
    J. W. Brinkley v. State.
    
      (Nashville.
    
    December Term, 1911.)
    INDICTMENTS AND PRESENTMENTS. For selling liquor without license does not Include, as a less offense, the offense for exercising privilege of retail liquor dealer without payment of prescribed tax, when.
    Under a presentment for selling intoxicating liquors without the .license required by law, and in violation of Acts 1899, cb. 161, sec. 1, under wbicb a single sale is sufficient to constitute tbe offense, tbe defendant cannot, in tbe absence of evidence of any specific sale authorizing a conviction of tbe offense charged, be convicted of violating Acts 1909, cb. 479, sec. 16 (page 1759), making it a misdemeanor to exercise tbe privilege of a retail liquor dealer without first paying the taxes prescribed for the exercise thereof, though be has a United States revenue license to retail liquor, tbe procuring of wbicb is made by tbe said act (page 1743) prima facie evidence that be is in tbe retail liquor business, because tbe offense denounced by said act of 1909 is not an offense less than and included in tbe offense denounced by said act of 1899, within tbe meaning of tbe statute (sections 7085 and 7195 of Shannon’s Code), permitting, on an indictment for an offense admitting or consisting of different degrees, a conviction of a lower degree of tbe offense than that in form charged, or of any offense necessarily included in that charged. Tbe fact that the punishment prescribed for tbe violation of the offense denounced by said act of 1909 is less than that prescribed by said act of 1899 is not determinative, and does not make tbe offenses denounced by said act of 1909 an offense less than and included in that denounced by said act of 1899. A single sale is sufficient to constitute tbe offense under said act of 1899, but not that under said act of 1909, under wbicb a number of sales or acts constituting a business is necessary to constitute tbe offense, and certainly an offense requiring a number of sales to constitute it cannot be less in degree than an offense requiring but a single sale to constitute it.
    Code cited and construed: Secs. 7085, 7195 (S.); secs. 5951, 606Í (M. & V.); secs. 5122, 5222 (T. & S. and 1858).
    Acts cited and construed: Acts 1832, cb. 22; Acts 1851-52, cb. 36; Acts 1899, cb. 161, secs. 1, 2; Acts 1909, cb. 479, secs. 4, 16, pp. 1726, 1743, 1759.
    Cases cited and approved: McCroskey v. State, 2 Cold., 180; Fanning v. State, 12 Lea, 651.
    FROM WARREN.
    Appeal from tlie 'Circuit Court of Warren County.— Ewin L. Davis, Judge.
    John L. Willis, for Brinkley.
    Assistant Attorney-General Faw, for State.
   Mr. Justice Buchanan

delivered the opinion of the Court.

The grand jury of Warren county, at the May term of the circuit court of the year 1911, by presentment charged:

First, that J. W.. Brinkley did on the 10th day of November, 1910, unlawfully sell and tipple spirituous, vinous, malt, alcoholic, and intoxicating liquors as a beverage within four miles of a school, where school was kept, against the peace and dignity of the State, and

Second, that J. W. Brinkley did unlawfully sell and aid in selling spirituous, vinous; malt, alcoholic, and intoxicating liquors without first procuring a license for that purpose, against the peace and dignity of the State.

At the September term, 1911, defendant was put upon trial on his plea of former acquittal, and also on his plea of not guilty. Whereupon the attorney-general elected to prosecute on the second count of the presentment, and after introduction of evidence, and the charge of the court, the jury returned into court their verdict whereby they found defendant guilty under the second count, in the presentment. Motion for new trial and in arrest of judgment having been made and overruled, defendant was adjudged liable to pay a fine of fifty dollars and the costs of the cause, from which judgment he has appealed to this court and assigned errors.

The following portion of the charge of the court is made the basis of one of the assignments of error:

“No specific sale having been proven, the attorney-general does not ask for a conviction under the act of 1899, which carries with it a jail sentence; but he insists that it has been proven that the defendant is guilty, under the revenue act of 1909, of exercising the privilege of retail malt liquor dealer without a State and county license, which is a misdemeanor, punishable by fine of from ten dollars to fifty dollars. You are instructed that this lesser offense is included in and covered by the second count of the indictment in this case.”

Was this error? The act of 1909 referred to in the above excerpt from the charge was chapter 479, p. 1726, •of the Acts of that year, otherwise called the “Eevenue -Act.” On page 1743 it‘provides:

“Liquor dealers are defined as every person, company, or firm selling spirituous, vinous, or malt liquors, beer or ale, or intoxicating hitters, or any medicated or adulterated cider, or any social club or association, incorporated or otherwise, which handles such liquors for sale. The procuring of United States revenue license to wholesale or retail liquor dealers shall be taken as prima facie evidence that the parties are in the wholesale or retail liquor business, and are subject to State and county taxes, unless established by proof that they are not so engaged. Upon any clerk’s receiving knowledge of such internal revenue license, he shall have a right to collect the taxes by distress warrants: Provided, that nothing in this act shall authorize or legalize the sale of liquors.”

On page 1759 it provides:

“Sec. 16. Be it further enacted, that it is hereby declared a misdemeanor for exercising any of the foregoing privileges without first paying the taxes prescribed for the exercise of the same, and all parties so offending shall be liable to a fine of not less than ten dollars nor more than fifty dollars for each day such privilege is exercised without license; but this inhibition shall not apply to any person, firm or corporation engaged in interstate commerce.”

The second count in the presentment, on which the attorney-general elected to try, was predicated on chapter 161 of the Acts of 1899, whereby under section 1 it is made a misdemeanor, punishable by fine of not less than, fifty dollars nor more than $200, and by imprisonment in the county jail or workhouse for six months, for each offense, to sell or aid in selling in any way whatever intoxicating liquors without a license required by law, and whereby, under the second section, the same punishment is provided for any person convicted of allowing, after due notice, the illegal sale of intoxicating liquors on their premises or lands, by one who has not the license required by law to make such “sales.”

It is clear that the second count of the presentment was not based on the second section of the act of 1899. It is equally clear that it was based on the first section of that act. Now, under the first section of that act, a single isolated sale or act in aid thereof would be a violation of that section; but would such single isolated sale or act in aid thereof he a carrying on of the business of selling within the meaning of the revenue act of 1909 ? The charge in substance told the jury that a violation of the act of 1909 was the lesser offense, and that as a lesser offense it was. included in and covered by the greater offense created by the first section of the act of 1899. Or to put it in a different way, the charge in substance told the jury that the business was a lesser offense than one sale, or one act in aid thereof made in violation of the first section of the act of 1899.

Upon what reason can it be said that the business of selling intoxicating liquors is an offense of less degree than one sale or one act in aid thereof? We can see none. On the contrary, if one sale,'or one act in aid thereof, be an offense against the law, then surely a business made up pf repeated sales is not a less offense, or an offense lower in degree.

The punishment; for the violation of the first section of the act of 1899 is greater than that prescribed for the violation of the act of 1909; but this fact is not determinative of the question raised by the charge. That question must.be determined by our statutes. Section 7085 of Shannon's Code is: “On an indictment for a public offense admitting of different degrees, the defendant may be convicted of such offense, or any degree lower than that charged in form in such indictment.” Acts 1832, ch. 22; Acts 1851-52, ch. 36. Section 7195 of Shannon’s Code is: “Upon an indictment for any offense consisting of different degrees the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the offense, and the defendant may also be found guilty of any offense, the commission of which is necessarily included in that with which he is charged, whether it be a felony or a misdemeanor.” So under section 7085, above quoted, the question arising on the charge is whether the offense charged in the indictment, on which the defendant was being tried, was one which admitted of different degrees; that is to say, whether the character of the offense was such an act as could be divided into degrees of guilt lower in grade than the principal offense charged in the indictment.

Certainly a number of sales, or such acts and conduct as would constitute a business of the selling, of intoxi-eating liquors without license, would not Tbe lower degrees of the offense charged in the indictment; and so, under the above-quoted section 7195, upon the sáme reasoning, it cannot be said that the acts and conduct, which would constitute a carrying on of the business of selling intoxicating liquors in violation of the act of 1909, would either amount to an attempt to commit the offense charged in the indictment, or to an offense the commission of which is necessarily included in that charged in the indictment, within the meaning of section 7195. McCroskey v. State, 2 Cold., 180; Fanning v. State, 12 Lea, 651.

There was no proof of any specific sale, and the court so told the jury in the above excerpt from the charge. The defendant was convicted of having made a specific sale in violation of the act of 1899, when in fact there was no proof that he had made such sale. The conviction rests wholly upon the charge of the court that proof of the possession by the defendant of the United States revenue license for the sale of malt liquors is prima facie evidence of the violation by the defendant of the act of 1909, and that a violation of the act of 1909 is a lesser degree of offense, and is included in the charge in the indictment on which the defendant was tried.

We think the charge was clearly erroneous for the reasons above indicated, and'the judgment of the circuit court is reversed, and the cause remanded.  