State v. Cleary

92 So. 892, 152 La. 265, 1922 La. LEXIS 2881

Opinion

BAKER, J.

Defendant was indicted for selling intoxicating liquors for beverage purposes, in violation of Act 39 of 1921 (Ex. Sess.) p. 42. The indictment, without specifying the kind of intoxicating liquor, charged merely, that the defendant “did unlawfully sell intoxicating liquors for beverage purposes, contrary to the form of the statute,” etc.

Defendant filed a motion to quash the indictment, pleading that Act 39 of 1921 was unconstitutional, and particularly that section 8 of the statute was violative of section 18 of article 3 of the Constitution, in so far as the statute referred to “federal legislation” for a definition of intoxicating liquors. The motion to quash was overruled, and a bill of exceptions was reserved to the ruling. After conviction and before sentence the plea of unconstitutionality of the statute was repeated in a motion for a new trial, which motion was also overruled, and a bill of exceptions was again reserved to the ruling.-

Section: 18 of article 3 of the Constitution provides;

“The Legislature shall never adopt any system or code of laws by general reference to such system or code of laws; but in all cases shall recite at length the several provisions of the laws it may enact.”

Section 8 of Act 39 of 1921 (Ex. Sess.) provides :

“That the word ‘liquor’ or the phrase ‘intoxicating liquor’ wherever used in this act shall be construed to include alcohol, whisky, brandy, rum, gin, beer, ale, porter, wine, and any spirituous, vinous, malt or fermented liquor or liquids by whatever name called, as defined by federal legislation, and all alcoholic liquids, either medicated, proprietary or patented, which are fit for use as a beverage or for intoxicating beverage purposes, all as defined by federal legislation.”

In State v. Coco (No. 25226) ante, p. 241, 92 South. 883, and again in State v. Anding (No. 25274) ante, p. 259, 92 South. 889, we held that the statute was valid in so far as it forbade the manufacture, sale, etc., for beverage purposes, of any of the intoxicating liquors specified in section 8; that is, alcohol, whisky, brandy, rum, gin, etc. In other words, we held that the expression, “as defined by federal legislation,” did not qualify or refer to those intoxicating liquors that were specified or described by name, alcohol, whisky, etc. We refrained from deciding whether- the statute could validly define other intoxicating liquors by a general reference to “federal legislation.” In Anding’s Case the defendants w'ere' prosecuted for manufacturing one of the kinds of intoxicating liquor that is specified and described by name, i. e., whisky.

In Coco’s Case it was said, and we adhere to the opinion, that it wa’s not necessary for the indictment to specify the kind of intoxicating liquor alleged to have been manufactured, sold, disposed of, transported, delivered, or possessed, or exported from or imported into this state, for beverage purposes. It was said to be sufficient to follow the language of the statute, unless, perhaps, the defendant should, by asking for a bill of particulars, insist upon being informed of the kind or name of the intoxicating liquors referred to in the indictment. It is therefore settled that, in so far as the statute forbids the manufacture or sale, etc., of the intoxicating liquors known as alcohol, whisky, brandy, rum, gin, beer, ale, porter, or wine, it does not violate section 18 of article 3 of the Constitution. If the defendant in this case were accused of having sold some other kind of liquor, declared intoxicating by federal legislation, we would now be called up'on to decide the constitutionality of that part of section 8 of the statute that refers to federal legislation for determining whether any particular kind of liquor (other than alcohol, whisky, brandy, rum, gin, etc.) has been defined and outlawed as an intoxicating liquor. But the accusation was, and the district judge must have found from the evidence, that defendant sold intoxicating liq•uor for beverage purposes; and we have no reason nor right to assume that the intoxicating liquor was not alcohol, whisky, brandy, rum, gin, beer, ale, porter, or wine.

The conviction and sentence appealed from are affirmed.