ROGERS, J.
Appellant prosecutes this appeal from a conviction and sentence for possessing for sale intoxicating liquor for beverage purposes. He relies for reversal upon four bills of exception.
On motion of appellant, a bill of particulars was ordered. In obedience to this order, the district attorney showed that the liquor consisted of three small bottles of tincture of ginger containing 90 per cent. of alcohol "possessed in the Hub Drug Company, Inc., of which defendant is manager," etc.
The first bill of exception reserved was to the ruling of the court in refusing the request of counsel for defendant to dismiss the affidavit on the ground that no crime had been committed by defendant.
It is argued on behalf of defendant that the bill of particulars, taken in connection with the affidavit, shows that the liquor was not in the possession of defendant, nor was it his property, but it was the property of, and in the possession of, the Hub Drug Company; and that the possession of tincture of ginger, which is esteemed and used by numerous persons for its medicinal virtues, by a drug store does not constitute a crime, notwithstanding that one of the clerks may have sold a bottle of the concoction during the absence of the manager.
We think it may be safely conceded that the mere possession by a druggist of well known medical preparations containing alcohol does not make him liable under the statute for unlawful possession of intoxicating liquors for beverage purposes. If, however, he sells or deals in such a compound for use as a beverage, since he must first possess it before he can sell or deal in it, he makes himself criminally liable for the illegal possession for sale of intoxicating liquor for beverage purposes. It becomes a question of fact in which the circumstances of each case must determine the intent.
The present prosecution is against the defendant as manager of the Hub Drug Company, Inc., and not against the corporation itself.
Section 1 of Act 39 of 1921 provides that "no person shall * * * possess intoxicating liquors * * * for beverage purposes."
Section 3 of the statute declares:
"That any person who shall violate the provisions of this act by * * * having in his possession, for sale, * * * intoxicating liquors shall be guilty of a misdemeanor," etc.
In paragraph 1 of section 8 of the act, it is provided that:
"The word `person' shall mean natural persons, associations, copartnerships, corporations, and their clerks, officers, agents and servants." (Writer's italics.)
It will thus appear that, under the express language of the statute itself, artificial, as well as natural persons; agents as well as principals, servants as well as masters, may be equally guilty of violating the statute, and subject to the penalties therein prescribed.
While corporations must necessarily act through their officers, agents, servants, and employees, and may be held for violations of the statute by their said representatives, the officers, agents, servants, and employees themselves may be prosecuted and punished for their own illegal acts.
The affidavit in this case is against defendant as manager of the Hub Drug Company, and is clearly within the language of the statute, the defendant, as manager, being a clerk, officer, agent or servant of said corporation in the sense of paragraph 1 of section 8 of the act. As said manager, he was in control and possession of the intoxicating liquor set forth in the affidavit and bill of particulars. If, in these circumstances, he could not be prosecuted and punished for possessing said liquor for sale for beverage purposes in the drug store, the door would be opened wide to the indiscriminate and unrestricted possession and sale of intoxicating liquors by the simple expedient of organizing corporations to handle the liquor traffic.
Bill of exception No. 2 was reserved to the action of the judge in overruling an objection to the testimony of a witness that, in the absence of defendant, he had purchased the liquor in question from an employee of the drug store. The ground of objection was that the defendant was not charged with selling but with possession, and that it had been previously shown that he was not present when the sale was made. We find no error in the ruling.
Defendant did not deny that the compound that he was charged with having in his possession for sale was kept in the drug store for sale. His only defense was that it was possessed and sold for medicinal, and not for beverage, purposes, and that the possession of the drug store was not possession by him.
The prosecuting witness testified that he had purchased this particular compound for beverage purposes, and that he had on other occasions purchased the same concoction from defendant and drank it in his presence at the soda fountain in the drug store of which defendant was manager. The fact that defendant happened to be absent when this particular sale was made did not affect the admissibility of the testimony for the purpose of showing that the compound was possessed for sale for beverage purposes. The evidence that it was sold for beverage purposes by defendant when present, and by his subordinate in his absence, is the best evidence that it was possessed for such purpose. Where motive, guilty knowledge or criminal intent forms an essential or indispensable part of the inquiry, proof of another offense is admissible. Marr's Criminal Jurisprudence, § 406; State v. Oden, 130 La. 602, 58 So. 351; State v. Morgan, 129 La. 154, 55 So. 747; State v. Williams, 111 La. 179, 35 So. 505.
Bill of exception No. 3 was reserved to the ruling of the judge in admitting in evidence two of the three bottles of ginger purchased, over defendant's objection that the defendant was charged with possessing and not with selling, and that it was not shown that the purchase was made from the defendant; nor that he was present at the time; nor that it was made with his authorization. The ruling was correct.
The judge, in his per curiam, states that the evidence was admitted in order that he might inform himself of the alcoholic content of the Jamaica ginger alleged to have been possessed for sale for beverage purposes by the defendant, and, because, the proof had shown that the defendant had, on several occasions, sold this concoction for beverage purposes, and that, as manager of the Hub Drug Company, had possessed it on the occasions for which he was being prosecuted.
The subject-matter covered by this bill has been discussed in connection with the preceding bill. We may add, however, that defendant cannot escape responsibility because the unlawful sale was made in his absence if the act was done with his express or implied authority, and in accordance with the custom of doing business in said drug store. A strong inference that the clerk was acting within the scope of his authority is to be deduced from defendant's own conduct and custom of selling this particular compound for beverage purposes.
The fourth and last bill of exception was reserved to the overruling of defendant's motion for a new trial. The ruling was correct. The motion was based on the ground that defendant's conviction and sentence was contrary to the law and the evidence, and otherwise presented the same issues involved in the bills which we have heretofore discussed.
The conviction and sentence appealed from are affirmed.
O'NIELL, C.J., and BRUNOT and LECHE, JJ., dissent, and O'NIELL, C.J., hands down reasons.
ST. PAUL, J., concurs, and files reasons.
ROGERS, J.
On Rehearing.ST. PAUL, J.
Mr. Justice ROGERS, Mr. Justice LAND, and Mr. Justice THOMPSON adhere to the opinion herein originally handed down by Mr. Justice ROGERS.
I adhere to my concurring opinion, to which I now add:
1. The information was sufficient, since it charged the offense in the words of the statute, to wit, that defendant had in his possession intoxicating liquor for sale for beverage purposes.
2. The bill of particulars merely set forth that the kind of liquor possessed was tincture of ginger containing 90 per cent. of alcohol.
3. The statute provided that the phrase intoxicating liquor "shall be construed to include * * * 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.
4. And federal legislation (the Volstead Act, in pari materia) defines intoxicating liquor as any alcoholic liquid, either medicated, proprietary or patented, "containing one-half of 1 per cent. or more of alcohol by volume," which is fit for use as a beverage or for intoxicating beverage purposes.
So that when defendant was charged with possessing intoxicating liquor for sale for beverage purposes, he was charged with the offense denounced by the statute; and when the bill of particulars named tincture of ginger containing 90 per cent. of alcohol, defendant was informed that the prosecution intended to prove that said tincture of ginger was a medicated alcoholic liquid containing full "one-half of one per cent. or more of alcohol by volume," and that it was "fit for use as a beverage, or for intoxicating beverage purposes."
For, even if the bill of particulars be considered as written into the information as a videlicet (thus, "intoxicating liquor, to wit tincture of ginger containing 90 per cent. alcohol"), the information would still charge that defendant possessed "intoxicating liquor." And since tincture of ginger is neither alcohol, whisky, brandy, rum, gin, beer, ale, porter, nor wine, but is a medicated alcoholic liquid, it follows that the state thereby charged that it came within that other, and above mentioned, definition of the statute.
And what I said in my concurring opinion, in effect amounted to this, that it would not have sufficed for a conviction to have proved merely that the medicated liquid (tincture of ginger in this case) contained one-half of 1 per cent. or more of alcohol by volume; but that proof was required also that said liquid, after being so medicated, was still fit for use "as a beverage or for intoxicating beverage purposes"; that the question whether this particular medicated liquid was or was not fit for use as a beverage or for intoxicating beverage purposes, presented in this case only a question of fact, over which this court had no appellate jurisdiction; and finally that the question whether a drug store possessed medicated liquids containing alcohol for medicinal purposes or for intoxicating beverage purposes was one of fact, which addressed itself to the intelligent appreciation of a trial judge, but over which this court again had no appellate jurisdiction.
For the rest, that opinion speaks for itself, and seems to be in accord with the following: King Wall v. State, 58 Miss. 737, 38 Am. Rep. 344; Bertrand v. State, 73 Miss. 51, 18 So. 545; and Commonwealth v. Sookey, 236 Mass. 448, 128 N.E. 788, 11 A.L.R. 1230.
The CHIEF JUSTICE and Mr. Justice BRUNOT still adhere to their dissent, and Mr. Justice OVERTON is recused.
Decree.
It is therefore ordered that the decree hereinbefore handed down, affirming the judgment of the court below, be now reinstated and made the final judgment of this court.
OVERTON, J., recused.
O'NIELL, C.J., and BRUNOT, J., dissent, and O'NIELL, C.J., will hand down reasons.
ST. PAUL, J. (concurring in decree).
The question whether a drug store possesses concoctions, such as tinctures, extracts, essences, etc., for beverage or for medicinal purposes is one of fact, which addresses itself to the intelligent appreciation of a trial judge; but over which this court has no appellate jurisdiction. Likewise the question whether such concoctions, tinctures, extracts, essences, etc., be or be not "fit for use as a beverage or for intoxicating beverage purposes" is also one of fact (not of judicial cognizance).
But I concur with the CHIEF JUSTICE that the percentage of alcohol in such concoctions and alleged beverages is quite immaterial if the other ingredients make them unfit for beverage purposes; the proportion of other ingredients being much more pertinent.
And, as a matter of law, I think the term "intoxicating beverages," does not include every liquid thing capable of being swallowed by a human being for the purpose of producing intoxication. I think the term includes only such liquids as are capable of or intended for constant or regular or frequent use, without deleterious effect other than intoxication.
For the purpose of the Eighteenth Amendment, and of the statute passed for the enforcement thereof, is to suppress drunkenness; and the drunkenness aimed at is habitual drinking, not mere sporadic cases of freak intoxication.
But the trial judge must have had (or thought he had), before him, evidence sufficient to satisfy himself that tincture of ginger might be used constantly, or regularly, or frequently, for beverage purposes, without injurious effect upon the consumer other than intoxication. And his finding of fact is, for the purposes of this case, final.
O'NIELL, C.J.
I respectfully dissent from the opinion and decree which has been submitted for our consideration. My opinion is that the bill of information or affidavit, as explained by the bill of particulars, did not set forth a violation of the Act 39 of 1921. The accusation, as specified in the bill of particulars, was that the defendant, as manager of the Hub Drug Company, Inc., had had in his possession in the drug store, for sale for beverage purposes, intoxicating liquor, consisting of three small bottles of tincture of ginger, containing 90 per cent. of alcohol.
In the eighth section of the statute, the phrase "intoxicating liquor" is said 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. (The italics are mine).
It was not alleged in the bill of information or affidavit that the tincture of ginger was one of those "alcoholic liquids, either medicated, proprietary or patented, which are fit for use as a beverage or for intoxicating beverage purposes, as defined by federal legislation."
I do not know and do not believe that tincture of ginger, even though it contains 90 per cent. of alcohol, is fit for use as a beverage or for intoxicating beverage purposes; nor do I know or believe that it has ever been so defined by federal legislation. My recollection of the taste and effect of a dose of tincture of ginger is that it is not fit for use as a beverage or for intoxicating beverage purposes. And I doubt that it has ever been so characterized by federal legislation. I do not propose to search through all of the acts of the Congress of the United States to find out whether tincture of ginger, containing 90 per cent. of alcohol, has ever been "defined by federal legislation," as one of those "alcoholic liquids, either medicated, proprietary or patented, which are fit for use as a beverage or for intoxicating beverage purposes." As it is not alleged in the bill of information or affidavit that tincture of ginger is fit for use as a beverage or for intoxicating beverage purposes, that ought to end the case. I imagine that all of the drug stores are full of alcoholic liquids, containing a high percentage of alcohol, that are not fit for use as a beverage or for intoxicating beverage purposes. And that is why the law is so specific in dealing with the right of the drug stores to handle such liquids.
I am not considering the question of constitutionality of the Act 39 of 1921 in so far as it attempts to delegate to the Congress of the United States the authority to say what shall be a crime in this state, or in so far as the state statute refers us to the federal legislation generally, to determine whether the possession of any specified liquor or liquid shall be a crime in this state. The attorney for appellant did not plead that the statute was unconstitutional in that respect. He relied upon the proposition that the bill of information or affidavit did not charge the commission of any crime or misdemeanor. And I agree with him. It was not charged that the alleged intoxicating liquor was alcohol, whisky, brandy, rum, gin, beer, ale, porter or wine; or that it was a "spirituous, vinous, malt or fermented liquor or liquid," as defined, or declared to be an intoxicating liquor, by federal legislation. And, finally, it was not charged that the tincture of ginger was one of those medicated or proprietary or patented liquids that are fit for use as a beverage or for intoxicating beverage purposes, as declared or defined in federal legislation.
The allegation that the tincture of ginger contained 90 per cent. of alcohol was not the same as to say that it was fit for use as a beverage or for intoxicating beverage purposes. It depends upon what was the other 10 per cent.
The Legislature has said, quite plainly, in the eighth section of this statute, that, unless a medicated, proprietary or patented liquid has been outlawed or proscribed by federal legislation as an alcoholic liquid, fit for use as a beverage or for intoxicating beverage purposes, it is not a crime or misdemeanor to have such liquid in one's possession for sale for beverage purposes, especially in a drug store.
O'NIELL, C.J. (dissenting).
In the original opinion rendered in this case, the question of law on which the members of the court have disagreed was not mentioned. The reason why the question was not then referred to was that Mr. Justice ROGERS, and perhaps the Justices who concurred in his opinion, believed that the proposition of law which I discussed in my dissenting opinion, and which Mr. Justice ST. PAUL discussed in his concurring opinion, was not presented for decision in the defendant's motion to quash the affidavit and dismiss the prosecution.
After the rehearing was granted, defendant's attorney filed in this court an assignment of errors, averring specifically that the indictment or affidavit, on which the prosecution was founded, did not set forth a crime under Act 39 of 1921, for the reason which is now so elaborately discussed.
In my humble opinion, the filing of the assignment of errors was an unnecessary formality, because, if the affidavit, taken in connection with the bill of particulars, did not set forth a crime under the terms of the statute, the error was apparent on the face of the record. It is too well settled to admit of discussion that a conviction founded upon an insufficient indictment is a matter which we may take notice of, even though the defendant did not except to the indictment before entering his plea. In the city courts, a prosecution may be founded upon an affidavit instead of an indictment. We are therefore dealing with the affidavit in this case as if it were a bill of indictment.
Mr. Justice ST. PAUL and Mr. Justice BRUNOT and I were of the opinion originally that the defendant's motion to quash was sufficient to raise the question which we must finally decide. The motion to quash or dismiss the prosecution was only a verbal motion, because the city court is not a court of record. The only record of the motion is in the bill of exceptions reserved to the court's overruling of the motion; and there the ground of the motion is finally stated thus:
"And the indictment, taken with the bill of particulars, does not allege any crime known to the law."
That allegation was regarded by Mr. Justice ROGERS as having reference only to the point which he discussed; which was, that the defendant was not accused of having the tincture of ginger in his possession for sale for his own account, but was accused of having it for sale in the drug store of which he was alleged to be the manager for the Hub Drug Company, Inc.
The difference of opinion which we have had on that score, however, has lost its importance now that we all agree that our decision must turn upon the question whether the affidavit in this case was sufficient, without the allegation that the medicated liquid which the defendant was accused of having in his possession, as manager for the Hub Drug Company, Inc., was fit for use as a beverage or for intoxicating beverage purposes.
The accusation, as specified in the bill of particulars, was that the defendant had had in his possession, for sale for beverage purposes, in the drug store which he managed for the Hub Drug Company, Inc., intoxicating liquor, consisting of three small bottles of tincture of ginger, containing more than one-half of 1 per cent. of alcohol. Tincture of ginger, as we know, is a medicated liquid that belongs in the drug stores; and it is not a crime to sell it unless it is — quoting the statute — "fit for use as a beverage or for intoxicating beverage purposes."
According to section 8 of the Act 39 of 1921, there are three distinct classes of intoxicating liquors which the statute declares shall not be manufactured, or sold, or possessed for sale, as a beverage, viz.: (1) Alcohol, whisky, brandy, rum, gin, beer, ale, porter, and wine; and (2) any spirituous, vinous, malt or fermented liquor or liquids, by whatever name called, as defined by federal legislation; and (3) 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.
I understand that the expression in the statute, "as defined by federal legislation," means "containing one-half of 1 per cent. or more of alcohol by volume"; because, the Volstead Act § 1 (U.S. Comp. St. Ann. Supp. 1923, § 10138 1/2) gives substantially the same definition of that class of intoxicating liquors, viz., "any spirituous, vinous, malt, or fermented liquor, liquids, and compounds, whether medicated, proprietary, patented, or not, and by whatever name called, containing one-half of 1 per centum or more of alcohol by volume, which are fit for use for beverage purposes."
By the Act 57 of 1924, section 8 of the Act 39 of 1921 was amended by substituting for the expression, "as defined by federal legislation," the language of the Volstead Act itself, viz.:
"Alcohol, whisky, brandy, rum, gin, beer, ale, porter, wine, and any spirituous, vinous, malt, or fermented liquor, liquids and compounds by whatever name called, and all alcoholic liquids either medicated, proprietary or patented, containing one-half of 1 per centum or more of alcohol by volume, which are fit for use as a beverage or for intoxicating beverage purposes."
I have underscored the last clause in the language quoted merely to emphasize how the Legislature has sedulously adhered to the language of the Volstead Act, in defining or qualifying those patented, proprietary or medicated liquids which are outlawed, for containing one-half of 1 per cent. or more of alcohol by volume, and for being "fit for use as a beverage or for intoxicating beverage purposes."
The Act 57 of 1924 was enacted while this prosecution was pending in this court. The amendment of the law, therefore, does not apply to this case. I cite the amendment merely to show how carefully the Legislature, like the Congress in enacting the Volstead Law, has avoided making it a crime for a druggist to sell, or have for sale, a patented or proprietary or medicated liquid containing one-half of 1 per cent or more of alcohol, unless that liquid is "fit for use as a beverage or for intoxicating beverage purposes."
In the opinion submitted by Mr. Justice ST. PAUL for our consideration, on rehearing, it is conceded that the defendant in this case could not have been convicted legally without proof that the tincture of ginger which he was accused of having had in his possession was "fit for use as a beverage or for intoxicating beverage purposes."
I respectfully submit that, inasmuch as the defendant could not have been convicted legally without the proof that the tincture of ginger was fit for use as a beverage or for intoxicating beverage purposes, he was not indicted legally, without the allegation that the tincture of ginger was fit for use as a beverage or for intoxicating beverage purposes. That is the qualifying language of the statute, and the best evidence that the language was used advisedly lies in the fact that the same language was used in all three acts; that is, in the Volstead Act, in the Hood Law, or Act of 1921, and in the amending act of 1924.
It is said in the opinion submitted by Mr. Justice ST. PAUL:
"Since tincture of ginger is neither alcohol, whisky, brandy, rum, gin, beer, ale, porter, nor wine, but is a medicated alcoholic liquid, it follows that the state thereby charged that it came within that other, and above mentioned, definition in the statute."
I agree that it is manifest that the state intended to charge that the tincture of ginger was of that class of intoxicating liquors which are outlawed because they are fit for use as a beverage or for intoxicating beverage purposes. But the fact remains that the state did not charge that the tincture of ginger was fit for use as a beverage or for intoxicating beverage purposes.
The principle of law on which this decision should turn is that, in an indictment for a statutory offense, every condition which the statute prescribes in making the act an offense must be alleged. Whatever the statute requires to be proven for a valid conviction must be alleged in the indictment. See the numerous cases cited in Marr's Criminal Jurisprudence (2d Ed.), pp. 484, 485.
It was for that reason, and on that principle, that we decided that an indictment for manufacturing or possessing or selling intoxicating liquors — even such as are used generally if not only for beverage purposes — was not a valid indictment if it did not contain the allegation that the manufacture, or possession, or sale, was "for beverage purposes." The reason for the ruling was that that was the qualifying language of the statute.
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