Commonwealth v. Berdenella , 1926 Pa. Super. LEXIS 353 ( 1926 )

PORTER, P.J., and GAWTHROP, J., dissent.

Argued March 10, 1926. The first section of the Act of March 27, 1923, P.L. 34, concerning alcoholic liquors, declares, "That this entire act is an exercise of the power granted by Amendment XVIII of the Constitution of the United States, and of the police power of this Commonwealth for the protection of the public welfare, health, peace, safety and morals of the people of this Commonwealth — and all of its provisions shall be liberally construed for the accomplishment of these purposes." This court has consistently interpreted the act in the light of the provisions of the foregoing section.

The question involved in this appeal is a narrow one, but of great importance in the administration of the laws enacted by this Commonwealth in enforcement of the 18th Amendment.

Appellant was indicted for the unlawful possession of intoxicating liquors contrary to the provisions of the Act of March 27, 1923, supra, and convicted. There was ample evidence to sustain the conviction; appellant's only complaint is to the charge of the court.

On the part of the Commonwealth it was proved that three quarts of whiskey were found by police officers at appellant's home. He admitted that it belonged to him, was intoxicating and was what was left of a gallon of whiskey which he had purchased sometime in January, 1925, and since the passage of the Act of 1923 aforesaid. He testified that his purpose in buying the whiskey was to rub it on his legs for rheumatism and denied having used any of it for beverage purposes. He admitted that the liquor had not been purchased on a physician's prescription.

The court below, in its charge, used the following language, which is assigned for error: "Where, in a criminal prosecution the defendant is charged with the unlawful possession of intoxicating liquor, and the defendant's defense is that the liquor was possessed for medicinal purposes only, that is no defense when the defendant admits he did not procure the intoxicating liquor on a physician's prescription." We are of the opinion that in view of the defendant's own testimony this excerpt of the charge was not improper.

The Act of 1923 declares it unlawful for any person to manufacture, sell, offer for sale, barter, furnish, transport, possess or deliver within, import into or export out of this Commonwealth any intoxicating liquor for beverage purposes, except as thereinafter set forth; and provides that proof of the possession of such intoxicating liquor shall be prima facie evidence that the same was acquired, possessed or used in violation of the act (sec. 3). It also provides, (sec. 13), that in any prosecution under the act when proof has been given of the manufacture, sale, transportation, possession, etc., of any intoxicating liquor, the same shall be prima facie evidence that such liquor was so manufactured, sold, transported, possessed, etc., for beverage purposes; but it is expressly declared that such latter presumption shall not apply, inter alia, to the sale of intoxicating liquor for medicinal purposes to a duly registered pharmacist, physician or surgeon, or by any such pharmacist upon the prescription of a duly licensed physician or surgeon.

The Act of 1923 makes no provision for the regulation of sales of intoxicating liquors for medicinal purposes to pharmacists, physicians, and surgeons, or by pharmacists on the prescription of physicians and surgeons; but apparently recognizes that the Act of Congress (Act of October 28, 1919, c. 85, Barnes Federal Code, sec. 8351-e), does provide therefor, and the validity of such regulations. It certainly did not contemplate or intend the opening of the flood gates to a stream of illegal and prohibited intoxicating liquor by the device of having the law breaker declare his intention to manufacture, sell, transport or possess it for medicinal uses.

Under the Act of Congress aforesaid no person, without a permit from the Commissioner of Internal Revenue, may lawfullypurchase intoxicating liquor for medicinal purposes, except upon a physician's prescription, (Title II, sec. 6); and this was what the framers of our state statute evidently had in mind when they exempted from the presumption that intoxicating liquor possessed by any one was for beverage purposes, such liquor as had been sold by any duly registered pharmacist upon the prescription of a duly licensed physician or surgeon. The provisions of the federal act were evidently in contemplation by the legislature when enacting our own statute in enforcement of the 18th amendment. See Com. v. Bernabei, ___ Pa. Superior Ct. ___ No. 226 October Term 1925, decided December 14, 1925, where a somewhat similar situation existed as respects narcotic drugs. The only person who can present the defense that intoxicating liquor obtained by him since March 27, 1923, was possessed for medicinal uses is one who has so acquired it lawfully, that is, one who has obtained it from a duly registered pharmacist upon the prescription of a duly licensed physician.

Any other construction would practically nullify the act, for the words "for beverage purposes" modify all the forbidden acts and practices: to wit, manufacture, sell, offer for sale, barter, furnish, transport, deliver, import and export, no less than, possess. If one who admits that whiskey in his possession was illegally sold to him without a physician's prescription may escape a conviction of illegally possessing it by saying "I don't drink it. I use it only to rub on my legs" — so may the proprietor of an illegal still, say "I admit I hold no federal distiller's permit, but I don't manufacture whiskey for beverage purposes, but only for medicinal uses." The rum-runner could likewise plead, "I have no federal permit authorizing the transportation of whiskey, but I am not transporting it for beverage purposes, but only to be used as medicine"; and the bootlegger could evade punishment by saying, "I hold no federal permit for the sale of intoxicating liquors, but I never sell whiskey to be drunk, but only for external application." Giving the Act of 1923 the liberal interpretation it calls for in aid of the enforcement of the 18th Amendment and of the police power of this Commonwealth for the protection of the public welfare, health, peace, safety and morals of the people, we are obliged to hold there can be no lawful possession of intoxicating liquors for medicinal purposes unless obtained in compliance with the Act of Congress, from a registered pharmacist on a licensed physician's prescription; and while we do not prosecute in our state courts for the infraction of the Act of Congress in unlawfully purchasing the liquor, we do proceed against the offender for the violation of our own statute against unlawful possession, if it is thereafter kept within the state.

We are aware that our decision runs counter to the rulings of the Court of Criminal Appeals of Texas, cited by the appellant in his brief; but the statutes of this Commonwealth and of the State of Texas in enforcement of the 18th Amendment are not alike. Furthermore, we could not agree with that court in holding (Fuller v. State, 95 Tex.Crim. Rep. 476, 255 S.W. 192), that after the defendant had been permitted to testify that he was transporting whiskey for medicinal purposes — in treating lung trouble —, the Commonwealth might have combatted the proposition by showing "that he had not such disease, or that whiskey was not a medicine, or it had no curative power for the disease in question." Our practice does not permit the introduction in the trial of such extraneous issues. We prefer to take the ground above stated.

The assignments of error are overruled and the judgment is affirmed and it is ordered that the defendant appear in the court below at such time as he may be there called and that he be by that court committed until he has complied with the sentence of the court.

PORTER, P.J., and GAWTHROP, J., dissent.