Feibelman v. State

McCLELLAN, C. J. The appellant was indicted for selling vinous, spirituous, or malt liquor in violation of a local prohibition statute. The trial was had before the judge of the Jefferson criminal court without a jury, and the defendant was found and adjudged guilty. The evidence tended to show that the defendant sold a liquor called “hop jack” within the prohibitory district, and that this hop jack was a malt liquor. The conclusion of the judge on the evidence was excepted, to and is here assigned as error. We know of no statute authorizing this court to review conclusions of fact reached by the judge of the Jefferson criminal court in trials without jury; hut if there be such statute we would have no hesitation in concurring in the finding in this case. Other exceptions were reserved to the rulings of the tidal court on the admissibility of evidence, and these we will consider. They raise but one question. That is whether the legislature has the power to prohibit the sale of malt liquors which are not intoxicating. We shall not follow counsel to a general discussion of the police power* and its limitations in this connection. We may for all the purposes of this case concede, without indicating any opinion upon the question, that the legislature may not in the exercise of the police power prohibit the sale of a malt liquor which is not intoxicating nor otherwise deleterious in any way where the sole purpose and object is the prevention of the sale of that particular character ‘or quality of malt liquor. But it is common knowledge, that most malt liquors are intoxicating and harmful when used excessively, and are capable of excessive use as a beverage. The sale of all such of course the legislature has the power to prohibit. But if the prohibition should in terms go only to the sale of intoxicating malt liquors, there would be left open such opportunities for invasions of the Jaw and there would arise siuch difficulties of proof as that the law could not be effectively executed; and the lawmakers having the undoubted power to prohibit and to prevent the sale of intoxicating malt liquors, and to enact to that end a law which can be executed so as to se125 cuto it, and finding ’that this cannot he accomplished •without extending the prohibition to all malt liquors, whether intoxicating or not, such extension, necessary to prevent the sale of intoxicants, is as essentially the proper exercise of the police power as the inhibition with reference to intoxicants. Our prohibition statutes very generally have provisions which are merely intended to he ancillary to and to prevent evasions of, or 1o avoid difficulties of proof in respect of, their main purpose, to prevent the sale of intoxicants. For instance, it is quite usual for them to interdict the giving aioay of intoxicating liquors. Now it is not in the minds of the legislators that enough such liquor is going to be given away to constitute the evils intended to be eradicated; but it may well he that the prohibition of the sale could and would be; evaded under the forms and color of gifts te> such extent as to defeat in great measure the purpose of the statute. So too some of the statutes prohibit the sale, etc., of fruit preserved in alcoholic liquor, but this is not upon any idea that bona ficle sale's e>r gifts of sue-h fruits would emasculate the ■statute or won!el be an evil, but it is upon the other consideration that sue-h sales, etc., would not be in good faith of the fruit, but that the fruit would be employed as a. cover for transactions really involving sales of intoxicating liquors; and there is no doubt but that bona fide salt's of fruit so preserved, not ¡sales of the liquor preservative, may he prohibited because to allow 'such sales would open the door to mischievous evasions of the statute aimed at sales of intoxicating liquors. We might perhaps rest our concurrence* with the ruling of the criminal court on the admissibility of evidence, upon broader grounds; but we are content to put it upon the consideration adverted to. The judgment is affirmed.