State v. Gremillion , 160 La. 121 ( 1925 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Appellant was convicted of the offense of having intoxicating liquor in his possession for beverage purposes in violation of Act 39 of 1921. He moved for a new trial, attaching to his motion a statement of facts, admitted by the district attorney to be the facts on which the conviction was founded. The facts so admitted are as follows:

"The defendant, Herman Gremillion, while attending a public dance in the village of Echo, in the parish of Rapides, La., on the date alleged in the indictment (the 25th of April, 1925), took from his pocket a pint bottle containing whisky, which he had obtained on a prescription issued by a licensed physician, which prescription had been filled by a druggist. The accused had obtained the whisky legally, for medicinal purposes, on March 23, 1925. When he took the bottle out of his pocket, the doctor's prescription above referred to was on the bottle, and he took a drink out of the bottle and put it back into his pocket. During the evening he engaged in dancing, and was in the dance hall when he took the drink."

The purpose of the learned counsel for appellant in obtaining an admission of the facts on which the conviction was founded was to eliminate all questions of fact on which might depend the defendant's guilt or innocence, and to show on appeal that the conviction, which he alleges was an error on the part of the judge, was an error of law, not of fact. The argument on behalf of the appellant is that he could not have in his possession unlawfully whisky that he had acquired lawfully — that he could not have in his possession for beverage purposes whisky which he had obtained for medicinal purposes, even though he had obtained it a month before. In a sense, though not in the usual sense, the defendant pleaded prescription.

The only question that was left for the judge to decide, from the facts that were admitted, was whether the defendant had the whisky in his possession for beverage purposes or for medicinal purposes. That was not a question of law, but a question of fact, and it was the only question on which depended the ultimate question of guilt or innocence. Stated somewhat differently, the question that is propounded to us for decision is whether the facts which were admitted were sufficient to justify the conclusion beyond a reasonable doubt that the defendant had the whisky in his possession for beverage purposes and not for medicinal purposes.

When a criminal case is tried by the judge, without a jury, as this case was tried, the judge's conclusions on questions of fact relating to the question of guilt or innocence are final. This court has not jurisdiction of questions of fact that may determine the guilt or innocence of the defendant in a criminal case. Const. art. 7, § 10, and article 19, § 9.

The only question of law that is propounded in this case is whether it is possible for a person to have in his possessionfor beverage purposes, and therefore in violation of the law, intoxicating liquor that he has acquired lawfully, for medicinalpurposes. Our answer is that it is possible for a person to violate the law by having in his possession for beverage purposes intoxicating liquor that he acquired lawfully; e.g., for medicinal purposes. That is what the Court of Appeals of Kentucky thought of the matter under a somewhat similar statute. See Gibson v. Commonwealth, 199 Ky. 167, 250 S.W. 828. It is the possessing of intoxicating liquor, and not the acquiring of it for beverage purposes, that Act 39 of 1921, in terms, and among other things, forbids. We must not confound the act of possessing the liquor, which might be for beverage purposes and therefore unlawful, with the act of acquiring the liquor, which might have been for medicinal purposes and therefore lawful.

Act 39 of 1921 does not, specifically, exempt from its effect the possessing of intoxicating liquor as a medicine prescribed by a physician. The reason why it is not a violation of the law to possess intoxicating liquor for medicinal purposes is that the statute does not forbid the possessing of intoxicating liquor unless it is for beverage purposes. An indictment for having intoxicating liquor in one's possession is not valid if it does not charge that the liquor was possessed for beverage purposes. State v. Wilkerson, 156 La. 881, 101 So. 252.

In this connection, it is significant that the fourth section of Act 39 of 1921, which says that the act shall not be construed as forbidding the possession of intoxicating liquor in one's private dwelling or abode, provided the liquor was acquired legally and is used only for home consumption and for the entertainment of bona fide guests therein, is confined to the possessing of the liquor "in one's private dwelling or abode." We do not mean by this that intoxicating liquor that has been legally acquired, as, for example, on a doctor's prescription, cannot be possessed lawfully elsewhere than in a private dwelling or abode. What we mean to say is that this exemption of intoxicating liquor that has been legally acquired, and that is being used only for home consumption and for the entertainment of bona fide guests, applies only so long as the liquor is "in one's private dwelling or abode"; which means that it is legally possible for such intoxicating liquor, having been legally acquired, to lose its exemption if it leaves the private dwelling or abode.

It is argued that appellant was convicted without any proof or evidence at all that his possessing the whisky was for beverage purposes. If that were true, the conviction would be illegal, and we would have jurisdiction to grant a new trial. It is well settled that, when a conviction is had without any proof or evidence at all of a fact which forms an essential element of the crime charged, the conviction is an error of law, which may be corrected on appeal. State v. Wilson, 141 La. 404, 75 So. 95, Ann. Cas. 1918D, 789; State v. Wells, 147 La. 822, 86 So. 268; Fernandez v. Perez, 151 La. 526, 92 So. 45; State v. Bush,156 La. 973, 101 So. 382; State v. Gani, 157 La. 231, 102 So. 318; State v. Giangosso, 157 La. 360, 102 So. 429; State v. Dunnington, 157 La. 369, 102 So. 478.

It cannot be said that there was no evidence at all in this case that the defendant possessed the whisky for beverage purposes and not for medicinal purposes. The judge says in his per curiam, attached to the bill of exceptions taken to the overruling of the motion for a new trial, that he was convinced beyond a reasonable doubt that the defendant was using the whisky as a beverage and not for medicinal purposes, and that he, the judge, in coming to that conclusion, took into consideration the admitted circumstance that the defendant was taking part in the dance, and was therefore apparently well, and that he drank the liquor from the bottle, and in the dance hall, in full view of the assembly. It is not polite, to say the least of it, for a gentleman in a public dance hall to take a flask out of his pocket, and, in full view of the ladies and gentlemen assembled there, to drink a dose of medicine out of the flask. Perhaps if the defendant in this case had retired from the dance hall, and had measured out a dose of the whisky with a spoon or medicine glass, after having looked at his watch to make sure that it was time to follow the doctor's prescription, the judge would not have been convinced beyond a reasonable doubt that the possessing of the whisky was for beverage purposes. Whether the defendant's indiscreet way of taking the drink or dose in this case was enough to eliminate all reasonable doubt that he had the whisky in his possession for beverage purposes and not for medicinal purposes is a question over which we have not jurisdiction.

The verdict and sentence are affirmed.

ST. PAUL, ROGERS, and BRUNOT, JJ., dissent, and BRUNOT, J., will hand down reasons.