
    Mrs. A. Elmore v. State. (two cases).
    
      (Jackson.
    
    April Term, 1916.)
    1. INTOXICATING LIQUORS. Evidence. Internal revenue license. Statute.
    Acts 1903, chapter 35'5, making 'the payment of an internal revenue special tax as a retail liquor dealer prvma faoie evidence of sales within the law prohibiting sales of liquor within four miles of a schoolhouse, and Acts 1909, chapter 384, providing that in all prosecutions for violations of the law against the sale of intoxicating liquors copies of the records in the office of the internal revenue collector, showing defendant’s payment of an internal revenue special tax as a liquor dealer, or the issuance of an internal revenue special tax stamp, when certified by the revenue collector, shall be competent evidence, are drastic and in derogation of the common-law rights of the citizen, and must not be too liberally construed against the citizen. (Post, pp. 349, 350.)
    Acts cited, and construed: Acts 1913, ch. 355; Acts 1909, ch. 384.
    Case cited and approved: Brinkley v. State, 125 Tenn., 371.
    2. CRIMINAL LAW. Reception. of evidence. Identity of accused. Liquor license.
    In a prosecution for selling liquor within four miles of a schoolhouse, evidence li&lü, not to sufficiently identify the accused with one Mae Elmore to permit the introduction in evidence of a federal liquor license to one Mrs. Mae Elmore to engage in the business of retail liquor dealer. (Post, pp. S'49, 350.)
    3. INTOXICATING LIQUORS. Offense. Issues and proof. Schoolhouse.
    In a prosecution for selling liquor within four miles of a schoolhouse, the existence of a schoolhouse, where school is ordinarily kept, within four miles of defendant’s place of business, is a fact which must be averred in the indictment and proven on ■the trial, notwithstanding Acts 1909, chapter 1, which extended the four-mile law to the whole state. (Post, pp. 350-352.)
    Cases cited and approved: Kelly v. State, 123 Tenn., 516; Motlow v. State, 125 Tenn., 560.
    FROM SHEKBY
    Error to the Criminal Court of Shelby County.— Thos. W. Harsh, Judge.
    D. B. Sweeney, for plaintiff in error.
    Wm. H. Swiggart, Assistant Attorney-General, for the State.
   Mr. Swiggart, Special Judge,

delivered the opinion of the. Court.

This is an appeal in the nature of a writ of error, in two cases, from the judgments of the criminal court, of Shelby county, wherein the plaintiff in error, Mrs. A. Elmore, hereinafter called the defendant, was fined $50 and committed to the workhouse for three months, in both cases for selling liquor within four miles of a schoolhouse.

The principal er,rors assigned for a reversal are: (1) That there is no proof that the alleged sales were made within four miles of any schoolhouse,- (2) that the court was in error in permitting the State to put in evidence against her, over her objection, a certified ■copy of the internal revenue license, issued to one Mrs. Mae Elmore, 320 High street, Memphis, Tenn. This federal license to engage in the business of a retail liquor dealer was issued on October 19, 1915, and ■covers the period from July 1, 1915, to June 30, 1916, and was issued in the name of Mrs. Mae Elmore.

Defendant insists that the State failed to connect her with this federal liquor license in any manner, or to show that it was issued to her, or that she ever lived at 320 High street in Memphis, or that her name is Mae Elmore, or that she was ever known by that name and, therefore, that this document was incompetent as against her. It was shown that defendant once lived on High street, but not that she lived at 320 High street. She is shown to have left that community, in the summer of 1915, because the police were “hot after her.” But when the present cases were, begun she was running a grocery store about six miles •out in the country from the city, at a place called “South Speedway and Horn Lake Road.” There is no proof showing that she was the same person as Mrs. Mae Elmore, although the proof creates a strong ■suspicion that she may be the same person. Still the ■court thinks that her identity with Mae Elmore is not •sufficiently proven to warrant the introduction as evidence of this federal liquor license against her, and that the trial court committed error in permitting the State to introduce this document against her. The act of the legislature making suck a liquor license competent evidence, and also prima facie evidence, of guilt is a drastic statute, and is in derogation of the common-law rights of the citizen. See Acts 1903, chapter 355; Acts 1909, chapter 384; Brinkley v. State, 125 Tenn., 371-388, 143 S. W., 1120. While these statutes are in keeping with sound public policy, now generally .acquiesced in, still they must not be too liberally construed against the citizen. Before a conviction should be allowed to stand, where it is based upon the presumption of guilt under these acts, it .ought to be clearly shown that the defendant took out the federal license, or had some guilty connection therewith.

Again, the second assignment of error, to the effect that the State failed to prove that there was a schoolhouse, where school is ordinarily kept, within four miles of the place of business of defendant, or the place where it is claimed by the State that the liquor was sold, is well made and must be sustained. The bill of exceptions does not show any such proof, or that the State in any way offered to make such proof, of the existence of the sehoolhouse.

We think that this is an essential fact to be averred in the indictment or presentment, and that it must be proven on the trial. The existence of a sehoolhouse within four miles of the place where the sale of liquor was made is of the essence of the offense,, and without such proof, there can be no conviction under a presentment or indictment charging the sale of liquor within four miles of a sehoolhouse. The assistant attorney-general submits to tbe court, in a plausible argument found in bis brief, that now, since tbe passage of Acts 1909, chapter 1, extending tbe four-mile law to tbe whole State, in effect, that actual proof of tbe existence of schoolhouse within four miles of the place of sale is rendered unnecessary, and that tbe court and jurors may take judicial knowledge of tbe fact that there is no place within tbe State where such sales could be made without being within four miles of a schoolhouse. He refers tbe court to tbe language of this court in Kelly v. State, 123 Tenn., 516, 533, 132 S. W., 193, and tbe case of Motlow v. State, 125 Tenn., 560, 561, 145 S. W., 177. It is true this court did use language in those cases indicating that tbe whole State was practically covered by this four-mile statute, which is probably true; but tbe court was speaking historically about tbe effect of this act of 1909, and did not intend to say that such proof was rendered unnecessary, or could be dispensed with, on tbe trial of these four-mile eases. Tbe indictments in tbe present cases do not charge tbe sale of liquor without license, but specifically that tbe sales were made within four miles of a schoolhouse. Before there can be a conviction under such an indictment, tbe State must prove, not only that there was a sale of intoxicating liquors, but that it was made within four miles of a schoolhouse, where a school is ordinarily kept, in tbe ,State. Without such proof, tbe chief element of tbe offense charged would be lacking. There should not be, in tbe very nature of the oases, any difficulty in making such proof, if in fact there was a schoolhouse located within four miles of the place in question. For these reasons, the verdicts and judgments in these cases will be set aside, and new trials granted.  