State v. Roberson

The defendant was convicted of having intoxicating liquor in his possession for beverage purposes, in violation of Act 39 of 1921 (Extra Sess.) p. 42.

It was explained in a bill of particulars, annexed to the bill of information, that the defendant was found drunk, in bed, in his home, having partaken too freely of a wine that he had made of May haws.

He claimed the exemption allowed by the fourth section of the statute, viz.:

"Sec. 4. That nothing in this act shall be construed to forbid the possession of intoxicating liquors in one's private dwelling or abode while the same is occupied by him as such a dwelling, provided such intoxicating liquors were legally acquired and are only for personal consumption by the owner thereof and his family residing in such dwelling and his bona fide guests when entertained by him therein.

"Nothing in this act shall be construed to prevent a citizen who is a householder from brewing beer and fermenting wine for the use of himself and his family in his home and his bona fide guests entertained in such home."

The case was submitted on a statement mutually admitted to be the facts of the case, viz.:

"The defendant, Roberson, was renting a room in the house of another person, and was eating and sleeping there. It was the only home he had anywhere. In the room so occupied by the defendant as his home was found a jug containing May haw wine, which had been made by him, for his own use, and was never moved from the room. The wine was intoxicating if drunk in sufficient quantities."

The only question that was left for the judge to decide was whether a man so living alone in a rented room was a "householder," as the word is used in the statute. The judge ruled that the man was not a householder. A motion for new trial and motion in arrest of judgment were overruled, and bills of exception were reserved. The sentence imposed was too small to give the defendant a right of appeal. The case is before us on a writ of certiorari.

Although, in some respects, a man without family, occupying only a rented room, might not be called a householder, no reason has been suggested for discriminating against him and in favor of a man of family, living in his own house, with regard to the right to make home brew or wine. Webster's New International Dictionary gives both definitions of the word "householder," viz.: "The master or head of a family; one who occupies a house or separate tenement with his family or alone." The purpose of the Legislature, in confining this privilege to householders, was to make sure that wine and beer should not be made or possessed for sale, or except for home consumption. Our conclusion is that the ruling in this case was wrong.

The district judge says, in his answer to the rule which we issued, that, besides ruling that the defendant was not a householder, he deemed the provisions of section 4 of the statute to be in conflict with the Volstead Law (U.S. Comp. St. Ann. Supp. 1923, § 10138 1/4 et seq.), and therefore invalid. The idea was that a Legislature could not make the prohibition law less severe than the Congress has made it. Of course, a state Legislature cannot curb the authority of the federal officers to prosecute in the federal courts violators of the federal laws; but a state Legislature is not compelled to go as far as the Congress has gone in the making of prohibition laws, or to enact a state prohibition law at all, for that matter.

The verdict and sentence in this case are annulled, and it is ordered that the relator be discharged and the prosecution dismissed.

OVERTON and THOMPSON, JJ., dissent.