State v. Wade , 63 Vt. 80 ( 1890 )

The opinion of the court was delivered by

TAFT, J.

This was a complaint for keeping as a common nuisance, a room where intoxicating liquors were unlawfully sold, furnished, or given away, or kept for such purpose. The only error of which the respondent complains was the refusal of the court to comply with his requests for instructions to the jury. They were fourteen in number. The first, second, and fifth were complied with, and the eighth was waived. In a jury trial it is. the duty of the court to instruct the jury as to the rules of law applicable to the facts which the testimony in the case tends to establish, and the court should refuse all instrirctious asked for upon questions not made by the evidence. It does not appear that there was any evidence in the case tending to show that the respondent brought the liquors, found in his jnemises, from a foreign country or from any of our sister states, and there was no question upon trial as to any conflict between the laws of the United States and of this State. For these reasons, requests, numbered four, six, seven, nine and eleven were properly ignored.. The third and tenth requests were that the jury should be told that the presumption was that the liquors were brought, from a foreign country or another state, and that if they were of foreign make the defendant cordd not be found guilty, though he -did keep them for sale. Upon the evidence in the case, whether the liquors were of foreign or domestic manufactoe was immaterial, for the respondent could violate the law by •selling foreign liquors, as well as by selling those made in this State. In only one instance can the question of its being a foreign commodity be material, and that is in a respect which has always been recognized by our laws prohibiting the sale of liquor. Our present law, section 3819 K. L. relating to the seizure of liquors intended for unlawful sale, contains the provision originally enacted as Sec. 12, No. 24, Acts of 1852, exempting from condemnation liquor which is of foreign production and has been imported under the laws of the United States and in accordance therewith and is contained in the original packages in which it was imported, in quantities not 'less than the laws of the United States prescribe. The same principle was recognized and applied in Jones v. Hard, 32 Vt. 481. It is plain from the exceptions that it was entitled to no protection as an import into the United States. In the vessels and quantities stated in the exceptions, it could not lawfully be imported, for if in bottles they should be packed in packages containing not less than one dozen bottles in each package, and if in bulk, then in casks of not less than fourteen gallons in capacity. Kev. St. U. S. Sched. I). § 2504. But even if the liquors had been at sometime lawfully imported, it could not reasonably have been claimed that they were entitled to protection against the police power of the State, for it had been by the acts of its owner deprived of its •character as an import, and become commingled with the common property of the country. Aside then from its character as an import, and as an article for the respondent’s own use, the right to which for that purpose was fully protected by the charge of the court, it is clear that the liquors never had any legal existence, and might ajkly be described in the words of the learned Bedfield, J ., in State v. Smith, 55 Vt. 82, as an article that “ has no rights that the law is bound to respect. It is a public enemy that when discovered the law smites.” Upon the evidence therefore the third and tenth requests were rightly refused.

There is another reason why the tenth request should not have been complied with. The request was that if any portion of the liquors were of foreign make the respondent could not be found guilty even though he did keep.the same for sale-; i. e. if tiie small quantity of gin in a bottle, was made in Holland, that-protected his whole establishment, although he was unlawfully selling beer, rum and whiskey. We need spend no time with such an absurd proposition ; it is not law.

The twelfth request “ that the legislature of this State cannot make any valid law so as to cast the burden of proof on the defendant to show that he is engaged in a lawful business,” we have no occasion to examine. We are not aware of any such law, and no burden of that kind was placed on the respondent by the charge of the court. As to this, as well as the two remaining requests, we think them all covered by the instructions “that the respondent wTas presumed innocent of the offences charged, until the presumption was overcome by evidence. that the State produced against him. That the burden was cast upon the State to prove beyond any reasonable doubt that the liquors kept by the respondent, were kept for the purpose of unlawful sale.” We think this was equivalent to saying that if the respondent kept the liquors for any lawful purpose, they should find him not guilty, that to convict him, they should be satisfied beyond any reasonble doubt that he kept them for unlawful sale.

Upon inspection of the record the court are of the opinion that judgment ought to Toe rendered upon the verdict, a/nd it is so rendered, sentence ■i/niposed, a/nd execution ordered.

Noyce, J., being ill, did not sit.