State v. Porter

Respondent was arrested in April, 1926, charged with the crime of being a jointist. The case came on for trial in September, 1926, a jury was empaneled, and the prosecuting attorney made a full and complete opening statement. The gist of the statement made was that the respondent had opened up and maintained a drug store in which he was selling large quantities of denatured alcohol, and that he had sold it to numerous persons for the purpose of its being used as a beverage; that it was intoxicating, and had in fact intoxicated a large number of men who continuously patronized the place. After this statement had been made, the following took place:

"MR. CORKERY (attorney for respondent): I assume also, Mr. Bunge, that your evidence would show that the denatured alcohol was in accordance with the government formula?

"MR. BUNGE: Yes. And I want to make one further statement if Your Honor please. Yes, the denatured alcohol will be in accordance with the government formula, that is true, and our case, members of the jury, as far as any intoxicants are concerned, will show only that denatured alcohol was sold there, no other intoxicant, no beer, or whiskey, or wine, or alcohol of any other nature, merely denatured alcohol. I want to make that plain."

A police officer was then sworn as a witness on behalf of the state, and the respondent challenged the sufficiency of the evidence as shown by the opening statement of the prosecuting attorney to establish the crime charged in the information, or establish any crime, and moved that the jury be directed to return a verdict of not guilty. This motion was granted by the court, and the state has appealed.

[1] We think it is very doubtful if the state has a right of appeal in this case, the defendant having been acquitted by a jury under the direction of the court. However, passing that question, we must remember that the prosecution in this case is for a violation of the state prohibition act, and is brought under Rem. Comp. Stat., § 7328 [P.C. § 3179h]. We are confronted at once with Rem. Comp. Stat., § 7332 [P.C. § 3187], which provides:

"The provisions of this act shall not be construed to prohibit the manufacture of vinegar, sweet cider, or unfermented fruit juice for domestic consumption or for sale, nor to prohibit the manufacture and sale of denatured alcohol."

This language is plain and unambiguous. It needs no construction. Under our state prohibition statutes the sale of denatured alcohol is expressly permitted.

The judgment of the trial court is affirmed.

MACKINTOSH, C.J., MAIN, and MITCHELL, JJ., concur.