Coury v. State

*9 BESSEY, J. On the 1st day of May, 1919, William Coury was convicted of the crime of knowingly keeping. in his possession 20 gallons of a certain intoxicating compound and liquor, which the proof shows was apple cider, with the intention of wrongfully selling, bartering and giving away the same. His punishment was assessed at a fine of $250, and confinement in the county jail for a period of 45 days. From the verdict and judgment he appeals. For convenience in this opinion, the appellant, William Coury, will be designated as the defendant. The conviction and judgment of sentence imposed upon the defendant was based on a charge filed on March 15, 1919, by information signed by the county attorney of Woods county, the substance of the charging part being as follows: “That on the 12th day of March, 1919, the above-named defendant, William Coury, did willfully, wrongfully, unlawfully, feloniously, and intentionally have and knowingly keep in his possession, for and with the intention' of wrongfully selling, bartering and giving away the same, about 20 gallons of a certain compound and liquor, the exact nature of which is to your informant unknown, and cannot therefore be herein stated; which said gallons of said compound. and liquor was then and there intoxicating, and contained more than 4 per cent., measured by volume, of alcohol, and was capable of being used and was used as an intoxicating beverage, the sale of which alcoholic compound and liquor above stated being prohibited by the laws of the state of Oklahoma.” The testimony discloses that the defendant was a naturalized Syrian, unable to read or write the English language; that he had been for some years engaged in a general mercantile business in the town of Waynoka, having one of the leading stores in that town; that besides this mercantile business he was the owner of valuable town property in Way-noka, and of a valuable farm in the country' nearby; that for a period of about 2% years prior to this time he had *10 been dispensing soft drinks from a soda fountain in his store, and among other beverages sold apple eider, purchased from the Clarksville Cider Company, of St. Louis, Mo., under a written guaranty from them that the eider was • nonintoxicating, and not subject to an internal revenue tax. The defendant claimed that the eider was in fact nonintoxicating- and offered in evidence the guaranty from the cider company. As evidence of good faith the defendant further claimed that, upon the question of whether or not it would be permissible for him to sell this cider, he had made inquiry of certain representatives of the sheriff’s office and had been advised that it would be all right for him to do so. This, however, was denied by the representatives of the sheriff’s, office. A number of witnesses testified that at various times, they had purchased and drunk of this cider, and that it was. hot intoxicating; others testified that if drunk in sufficient quantities it would intoxicate. On the night of March 12, 1919, the sheriff and two of his deputies, Johnson and Montgomery, went to Waynoka to meet another deputy, Wolcott; they then-went to the home-of the defendant at about midnight, woke him up, and- told him they wanted him to go and get them some of the cider he was selling. The defendant dressed, and went with them to his store and gave them a jug full of the eider from an open barrel from which he had been selling. These deputies, or some one of them, placed this jug of cider in an automobile-in which they were traveling, and took it to Alva with them. At- a later date, Deputy Montgomery testified, he took this, sample of cider to an expert chemist, Mr. Pereival, of the State Normal School at Alva, for analysis. The sample was not sealed, or in any way marked for identification until after-the analysis was made, which analysis showed that the eider contained more than 4 per cent, of alcohol, measured by-volume. *11 It was the contention, of the defendant that, if this analysis- was1 correctly made, and the cider was in fact intoxicating liqnor, the defendant had no knowledge of the fact, and that the sales made by him were innocently made, without negligence or culpable criminal intent; and that the defendant . did not feloniously, intentionally, and knowingly have and keep in his possession, with the intent of wrongfully selling, bartering, and giving away, the eider in question, as charged.in the information. Upon that question the court submitted the following instructions: “It is the theory of the defense that the liquor taken from the defendant, William Coury, and for the possession of which he is charged, was pure and unadulterated apple eider, and for that reason it was not a violation of the law to have possession of same with the intent to sell the same. Upon this branch of the case you are instructed that it is not a violation of the law for the defendant to have in his possession, for the purpose of selling it, pure and unadulterated apple cider that is nonintoxicating; that if the cider in question was fermented, and had reached such state of fermentation that it contained a sufficient percentage of alcohol to render the same intoxicating, then the defendant would not have the right to have the same in his possession with intent to sell, give away, or otherwise furnish to others; and as to whether or not the cider in question was an intoxicating liquor is question of fact for the jury; and unless jury are satisfied beyond a reasonable doubt, after a careful consideration of all the evidence in the case, that the cider in question was an intoxicating liquor within the meaning of the law, and capable of being used as an alcoholic beverage, you must acquit the defendant.” “You are instructed that intoxicating liquor, within the meaning of the law, is such liquor as is intended for use as a beverage and is capable of being so used, which contains alcohol either obtained by fermentation or by the additional *12 process of distillation in such proportion that it would produce intoxication when taken in such quantities as may practically be drunk; and you are further instructed that by reason of the statute the Legislature has fixed the amount of alcohol necessary for such liquor to contain to render it intoxicating at one-half of 1 per cent., measured by volume; and in this case, if you find that the liquor in question contained more than one-half of 1 per cent, of alcohol measured by volume, then you would be justified in finding that such liquor was-an intoxicating liquor, within the meaning of the law.” The defendant requested, among others, the following instructions: “You are further instructed that the defendant had the lawful right to keep for sale, within this state, and sell, apple eider, if the same was manufactured either in this state or elsewhere from the unadulterated juice of apples, even though the same contained more than one-half of 1 per cent, of alcohol, measured by volume, unless the state proves by ihe evidence beyond a reasonable doubt that the alcohol, if any, was placed therein by or for the defendant.” “The jury is instructed that the information in this case charges the defendant with knowingly keeping for sale a certain compound, capable of being used as a beverage, and containing about 4 per cent, of alcohol, measured by. volume, and the jury are instructed that, if they believe from the evidence that the defendant in good faith kept for sale and sold only apple eider of the character permitted by the laws of this state, that then he did not knowingly and unlawfully sell the same; and'your verdict should be not guilty.” The charging part of the information, in part, is in the language of section 3605, R, L. 1910, which section is. as follows : “Misdemeanor to Manufacture, Sell or Furnish Liquor. It shall be unlawful for any person, individual, or Corporate, to manufacture, sell, barter, give away or otherwise furnish except as in this chapter provided, any. spirituous, vinous, fermented or malt liquors, or any imitation thereof or substi *13 tute therefor; or to manufacture,.sell, barter or give away or otherwise furnish any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per cent, of alcohol, measured by volume, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States; or to ship or in any way convey such liquor from one place within this state to another place therein except the conveyance of a lawful purchase as herein authorized; or to solicit the purchase or sale of any such liquors, either in person or by sign, circular, lettér, card price list, advertisement or otherwise, or to distribute, publish, or display any advertisement, sign or notice where any such liquor may be manufactured, bartered, sold, given away, or otherwise furnished, or to have the possession of any such liquors with the intention of violating any of the provisions of this chapter. A violation of any provisions of this section shall be a misdemeanor, and shall be punished by a fine of not' less than fifty dollars nor more than five hundred dollars, and by imprisonment for not less than thirty days nor more than six months: Provided, however, that the provisions of this chapter shall not apply to the manufacture and sale of unfermented eider and wine made from apples, grapes, berries or other fruit grown in this state, and to the use of wine for sacramental purposes in religious bodies.” Rev. Laws 1910, § 3605. “Sale of Apple Cider Lawful. It shall be lawful tó sell in this state apple cider manufactured either within or without the state from the unadulterated juice of apples, if the same is of such character as not to be subject to a special tax under the internal revenue laws of the United States, and shall comply with the requirements of the pure food laws of the United States and of this state.” Rev. Laws 1910, § 3606. In this state the manufacture and sale of all intoxicating beverages, of every kind and character, is prohibited by the Constitution. To guard against artifice and fraud, the Legislature, in the exercise of its police power, has made the *14 traffic illegal in certain other beverages not necessarily intoxicating, such as ale, wine, beer, near beer and substitutes therefor. Section 3605, quoted above, is a negative statute, a "thou shalt not” statute, a prohibitory statute relating to the police powers of the state, affecting the prohibition provisions of our Constitution. Section 3606 following, which should be read and considered along with section 3605, unlike the latter, is an affirmative statute, a declaratory statute, explaining that apple cider may or can be kept for sale within the meaning of the Constitution, if such eider be nonintoxicating, •even though the alcoholic content might be more than one-half of 1 per cent. Section 3606, excepting apple cider from police regulations imposed against ale, wine, beer, near beer, and substitutes therefor, is a permissive statute, and is not, in a true sense, a police regulation, but an exemption or an exception, taking it out of such regulations. Construing the two sections last quoted, together with ■other parts of our prohibitory laws, we conclude that it was the intention of the Legislature to prohibit the sale and disposal of wines, ale, beer, and substitutes known as near beer, containing more than one-half of 1 per cent, of alcohol, measured by volume, but it was the intention of the Legislature to except cider from such provision, making it a question of fact, for the jury to determine whether or not any particular cider, sold or kept for sale, contained sufficient alcohol to make it intoxicating when used as a beverage. To hold otherwise would be to hold for naught and make nugatory section 3606, quoted above. Unlike the statutes of most other states, our statutes, in section 2094, B. L. 1910, provide that all persons are capable •of committing crimes except those belonging to certain classes, and in subdivision 5 of said section except "persons who committed the act, or made the omission charged, under an *15 ignorance or mistake of fact which disproves any criminal intent. But ignorance of the law does not excuse, from punishment for its violation.” As a general rule, a reasonable and bona fide belief in the existence of facts which, if they did exist, would render an act innocent is a good defense, but there are apparent and real exceptions to this rule. Clark on the Law of Crimes (2d Ed.) p. 100; 16 Corpus Juris, 84-86; 8 R. C. L. 60. In Texas, prior to the adoption of the Penal Code of 1895, in cases involving a violation of the local option laws of that state, it was held in a number of cases that they who sell liquor must know at their peril whether it is intoxicating, and if it is intoxicating, no matter if the accused is ignorant of the fact, he is deemed guilty of a violation of the law. Later, article 46 of the Penal Code of 1895 provided: “No mistake of law excuses one committing an offense; but if a person laboring under a mistake, as to a particular fact shall do an act which would otherwise be criminal, he is guilty of no offense.” In Patrick v. State, 45 Tex. Cr. R. 587, 78 S. W. 947, the court held that, if a person laboring under a mistake as to a particular fact shall do an act which would otherwise be criminal, he is guilty of no offense, and that this provision of the statutes was applicable to a violation of the local option laws. This case expressly overruled whatever might have been held by courts to the contrary prior to that time Upon that point. In another case, where the accused was charged with unlawfully selling a bottle of intoxicating liquor known as “Frosty,” he testified that he had been informed that it was perfectly harmless, and that he would not have sold it if he had believed it intoxicating, and asked for a charge submitting the mistake of fact to the jury; held, that such an instruction should have been given. Mayne v. State, 48 Tex. *16 Cr. R. 93, 86 S. W. 329; Uloth v. State (Tex. Cr. App.) 87 S. W. 822; McRoberts v. State, 49 Tex. Cr. R. 288, 92 S. W. 804; Walker v. State, 50 Tex. Cr. R. 495, 98 S. W. 843. We have been unable to find any other appellate court decisions construing statutes like our own, touching on the good faith, ignorance, or mistake of fact of the accused charged with illegal possession or disposal of intoxicating beverages. By the great weight of authority in states having no statute similar to ours on criminal intent, it has been held that criminal intent or guilty knowledge is not an essential element of the violation of a criminal statute enacted in the exercise of the police powers of the state. 8 R. C. L. 62, § 12; Troutner v. State, L. R. A. 1916D, 266, notes and cases cited. Touching the sale of apple cider in which the alcoholic content is a matter of dispute, we would be inclined to follow the majority rule on the question of guilty knowledge or intent if our statutes were silent on that point, but we do not feel justified in reading out of the statutes, by judicial construction, provisions so plain and unequivocal as set out in section 2094, subd. 5, R. L. 1910, and section 3606, before quoted. To us it seems that the Legislature intended to take the question of intent out of the statute so far as ale, wine, beer, and beverages known as near beer are concerned, because the statute has arbitrarily fixed the amount of alcoholic content permissible in such beverages as one-half of 1 per cent., measured by volume, in positive prohibitive terms, and that the Legislature intended that any person selling these beverages containing more than one-half of 1 per cent., of alcohol did so at his peril, irrespective of his knowledge or intent to violate the law.v But by the terms of section 3606, apple eider is not classified with ale, beer, wine, and near beer, or substitutes therefor. The Legislature, by arbitrarily prohibit *17 ing the sale-or the knowingly keeping for sale of beverages not necessarily intoxicating, doubtless intended to cut out or make difficult the sale of such beverages of doubtful or unknown alcoholic content, and so arbitrarily fixed the content permissible, to prevent fraud and imposition by the sale of substitutes for known alcohol beverages. All such beverages are bylaw made contraband — outlawed; but for some reason the Legislature excepted from this list nonintoxicating apple eider, and affirmatively Authorized its sale, and in that sense eliminated it from police regulations. In some instances the doing of a prohibited act constitutes a crime, irrespective of the moral turpitude or purity of the motive, as.the case may be, or of ignorance or mistake of fact. When the prohibition in a statute against doing a certain act or series of acts is couched in general terms, courts have often injected into the statute a proviso that the denoted act shall be done from a guilty mind. These two classes of eases, diverging as they do, and seemingly standing apart from each other, may at first view appear to be irreconcilable in point of principle; nevertheless, such is not the ease. They all rest upon one common ground, and that ground is the legal rules of statutory construction. Each set of eases is or should have been the result of the judicial ascertainment of the mind of the Legislature in the given instance. And it will be found that in the considered adjudications this inquiry has been the judicial guide. • Naturally, in such an inquiry the decisions have fallen into two classes, because there have been two cardinal considerations of directly opposite tendency influencing the minds of judges; the one being the injustice of punishing unconscious violations of law, and the other the necessity, in view of public utility, of punishing at times some of that very class of offenses. This difference in construction may be seen in the way the courts construe the word, “knowingly” when used in statutes which penalize a person who *18 knowingly does something. The word is sometimes construed to be used in the sense of “intentionally”, in which cases it must be made to appear that the party charged was aware of. the illegality of his conduct. A more general construction is that thé word so employed, imports a knowledge of the essential facts from which the law presumes a knowledge of the legal consequences arising there'from. 8 R. C. L. 62,63. In this case it is charged that the defendant feloniously and intentionally had and knowingly kept this cider, with the intent of wrongfully selling the same, which, to us, considered in connection with our statute on criminal intent, indicates that a culpable, guilty knowledge is an essential ingredient of the crime charged. Why apple cider has been placed in a different class from ale, wine, beer and substitutes therefor we do not know, but the classification is properly for the Legislature, and not for the courts. In the case of Lightle v. State, 5 Okla. Cr. 263, 114 Pac. 277, involving guilty intent and purpose in the sale of malt beverage known as “Amber Mead”, without commenting on our statute on guilty intent, the learned Judge Furman said: “The contention of counsel for appellant was that the intent with which an act is done is always material, and that no act can constitute a crime unless it is performed with a criminal intent. The illustration was offered in argument that if A. takes possession of a horse honestly believing it to be his own property, and it afterwards turns out that he' was mistaken, and that the horse really belonged to B.,. that A.’s good faith in taking the horse on a mistaken claim of ownership would be a complete defense to a charge of larceny. This would be true. Why? Because the evil intention with which property is taken is a necessary constituent element of rthe crime of larceny; but this illustration would have no application to a case coming under what is known as police regulations, which makes it criminal to do a certain act, irrespective of the intention with which such act is done.” *19 In the Lightle Case the beverage was a near beer, and the statute fixes the maximum alcoholic content allowed, and applying the' rule of statutory construction above stated, the innocent intent of a person vending such substitute would be immaterial, and not a proper issue in the case. But, as we have seen, this condition would not apply to apple cider, for the reason that the Legislature has placed apple cider in a class by itself, leaving the question of its alcoholic content and intoxicating properties a question of fact in each particular case, to be determined by the jury. To make the keeping of apple cider for sale illegal it must in fact be intoxicating, and if the defendant in this case honestly believed, either from the guaranty of the vendors or for other good and sufficient reasons, that this particular eider was nonintoxicating, under the provisions of subdivision 5, § 2094, R. L. 1910, the defendant was entitled to have the question of guilty knowledge submitted to the jury under proper instructions. For the failure to submit this issue to the jury the cause is reversed and remanded. DOYLE, P. J., concurs.