State v. Bishop

Dean, J.

William L. Bishop was complained against in the district court for Dodge county and there charged with unlawfully having in his possession, on or about April 11, 1931, sixty-nine pints of beer, or a quantity alleged to have been more than reasonably sufficient for his own personal needs. ■ It is charged by the state that the liquor in question here was held by the defendant for unlawful disposition and that such liquor was acquired after May 1, 1917, when the prohibitory law went into effect. The action was tried to a jury and, pursuant to the court’s instructions, a verdict was returned finding the defendant not guilty. The record has been brought here upon the exceptions of the state to the rulings of the trial court, pursuant to the provisions of section 29-2314, Comp. St. 1929, solely for a determination of the law to govern in any similar case now pending or that may hereafter arise.

Section 53-111, Comp. St. 1929, contains the following provision:

“Any person may purchase and keep in his possession ethyl alcohol treated as required by this act so as to be. unfit for use as a beverage. It shall be unlawful for any person to have, possess or permit any intoxicating liquor to be in, upon or about any room, office, building or in any other place except in such person’s private dwelling-house, and except when and where and in the manner especially authorized as herein otherwise provided; and no person shall keep or possess intoxicating liquor in his private dwelling-house in an amount more than is reasonably sufficient for his personal use and needs: Provided, however, that in any action brought under the provisions of this act, or based upon complaint of any violation thereof, or in any civil action growing out of any such actions, the possession, in and of itself, of any intoxicating liquor, including the possession of raw whiskey, commonly called ‘moon shine,’ in a private dwelling-house by the person against whom the violation of the act is charged, shall constitute prima facie evidence that such liquor was kept by such person with the purpose of unlawful sale, use or disposition in violation of law.”

Pursuant to the plain and unmistakable language of the statute, we are compelled to adopt the view that the foregoing section provides that a person may have in his private dwelling-house an amount of liquor “reasonably sufficient for his personal use and needs.”

The state contends, however, that the right to keep a reasonable quantity of intoxicating liquor in a private dwelling-house for personal use does not imply any lawful means for obtaining possession thereof, and that the privilege of possessing a reasonable amount is limited to that intoxicating liquor acquired before the prohibitory law became effective.

The court instructed the jury that the date of the manufacture of the liquor was immaterial and had no bearing on the guilt or innocence of the defendant. And the jury were also instructed that the defendant had a legal right, under the act, to keep or possess intoxicating liquor in his private dwelling-house in an amount reasonably sufficient for his personal use and needs and that “the only issue in this case bearing on the guilt or innocence of the defendant is as to the reasonableness of the amount.”

In this respect, there is evidence tending to prove that a single can of malt is sufficient to make the amount of beer possessed by the defendant and that it would be impracticable to make a less quantity. It is admitted that the state chemist, were he called, would have testified that the beer was intoxicating liquor. And the evidence establishes, and it is admitted in the brief of the state, that the beer was not in a greater quantity than wás reasonably sufficient for the defendant's personal use and needs.

The statute in question contains no provision that the liquor, to be lawfully possessed in a private dwelling-house, must be liquor that was manufactured prior to May 1, 1917, and we do not think the court erred in refusing to so instruct the jury. The statute was adopted in 1917 and, since that time, other legislatures have had an opportunity but no change has been made in respect of the date when liquor, to be lawfully possessed in a private dwelling-house, must have been obtained. And when the language of a statute is clear and unambiguous, courts will not by construction usurp the function of the law-making body and give it a meaning not intended or expressed by the legislature.

It is contended that the court erred in refusing to instruct the jury that the possession of the beer in question was presumptively for an unlawful purpose unless the defendant “has satisfactorily accounted for and explained the possession thereof and that it was not kept ■for an unlawful purpose.” We find no error in the court’s ruling, for the reason that no attempt was made by the state to show that the liquor was kept for an unlawful-purpose. The evidence stands uncontradicted that the defendant intended the liquor for his own personal' use and, to a certain extent, as a laxative.

Upon an examination of the evidence and the law applicable thereto, we conclude that one may not be convicted of illegal possession of intoxicating liquor, who has in his private dwelling-house intoxicating liquor for his own personal use and needs only, and in amount no more than reasonably sufficient for such purposes, regardless of when such liquor was manufactured.

Exceptions overrule».