State v. Hebert

103 So. 742, 158 La. 209, 1923 La. LEXIS 2122

• Court: Supreme Court of Louisiana
• Decided: November 12, 1923
• Docket: No. 26165.
• Status: Published

Opinions

O’NIELL, C. J.

Appellant was convicted of manufacturing intoxicating liquor for beverage purposes, and was sentenced to pay a fine and be imprisoned. The record contains eight bills of exception, presenting seven complaints.

The first complaint is that the district judge overruled appellant’s plea to the jurisdiction of the court, based upon the fact that he had been indicted by the federal grand jury for a violation of the Volstead Act (U. S. Comp. St. Ann. Supp. 1923, § 10138% et seq.) in the same alleged transaction for which he was indicted and was about to be put on trial for violation of the Hood Law (Act 39 of Ex. Sess. 1921, p. 42). The plea was founded upon the idea that the prosecution in the federal court for an alleged violation of the Volstead Act, and in the state court for an alleged violation of the Hood Law, for one and the same alleged manufacturing of intoxicating liquor, violated the constitutional guaranty against a double prosecution for one offense.

The point was decided the other way, by the Supreme Court of the United States, in United States v. Vito Lanza et al., 260 U. S. 377, 43 S. Ct. 141, 67 L. Ed. 314.

The second complaint is that the judge refused to compel the district attorney to produce in court the intoxicating liquor which appellant was accused of having manufactured, and the apparatus which he was accused of having used.

It is not essential to a valid conviction, for the offense of manufacturing intoxicating liquor for beverage purposes that either the liquor itself or the apparatus with which it was made should be offered in evidence or produced in court.

The third complaint is that the judge overruled appellant’s objection to the state’s putting him on trial, or offering any evidence in the case, without first producing the search warrant" on which his residence was searched.

The evidence on which the prosecution was based was obtained by federal officers, who searched plaintiff’s premises under authority of a warrant from the federal court. There is no merit in the argument that the evidence obtained in that way w’as not admissible in the prosecution in the state court.

The fourth complaint is that the district attorney was allowed to amend the bill of particulars which he had furnished in response to a motion by appellant’s counsel, by changing the designation of the place where the intoxicating liquor was alleged to have been manufactured.

There are three reasons why the complaint is not serious. The change of location of the alleged manufacturing outfit was very slight in point of distance; the amendment of the bill was made before the trial had commenced ; and the attorney for defendant did not ask for a continuance of the case, or announce that the amendment of the bill affected his defense in any way.

The fifth complaint is that the judge overruled defendant’s objection to going to trial without an allegation, either in the indictment or in the bill of particulars, that the alleged manufacturing of liquor was done without a permit.

The charge that the defendant had manufactured the intoxicating liquor — whisky— unlawfully and for beverage purposes was sufficient to accuse him of one of the offenses denounced in the first paragraph of the first section of the statute. It is only when the accusation of manufacturing, selling or otherwise disposing of, transporting, delivering, possessing, importing, or exporting, of intoxicating liquor, is alleged to have been ‘•for nonbeverage purposes,” according to the second paragraph of the first section of the statute, that it is necessary to allege that the party accused was not “the holder of a legal permit therefor from proper federal authorities.” The statute does not provide — or leave the inference — that a person might, hold a permit to manufacture intoxicating liquor for beverage purposes.

The sixth complaint is that the judge overruled an objection made by defendant’s counsel to a question asked by the district attorney in cross-examining a defense witness, who had testified to the defendant’s general reputation for good character. There were two such objections and rulings, with regard to different witnesses. The question was, in each instance, whether the witness had ever heard of the defendant’s selling “shinny” in the neighborhood; and the answer, in each instance, was that the witness had heard of defendant’s selling “shinny,” but had not bought any of it. “Shinny,” as we are informed, is a very intoxicating moonshine whisky; for which reason, the answer elicited by the district attorney’s question was quite pertinent — coming from a character witness — in a prosecution for an alleged violation of the Prohibition Law.

. [7] The seventh complaint is that the judge refused to give or announce, and be governed by, the several so-called special charges requested by defendant’s counsel. The requested charges, so called, were not propositions of law at all. They were statements or conclusions of what facts had or had not been proven. For that reason the judge’s ruling was correct.

Our conclusion is that the verdict is correct. But the alternative sentence of imprisonment for 6 months, over and above the sentence of GO days’ imprisonment, first imposed, is in excess of the maximum penalty imposed by the statute, and is therefore invalid.

The language declaring what shall be the penalty — in the third section of the statute— is not as plain as it might be, except in so far as it makes the maximum penalty that can be imposed for the first offense, of manufacturing intoxicating liquors, a fine of $500 and imprisonment for 60 days, viz.;

“Sec. 3. That any person who shall violate the provisions of this act by manufacturing', or having in possession, for sale, or, by selling intoxicating liquors shall be guilty of a misdemeanor, and upon conviction for the first offense shall be fined not more than five hundred dollars ($500.00), and be imprisoned not less than ten days nor more than sixty days, and for the second or subsequent offense, shall be fined not less than one hundred dollars ($100.-00'), nor more than one thousand dollars ($1,000.00), and be imprisoned not less than thirty days nor more than twelve months; and any person who shall otherwise violate the provisions of this act shall, upon conviction, be fined as herein above provided, or, may be imprisoned not exceeding the maximum limits herein above provided, or, may be both fined and imprisoned, at the discretion of the court.”

It seems plain, therefore, that the penalty for manufacturing intoxicating liquor for sale, or for having it for sale, or for actually selling it, is both fine and imprisonment; whereas, the penalty for manufacturing intoxicating liquor for beverage purposes but not for sale, or the penalty for possessing it for beverage purposes but not for sale, may be either fine or imprisonment, or both, at the discretion of the court.

This is the defendant’s first offense, as far as the accusation and the proof go. The offense was manufacturing the whisky for beverage purposes, but not for sale. Therefore the maximum penalty for the offense was a fine not exceeding $500, or imprisonment for a term not less than 10 nor more than 60 days, or both the fine and imprisonment, within those limits, at the discretion of the court.

The reason why the Legislature left it to the discretion of the courts to impose as light a fine as the judge might deem just, either with or without -a jail sentence, when the manufacturing or possessing of the liquor was not for sale, is obvious. In the first paragraph of section 4 of the' statute, it is declared lawful for any one to possess intoxicating liquors, legally acquired, in his residence or place of abode, for his own enjoyment and that of his family, and for the entertainment of his guests. And, in the second paragraph of the same section, it is declared lawful for any householder to brew beer or to ferment wine for the family use and for the entertainment of guests. Whether it was wise or unwise for the Legislature to make those exceptions in the law is a matter which the courts are not officially concerned with. We mention the immunity given to the home brewers and fermenters, and to the possessors of private stock for the entertainment of guests, as showing that the Legislature did not intend to be as severe in the punishment of the maker or possessor of intoxicating beverages not for sale, as in the punishment of the lawbreaker who allows financial profit to reconcile his mind to infamy. Even as to him, the Legislature has limited the fine to $500, and the term of imprisonment to 6 months, for the first offense.

That discussion, however, is somewhat beside the question in this case, because the appellant was convicted of manufacturing the whisky only for beverage purposes, not for sale. For that offense, the judge had the authority and discretion to impose the fine not exceeding $500 or the imprisonment for a term not less than 10 nor more than 60 days, or to impose both the fine and imprisonment, within the limits — or to the limit —but not beyond.

No explanation has been given for the alternative sentence of imprisonment beyond the maximum term fixed by the statute. It is said in the brief of the learned counsel for appellant that he assumes that the judge relied upon the Act 51 of 1906, p. 85. But that cannot be so, becausd the statute does not purport to deal with the length of prison terms. If merely declares that every sentence of imprisonment in a parish jail, or without specification as to the place of imprisonment, “shall mean imprisonment with hard labor,” etc., viz.:

“That in all criminal prosecutions, where any person is sentenced to imprisonment, or to imprisonment in default of the payment of the fine imposed, whether in the parish jail, or without qualification as to the nature of such imprisonment; or where any person is sentenced to imprisonment in default of the payment of the fine imposed for the violation of any valid ordinance of any of the political subdivisions of the state, such imprisonment shall mean imprisonment with [hard] labor; and every person so sentenced, if not put to-work under the provisions of Act No. 29 of 1894, as amended by Act No. 46 of 1902, shall be required to work on the public roads, streets, or levees of the parish or municipality responsible for the costs of the prosecution of such person, or within the walls of the jail, under such rules and regulations as shall be prescribed by the police jury or city council of such parish or municipality.”

We assume that the judge, in this case, interpreted section 980 of the Revised Statutes as allowing him to impose an alternative sentence of imprisonment not exceeding one year, over and above the maximum punishment allowed by the statute which was..violated. Our opinion is that section 980 of the Revised Statutes, putting a maximum limit of one year on the term of imprisonment that may be imposed as an alternative sentence, or in default of the payment of a fine, is applicable only when the statute imposing the fine does not itself say that an alternative sentence of imprisonment, of a certain limit, may be imposed. Section 980 provides:

“Every person being adjudged to pay a fine, shall, in default of payment or recovery thereof, be sentenced to be imprisoned for a period not exceeding one year.”

Surely that general provision in the law cannot prevail over a particular provision in a subsequent statute, declaring that, for the violation of that particular statute, the penalty of imprisonment shall, not exceed 60 days — and shall be'not less than 10 days— whether it be imposed in addition to or as an alternative, or, in default, of a fine not exceeding’ $500. It is not possible that section 980 of the Revised Statutes prevents the Legislature from enacting a law declaring that the maximum term of imprisonment, as an alternative penalty, in default of payment of a fine, for the violation of that law shall be less than one year.

There is nothing inconsistent in the Legislature’s saying — as it does say in section 980 of the Revised Statutes — that, whenever a person is sentenced to pay a fine, he shall, in default of payment of the fine, be imprisoned for a term not exceeding one year, and then saying, in the Act 39 of 1921, that, for a violation of this act, the penalty of imprisonment shall not exceed 60 days, whether it be imposed as an alternative sentence, in default of the fine, or be imposed in addition to the fine (which shall not exceed $500).

If — this being the defendant’s first offense —the judge had given him an alternative sentence, as the judge had the right to do, by sentencing him to pay a fine fixed by the judge (not over $500), or to be imprisoned in default thereof, the judge could not have made the term of imprisonment longer than 60 days. That is certain, because the statute, in very plain language, says that the penalty of imprisonment shall not exceed 60 days, whether it be imposed as an alternative, in default of payment of a fine, or in addition to a fine — not exceeding $500. If the judge intended that the defendant should serve a term in prison — fine or no fine — and that he should also be given an inducement to pay a fine, the judge might have fined him and sent him to jail for a term less than 60 days, and, at the same time, sentenced him to imprisonment for the remainder of the 60 days, or for any part thereof, in default of his paying the fine.

The sentence in this case is, not a fine of $500 or imprisonment for 60 days, or even a fine of $500 and imprisonment for 60 days. The sentence is that the defendant shall be imprisoned for 8 months in default of his paying a fine of $500, and that he shall be imprisoned only 60 days in the event of his paying the $500.

There are three adjudged cases analogous to the case before us. State ex rel. Taquino v. Arnauld, Recorder, 49 La. Ann. 104, 21 So. 177; State v. Voss, 49 La. Ann. 444, 21 So. 596, 62 Am. St. Rep. 653; and State ex rel. Daubert v. Recorder, 52 La. Ann. 1079, 27 So. 5S9.

Act 41 of 1890, p. 33, authorized the city of New Orleans, through its recorders, to enforce obedience to the city's ordinances “by fine or imprisonment, or both, or by imprisonment in default of the payment of the fine; provided, that the fine shall not exceed twenty-five dollars for each offense, nor the imprisonment [be] more than thirty days,” etc.

In State ex rel. Taquino v. Arnauld, Recorder, supra, the relator was convicted of a violation of Ordinance No. 12755, the penalty for which was—

“A fine not to exceed twenty-five ($25) dollars or imprisonment in the parish prison for a term not to exceed thirty (30) days, or both, or imprisonment in said parish prison for a term not. to exceed thirty (30) days in default of the payment of said fine; provided, that the fine shall not exceed twenty-five ($25) dollars for each offense nor the imprisonment Lbe] more than thirty (30) days.”

Under the language of the ordinance and in view of section 9S0 of the Revised Statutes, the recorder gave a sentence somewhat like the sentence imposed in the case before us. We quote from the decision, viz.:

“The sentence imposed upon relator was to pay a fine of $25, and to be imprisoned for 30 days in the parish prison, and, in default of the payment of the fine, to be imprisoned an additional 30 days.”

The court annulled the extra or excessive sentence, saying:

“The additional imprisonment for nonpayment of the fine, added to that imposed for violation of the ordinance, cannot exceed thirty days.”

In State v. Yoss, supra, the defendant was convicted of violating an ordinance forbidding lotteries, and imposing a penalty similar to that imposed by the ordinance violated in the Taquino Case. Yoss was sentenced to pay a fine of $25 and be imprisoned for 10 days, and, in default of payment of the fine, to be imprisoned for an additional term of 20 days — the remainder of the maximum term allowed by the statute. This court affirmed the sentence, saying that the statute was “saved by the proviso limiting the fine to $25 and all imprisonment to 30 days.”

The same question came up in State ex rel. Daubert v. Recorder, 52 La. Ann. 1079, 27 So. 589, where the relator was sentenced to pay a fine of $25 and to serve 5 days in prison, and, in default of payment 0‡ the fine, to serve an additional 25 days in prison. This court affirmed the sentence, on the ground that both the absolute sentence of imprisonment and the alternative sentence, added together, did not exceed the maximum term fixed in the ordinance or by the statute authorizing it.

The ruling made in Mayor and Selectmen of the Town of Homer v. Blackburn, 27 La. Ann. 544, is also very much in point.

There is an earlier case, State v. Jumel, 13 La. Ann. 399, where the court used language which we cannot reconcile with the subsequent rulings or with our own opinion, and w'hich must therefore be considered overruled. The same may be said of the ruling in State ex rel. Courrege v. Mayor, 50 La. Ann. 45, 23 So. 92, so far as it is pertinent.

In State v. Authement, 139 La. 1070, 72 So. 739, the defendant w'as convicted of an offense for which the penalty was a fine not less than $100 nor more than $5,000, or imprisonment in jail for a term not less than 90 days nor more than 2 years,' or both the fine and imprisonment, at the discretion of the court. See section 24 of Act 189 of 1910, p. 302. He was sentenced to pay a fine of $301 or be imprisoned for the minimum term of 90 days. The question was whether this court had jurisdiction — whether the fine was actually imposed. We concluded that the fine w'as actually imposed, notwithstanding it w'as' only an alternative sentence. But the writer of the opinion in the case assumed that the alternative penalty of imprisonment for 90 days — even though it w'as the minimum term fixed by the statute w'hich was violated — was not imposed under authority of the statute w'hich was violated, but was imposed under authority of section 980 of the Revised Statutes. The section of the Revised Statutes, however, could not possibly have controlled the judge in fixing the sentence, because the statute which w'as violated fixed the maximum term of imprisonment twice as long as the maximum term fixed by section 980 of the Revised Statutes. The following expression in the opinion, therefore, was founded upon the presumption — w'hich wfe are constrained to say was not substantial — that the alternative sentence of 90 clays’ imprisonment was imposed, not under authority of the statute that was violated, but under authority of section 980 of the Revised Statutes, viz.:

“The pronouncing of this alternative sentence at that time, or, as one might say, thus anticipatorily, is done as a mere matter of convenience; in reality the case is ripe for this alternative sentence, only after the accused has failed to pay the fine, and the recovery of it out of his property has been found to be impracticable.”

The dissertation which we have quoted was not essential to the ruling-and is therefore not authoritative.

The verdict appealed from is affirmed; the sentence to pay a fine of $500 and costs, and to be imprisoned 60 days, is affirmed; the additional sentence of imprisonment for 6 months in default of payment of the fine is annulled.