State v. . Barksdale , 181 N.C. 621 ( 1921 )

ALLEN, J., concurring; CLARK, C. J., dissenting. The indictment was for "soliciting orders or proposing to take orders, or proposals for the sale of certain spirituous and intoxicating liquors or bitters, or other concoctions containing alcohol." C. S., 3369.

There was evidence on the part of the State tending to show that some time prior to the bill of indictment, defendant, as salesman for Garrett Company of New York, was offering for sale in and around Hamlet, N.C. certain mixtures or concoctions claimed to be flavoring extracts or essences in bottles of different sizes, from one-third of a pint to a pint, labeled "Garrett Company, imitation extract, vanilla, grape, banana," etc., twenty-one varieties in all, and that these liquids contained 40 to 45 per cent alcohol, and had in many instances been known to make persons drunk who used them.

Defendant, admitting that the mixture offered by him for sale contained 40 per cent alcohol, or near that, and was about as strong as the average whiskey, offered evidence tending to show that they were in fact and truth flavoring extracts, and were offered by him with the view and purpose of being used and sold as such in the retail trade. That the term on the label, "imitation," did not mean that the article he was proposing to sell was not in fact flavoring extract, but that it was so marked for the purpose of indicating the particular flavor the mixture contained; that is, a flavor imitating brandy peaches, etc. Defendant also offered to show by the chemist having charge of its manufacture that the mixtures offered by him were made after a formula for flavoring extracts submitted to and approved by the Federal Prohibition Commissioner having charge of such matters in North Carolina, and under a permit allowing Garrett Company to use alcohol in the manufacture of flavoring extracts and that the extracts were made in exact accord with the specifications in said permit, and also in accord with the standard for flavoring extracts established and approved by the United States Department of Agriculture, except that Garrett's extracts lack 10 per cent of containing as much alcohol as the amount adopted for that standard, which evidence, on objection, was excluded by the court and defendant excepted. Defendant's evidence further tended to show that the extracts so manufactured by Garrett Company and concerning which defendant was indicted were not made for beverage purposes and not fitted for same. That owing to the amount of flavoring essence, the best that could be procured and 150 per cent strong, they had a tendency to nauseate, and could no more be drunk as a beverage than shellac or shoe polish. And that they were made and offered for sale in good faith as being what they proposed to be, "flavoring extracts," and were so offered only for that purpose. It was further proved for defendant that at least 40 per cent alcohol was necessary to the proper making of these flavoring extracts, according to established formulas or any recognized method of manufacture. The entire statement of the expert witness, Dr. B. H. Smith, on the subject being as follows: "15 per cent or 16 per cent will preserve any vegetable product, but it is necessary to use more to get them into solution. Our vanilla extract that is in evidence, that cannot be made properly and preserved with less than 40 per cent. It might be with 2 or 3 per cent less, but approximately 40 per cent, because it is necessary to hold the vanilla in solution — to go to make up the flavor it requires that per cent to hold them in solution."

At the close of the testimony the court, in effect, charged the jury that if the evidence was believed, and the jury found the facts to be as testified to by the witnesses, they should convict the defendant.

Verdict, guilty. Defendant excepted and appealed, assigning for error:

1. The refusal of his Honor to receive the testimony as to the permit and formula of the United States Prohibition Commissioner, and the standard for flavoring extracts adopted by the United States Department of Agriculture.

2. The charge of his Honor that if the testimony was believed there should be a conviction in any aspect of the evidence. After stating the case: The Legislature, at the special session of 1908, passed the general prohibition law against the manufacture and sale of intoxicating liquors, ratified by the voters of the State by a pronounced majority the following May, the principal features of which as pertinent to this inquiry now appear in chapter 66, Consolidated Statutes, designated as article 1. In section 3367 of said article the manufacture and sale of any spirituous, vinous, fermented, or malt liquors is prohibited, except wines, cider, etc., as therein specified. Section 3368, article 1, defines intoxicating liquors as follows: "All liquors or mixtures thereof by whatever name called that will produce intoxication within the meaning of this article, provided that certain specified medical preparations shall not be held or construed to be or come within the meaning of the definition." Section 3369, in transactions coming under the provisions of the article, makes the place of delivery the place of sale, and section 3370 makes it unlawful for any person, for himself or as agent or traveling salesman of any person, firm, or corporation, to solicit orders or proposals of purchase of intoxicating liquors by the jug, bottle, or otherwise, in this State. There being numerous prosecutions under this statute debated on the issue as to whether a given article was intoxicating, the General Assembly in 1911 enacted a further statute, the principal parts of which appear in chapter 66, Consolidated Statutes, as article 2, and in section 3373 of this article it is made unlawful for any person, firm, or corporation to sell or dispose of for gain, "near-beer, beerine, or other spirituous, vinous, or malt liquors, or mixtures of any kind, and under whatsoever named called, that shall contain alcohol, cocaine, morphine, or other opium derivative except as hereinafter provided."

In a subsequent section under this article, 3375, it is provided that the same shall not extend to or include a long list of specified exceptions such as wines, ciders, etc., various medicinal preparations, and including "the sale of flavoring extracts or essences when sold as such." These two articles being parts of the same statute, and dealing with the same subject, are to be considered and interpreted as a whole and in such case it is the accepted principle of statutory construction that every part of the law shall be given effect if this can be done by any fair and reasonable intendment, and it is further and fully established that where a literal interpretation of the language of a statute will lead to absurd results, or contravene the manifest purpose of the Legislature, as otherwise expressed, the reason and purpose of the law shall control and the strict letter thereof shall be disregarded. S. v. Earnhardt,170 N.C. 725-727; Abernethy v. Comrs., 169 N.C. 631; Fortune v. Comrs.,140 N.C. 322; Keith v. Lockhart, 171 N.C. 451; Black on Interpretation of Laws (2 ed.), pp. 23-66.

While the exception withdrawing "flavoring extracts when sold as such" is in terms excepted from article 2 of the chapter, it having been proved, and without contradiction, that these preparations cannot be properly made without at least 40 per cent alcohol, and so recognized as intoxicating, a quantity making the mixture "about as strong as the average whiskey," in the language of the witness, it is clear that in excepting these extracts from article 2, it was necessarily the evident intent and purpose of the Legislature to withdraw them from the effect of the prohibition law when they were in fact "what they professed to be and were sold as such." It would not be readily supposed that the Legislature intended to withdraw these preparations of recognized value entirely from domestic use, and when they have expressly excepted flavoring extract from the effect and operation of a law forbidding the sale of "any spirituous liquors, or mixtures of any kind, by whatsoever name known, containing alcohol," it would render this entire exception meaningless, and make the statute a delusion and a snare to entrap the honest dealer, if one acting in good faith under this exception could be indicted, convicted, and imprisoned under the provisions of article 1 of the same chapter. And this position and rule of interpretation, fortified and upheld by a uniform current of decisions here and in other jurisdictions, is not affected because of the suggestion, valid or invalid, and however vehemently urged, that it may afford a means of evading the prohibition law. Such considerations are for the Legislature, whose province it is to enact statutes and to alter and amend them so as to make their purpose more effective. It is ours to construe the laws and not to make them.

This, in our opinion, being the correct construction of the statute, when the State has offered evidence sufficient to satisfy the jury beyond a reasonable doubt that defendant is selling, or offering for sale, a liquor or mixture thereof, containing 40 or 45 per cent alcohol, or which is making men drunk, the defendant should be convicted unless he satisfies the jury, not beyond a reasonable doubt, but satisfies them that what he sells, or is offering for sale, comes within the exception claimed by him, and it must be an extract approved by valid official sanction or recognized as such by the general trade. The burden is on him to so prove to the jury that the article he sells is in fact and in truth what it professed to be, a flavoring extract, and that he is offering it to be used or sold as such for flavoring purposes and not as a beverage. S. v. Connor, 142 N.C. 700;S. v. Goulden, 134 N.C. 743. And there being testimony, admitted on the part of defendant, tending to show that these preparations were flavoring extracts offered for sale as such in good faith, there was error in holding that on the entire evidence, if believed, and as a conclusion of law, defendant should be convicted, for on such testimony the issue should have been submitted to the jury under the principles as stated. In our opinion there was error, also, in excluding the formula offered, and the permit and approval of the prohibition commissioner thereon, and that the extracts were manufactured in accord with the formula, and likewise as to the standard for vanilla and other extracts, established by the Department of Agriculture. As to the permit, it has been held by our highest Court that the Eighteenth Amendment to the United States Constitution, and the valid provisions of the Volstead Act in furtherance of the same, are, in case of conflict, the controlling law on this subject. Both the one and the other, however, inhibit the manufacture, sale, and transportation of intoxicating liquors only for beverage purposes, and while no State can enact any statute or enforce any regulation in contravention of the declared purpose, there is nothing in either to inhibit a state from passing more stringent regulations in reference to the manufacture and sale of intoxicating liquors, and this permit, therefore, issued by the Federal prohibition officer, is not conclusive or necessarily a protection, S. v. Fore, 180 N.C. 744; RhodeIsland v. Palmer, 253 U.S. 350, but both of these items of evidence are competent as tending to show good faith on the part of the defendant, and that these preparations are in fact what they profess to be, flavoring extracts.

It is urged in support of his Honor's ruling, as we understand the position, that the exception relied upon by defendant is now invalid because in conflict with the Eighteenth Amendment and the Federal statute passed in enforcement of the same, the Volstead Act. As heretofore stated, under Rhode Island v. Palmer, supra, and other like decisions, any and all state legislation, in contravention of the Eighteenth Amendment and the valid provisions of the Volstead Act, passed to enforce same are abrogated, and for conduct in violation of the criminal provisions of the Volstead Act, a defendant can be indicted and convicted in the Federal courts notwithstanding that the provisions of the State law would not inculpate. But there is no part of the Volstead Act that provides for or permits an indictment in the State court, and we are well assured that though an exception may be in violation of the Federal law on the subject, a defendant may not be indicted and convicted in the State court for violation of a State statute which contains an exception exculpating him until our own Legislature has acted in the matter and passed a statute that condemns him. Our State police regulations must be established by our own Legislature. We have so held at the present term in S. v. Helms, ante. 566.

As a matter of fact, however, there is no necessary conflict between the State and Federal law on the subject, and as presented in the record. The Volstead Act recognizes and provides for the sale of flavoring extracts, enacting in section 4, among other things, that the law shall not apply to flavoring extracts and syrups that are unfit for use as a beverage or for intoxicating beverage purposes, the same in effect and on the evidence as our own exception, "flavoring extracts or essences when sold as such," the testimony on the part of defendant showing that the extracts sold or offered for sale in this instance, when properly made, were "about as fit for drinking purposes as shellac or shoe polish." And in any event our statute, more stringent in this respect than the Volstead Act, contains an absolute prohibition of sale of extracts for beverage purposes having in them any alcohol whatever.

It is further urged for the State, and we understand it was on this that his Honor based his ruling, that defendant failed to bring his case under the exception, as claimed, for that the labels show it was only imitation extracts, but we have already referred to the evidence offered by defendant on this point that these words on the label did not at all mean that the articles offered were imitation extracts but they only had reference to the flavor they had endeavored and were intending to produce.

Having given this case most careful consideration, and reached the conclusion that it has not been tried in accordance with the law as it prevails in this jurisdiction, we must direct that there be a new trial of the issue, undisturbed by the dire and distressful calamities predicted as the result of such a course.

More important, even, than the prohibition law is the constitutional principle which guarantees to every citizen charged with crime an impartial and lawful trial by a jury of his peers.

Venire de novo.