Bastle v. State

Eschweiler, J. The information in this case was under the provisions of sub. (30), sec. 1543, Stats, (ch. 76hh), in substance providing- that no person having a license for the sale of non-intoxicating liquors to be sold for consumption on designated premises shall have in his possession or on or about said premises any intoxicating liquors. By sub. (41), sec. 1543, Stats., defendant’s license under which she was operating prior thereto stood revoked, without other proceedings, by her conviction on September 8th of a violation of the provisions of ch. 76hh, so that she was not, on September 10th, licensed to sell non-intoxicating liquors as she was charged with being in the information. The general prohibiting terms of this ch. 76hh are found in sub. (3), sec. 1543, reading: “After this act becomes operative, the manufacture, sale or transportation of intoxicating liquors, as herein defined, within, the importation thereof into, or 'the exportation thereof from the state of Wisconsin, except as may be herein or hereafter provided, is hereby prohibited.” By sub. (32) (d), sec. 1543, it is declared that there shall be no property rights in any liquor unlawfully possessed, or [166] in any device for the unlawful manufacture of liquor, and further providing that the possession of any still or other contrivance used or capable of being used for the distillation of alcoholic liquors without a permit, or the possession of any mash from which distilled liquor is customarily made, or the possession of any privately manufactured distilled liquors without such permit, is hereby prohibited, and the possession of any such still, mas-h, or liquor shall be prima facie evidence of unlazvful manufacture of liquor. Upon this last section the State argues that there being no property rights in liquor, unlawfully possessed and possession of any privately manufactured liquors without a permit being prohibited, that thereby is to be found a legislative declaration and intent to make such possession by one never or no longer licensed as a dealer in non-intoxicating liquors unlawful, and as much subject to the same penalties as the expressly so declared unlawful possession by a person licensed to deal in non-intoxicating liquors. The statute, sub. (30), sec. 1543, under which she was prosecuted precisely fixes and defines an offense and plainly requires that two separate elements or conditions must coexist before it can be said that such offense has been committed and the penalty incurred. One is the possession of unlawful liquor, the other is that the defendant be, at the time of such possession, licensed to sell non-intoxicating liquors. Such being the statutory requirements, the court is powerless to declare that the offense or an offense exists where one such necessary element or condition is wanting, as was the case here. Neither sub. (32) (d), sec. 1543, supra, declaring that unlawful possession of liquor shall be prima facie evidence of imlawful manufacture of liquor, nor sub. (28), providing that possession of liquor by any person, elsewhere than in his dwelling, without a permit, shall be prima facie evidence of unlawful possession, strengthens or. supports the construction for which the State here contends. [167] There being shown no violation of the statute under which defendant was prosecuted and sentenced, the conviction must be set aside and the proceedings dismissed. By the Court. — Judgment reversed, with directions to dismiss.