(Syllabus.)

1. INTOXICATING LIQUORS — Unlawful Possession — Alcohol — "Spirituous, Vinous, Fermented, and Malt Liquors." Alcohol is within the definition of spirituous, vinous, fermented, and malt Page 133 liquors prohibited from sale, etc., within this state, and the possession of such intoxicating liquor with intent to sell the same, except in the manners specifically provided and for the purposes allowed by the Constitution and subsequent statutory enactments in furtherance thereof, is a crime against the laws of this state.

2. SAME — Information — Sufficiency. For information held to state sufficiently the facts necessary to constitute the offense of unlawful possession of alcohol with intent to sell the same unlawfully, see body of opinion.

3. EVIDENCE — Judicial Notice — Intoxicating Nature of Alcohol. Courts will take judicial notice that alcohol is an intoxicating liquor.

 

Appeal from County Court, Canadian County; R.B. Forrest, Judge.

T. Kollar was charged with unlawfully possessing intoxicating liquors, and from a judgment sustaining a demurrer to the information, the State appeals. Reversed.

S.P. Freeling, Atty. Gen., R. McMillan, Asst. Atty. Gen., and E.F. Maley, Co. Atty., for the State.

J.I. Phelps, for defendant in error.

MATSON, J. On the 16th day of April, 1917, E.F. Maley, as county attorney of Canadian county, filed in the county court of said county an information against one T. Kollar, the charging part of which is as follows:

"That one T. Kollar, late of the county of Canadian and state of Oklahoma, on or about the 14th day of April, in the year of our Lord one thousand nine hundred and seventeen, at and within said county then and there being, did then and there willfully and unlawfully have possession of intoxicating liquors, to wit, four quarts alcohol, with the unlawful intent to then and there sell, barter, give away, and otherwise furnish the same to others unlawfully, contrary to the form of the statute in such case

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made and provided, and against the peace and dignity of the state."

The defendant was arrested and brought before the court, and as a plea to said information filed a demurrer upon the following grounds:

"That the same does not charge facts sufficient to show that the laws of the state of Oklahoma had been violated.

"That the same does not charge a violation of the laws.

"That the same is indefinite, uncertain as to the facts attempted to be charged.

"That the same is not drawn and presented as provided by law."

On the 22d day of May, 1917, the said cause coming on for hearing upon the demurrer of the defendant to the information, the trial court found that said information did not state facts sufficient to constitute a public offense, and that the said demurrer of the defendant should be, and the same was, sustained. The trial court thereupon ordered and adjudged that the demurrer of the defendant be sustained, and that the defendant be discharged, to which ruling the state excepted, and exceptions were allowed, and an appeal prayed to this court, and said appeal has been properly perfected in the manner provided by law.

The question to be decided, therefore, in this appeal is a reserved question of law purely, namely: Do the allegations of the facts contained in the foregoing information constitute a public offense under the laws of this state?

The information is based upon section 3605, Revised Laws 1910, which in part provides as follows:

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"It shall be unlawful for any person, individual or corporate, to manufacture, sell, barter, give away, or otherwise furnish except as in this chapter provided, any spirituous, vinous, fermented or malt liquors, or any imitation thereof or substitute therefor; or to manufacture, sell, barter, give away, or otherwise furnish any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per cent. of alcohol, measured by volume, and which is capable of being used as a beverage, * * * or to have the possession of any such liquors with the intention of violating any of the provisions of this chapter."

The information charges the defendant with the possession of four quarts of alcohol, and it is the contention of the state that alcohol is included within the definition of "spirituous, vinous, fermented or malt liquors," which are prohibited from sale, and also from possession with intent to sell.

Counsel for defendant contends to the contrary, stating in the brief filed, in substance, that the term "spirituous, vinous, fermented or malt liquors" must be construed not to include alcohol, but only of such kind of liquors as whisky, brandy, rum, gin, wine, beer, ale, and fermented cider, which contain alcohol, and are well-known intoxicating beverages, contending that it was the intention of the Legislature to prevent the sale and use of such liquors as a beverage, and not the sale of pure alcohol, and that the information is insufficient to state an offense without the additional allegation that the alcohol possessed by the defendant was such as was capable of being used as a beverage in its then condition.

The trial court concurred in the construction of the law contended for by counsel for the defendant, and sustained

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the demurrer to the information upon that ground.

It is evident upon a careful consideration of the provisions of section 3605 that the Legislature intended to prohibit the possession with intent to sell of any kind of spirituous, vinous, fermented, or malt liquors. The provision of said section "and which is capable of being used as a beverage" refers to liquors and compounds which, although medicated, contain as much as one-half of one per cent. of alcohol, measured by volume.

In the case of Sellers v. State, 11 Okla. Cr. 588, 149 P. 1071, this court, where the question here under consideration was not directly involved, sanctioned the seizure of alcohol as being within the purview of the statute against the possession of spirituous, vinous, fermented, or malt liquors, although the judgment in that case was reversed upon another ground. Other cases in which judgments of conviction for violation of the prohibitory liquor laws were involved, and in which alcohol constituted a part of the liquors seized, and which have been sustained on appeal by this court, might be cited, although the question of whether or not pure alcohol came within the purview of the statute was not directly passed upon; such question never having been directly raised in any previous appeal.

It is apparent, however, from a consideration of such cases, although not directly decided, that this court has in the past always considered alcohol to be within the purview of section 3605, supra, prohibiting the manufacture, sale, etc., and possession with intent to sell unlawfully, spirituous, vinous, fermented, or malt liquors.

By the prohibition ordinance separately adopted at the time of adoption of the Constitution the people of this

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state prohibited the sale, barter, giving away, or otherwise furnishing of "intoxicating liquors of any kind," except as otherwise provided therein, and by the same ordinance it was provided that the Legislature might thereafter provide for the sale of denaturized alcohol for industrial purposes, and for the sale of alcohol for scientific purposes to scientific institutions, universities, and colleges, and also for the sale of alcohol for medical purposes and to apothecaries for purposes of compounding prescriptions and other medicines, etc. The prohibition ordinance limited the purposes for which alcohol might be sold and distributed, but left it open for future legislative action to determine the method of sale and distribution within the limitations provided.

Subsequently the Legislatures of this state have enacted statutes making effective the terms of said prohibitory liquor ordinance relative to the sale and distribution of alcohol in strict conformity with the intention of the people when adopting said prohibition ordinance; the last expression of the legislative will being contained in chapter 70, Session Laws 1910-11, p. 154.

Courts take judicial notice that alcohol is an intoxicating liquor. It forms the basic principle, the intoxicating principle, of all spirituous, vinous, fermented and malt liquors. It is a constituent element in each of said liquors. Pure alcohol may be easily diluted so as to be capable of being used freely as a beverage. To hold that the people, in adopting the prohibition ordinance, and the Legislature, in enacting statutes to make prohibition effective in this state, intended only to prohibit the sale of such intoxicating liquors containing alcohol which were capable of being

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used as a beverage in the form in which sold, and did not intend to prohibit the sale of pure alcohol for beverage purposes, would open the way for persistent unlawful sales of alcohol in its original state, and would absolutely render nugatory those provisions of the Constitution and the subsequent statutes providing specifically the manner in which pure alcohol should be sold, distributed, and used within this state, to wit, denaturized alcohol for industrial purposes and grain alcohol for scientific purposes to scientific institutions, universities and colleges, and also to apothecaries for the purpose of compounding prescriptions and other medicines, etc. Said constitutional and statutory provisions relative to the sale and distribution of alcohol must be construed to exclude the sale of such product by persons unauthorized, and except in the manner specifically provided. That the defendant came within the class of persons authorized to possess alcohol for a lawful purpose would be a matter of defense not necessary to be pleaded in the indictment or information, as matters purely of defense need not be pleaded. Penn v. State, 13 Okla. Cr. 367, 164 P. 992, L.R.A. 1917E, 668, and cases cited.

Alcohol in any form is the product either of distillation or fermentation. It is, therefore, in our opinion, clearly within the purview of a statute which prohibits the sale of spirituous or fermented liquors for purposes other than heretofore enumerated.

It is the opinion of the court, therefore, that the trial court erred in sustaining the demurrer to the information in this case on the ground that it did not state a public offense.

The trial court made no order authorizing or directing a new information to be filed charging the offense. For

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a discussion of the proposition as to the finality of the trial court's judgment sustaining the demurrer to the information, and the right of the state to further prosecute, in the absence of express authorization or direction to that effect by the trial court, see opinion of this court in State v. Vaughn, 15 Okla. Cr. 187, 175 P. 731.

For the reasons stated, the judgment of the county court of Canadian county sustaining the demurrer to the information in this case, for the reason that the same did not state a public offense, is reversed.

DOYLE, P.J., and ARMSTRONG, J., concur.