791, 1794, 1797, and 1798 of Code 1906, and also chapter 117 of the Laws of 1908, which is a memorial to congress, to enact a law to prevent the issuance of United States revenue license to' any person selling “intoxicating liquors” in any locality where the sale is prohibited by local laws.

It is contended that the case of Edwards v. City of Gulfport, 49 South. 620, is authority for the instructions given in these cases for the state. The liquor sold in the Edwards case was “Pabst.Mead,” containing 4.6 per cent, alcohol to each bottle; and the testimony showed that two bottles of it would intoxicate an average man. The court charged the jury that, if the liquor sold was a malt or alcoholic liquor, they should find the defendant guilty, whether shown to be intoxicating or not. Judge Whitfield uses this language in that case: “This case falls squarely within the case of Reyfelt v. State, 73 Miss. 415, 18 South. 925. On the evidence in this case it is perfectly manifest that a conviction is proper on either one of two grounds: First, that the liquor was shown to be both alcoholic and malt liquor; and, second, that it was shown to contain enough alcohol to make an average man drunk if he drank two bottles.” Marks v. State, 159 Ala. 71, 48 South. 864, is referred to as authority for the Edwards case. It is true that in the Marks case (reviewing the statute substantially the same as section 1746, Code 1906) the Alabama court held that the language, “which if drunk to excess will produce intoxication,” did not relate to each and all the liquors preceding it. However, the court held further in that case (exactly contrary to what was held in the Edwards case): “Whether a beverage containing 1.46 per cent. of alcohol by weight, and 1.88 per cent, by volume, and .20 per cent, maltose, making 2% teaspoonfuls of alcohol per pint, is an alcoholic, spirituous, vinous, malt, or intoxicating liquor, or whether if drunk to excess will produce intoxication, is a question of fact for the jury.” The Reyfelt case is not authority for the Edwards case. In the former the liquor sold was home-made wine; and the court held it was unlawful to sell it regardless of the opinion of witnesses that it would not intoxicate. The decision of the court- was manifestly correct, because wine is one of the liquors which has an accepted judicial meaning, and judicially known to be intoxicating when drunk to excess.

It is contended on behalf of the state that the purpose of the legislature was to prohibit the sale of all drinks as beverages containing alcohol in any quantity, however small; the object being not alone to lessen drunkenness, but to put out of reach of the people drinks which have a tendency to create a thirst for intoxicants. There is nothing in our statutes, nor in the history of the “prohibition movement,” to indicate such purpose.

If the charges complained of in the instant cases, and which were authorized by the Edwards case, are the law, then if a person should sell, as a beverage, a barrel of water with a teaspoonful of alcohol in it, he would violate this statute; and so-would the owners of soda fountains, selling the usual cold drinks, using various extracts in the same, containing a small portion of alcohol for their preservation.

These views necessitate, in my judgment, the overruling of so much of the Edwards case as holds that the charge in question in that case was a correct statement of the law. That case stands alone, unsupported, and. is unsound.

In.both of these cases the court should have instructed the jury peremptorily to find a verdict for the defendant, because neither of the drinks sold was shown to be intoxicating when drunk to excess. In ease No. 14,301, if the “Malt Ale” sold had been proven to be ordinary ale, then the jury would have been authorized to convict, whether the ale was shown to be intoxicating or not when drunk to excess; ale being in the class of liquors which are judicially known to be intoxicating.

The judgments in these cases, both of them, are, therefore, reversed and the causes remanded.

Reversed.