{ "id": 8658160, "name": "STATE v. B. W. BARKSDALE", "name_abbreviation": "State v. Barksdale", "decision_date": "1921-06-07", "docket_number": "", "first_page": "621", "last_page": "638", "citations": [ { "type": "official", "cite": "181 N.C. 621" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "253 U. S., 350", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 189381 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/253/0350-01" ] }, { "cite": "180 N. C., 744", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654888 ], "opinion_index": 0, "case_paths": [ "/nc/180/0744-01" ] }, { "cite": "134 N. C., 743", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274067 ], "opinion_index": 0, "case_paths": [ "/nc/134/0743-01" ] }, { "cite": "142 N. C., 700", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652804 ], "opinion_index": 0, "case_paths": [ "/nc/142/0700-01" ] }, { "cite": "171 N. C., 451", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270899 ], "opinion_index": 0, "case_paths": [ "/nc/171/0451-01" ] }, { "cite": "140 N. C., 322", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651969 ], "opinion_index": 0, "case_paths": [ "/nc/140/0322-01" ] }, { "cite": "169 N. C., 631", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660811 ], "opinion_index": 0, "case_paths": [ "/nc/169/0631-01" ] }, { "cite": "170 N. C., 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662340 ], "opinion_index": 0, "case_paths": [ "/nc/170/0725-01" ] }, { "cite": "253 U. S., 386", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": 2 }, { "cite": "180 N. C., 744", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654888 ], "opinion_index": 2, "case_paths": [ "/nc/180/0744-01" ] } ], "analysis": { "cardinality": 1427, "char_count": 50149, "ocr_confidence": 0.45, "pagerank": { "raw": 6.082289860750032e-07, "percentile": 0.9553867812370528 }, "sha256": "d64962ff34e2455869583f344bcb4d805e3c0fc787054b051c24e8c7f81cfc95", "simhash": "1:d7c6e66b30e094cf", "word_count": 8587 }, "last_updated": "2023-07-14T18:46:48.388810+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. B. W. BARKSDALE." ], "opinions": [ { "text": "Hoke, J\".,\nafter stating the case: The Legislature, at the special session of 1908, passed the general prohibition law against the manufacture and sale of intoxicating liquors, ratified by the voters of the State by a pronounced majority the following May, the principal features of which as pertinent to this inquiry now appear in chapter 66, Consolidated Statutes, designated as article 1. In section 3367 of said article the manufacture and sale of any spirituous, vinous, fermented, or malt liquors is prohibited, except wines, cider, etc., as therein specified. Section 3368, article 1, defines intoxicating liquors as follows: \u201cAll liquors or mixtures thereof by whatever name called that will produce intoxication within the meaning of this article, provided that certain specified medical preparations shall not be held or construed to be or come within the meaning of the definition.\u201d Section 3369, in transactions coming under the provisions of the article, makes the place of delivery the place of sale, and section 3370 makes it unlawful for any person, for himself or as agent or traveling salesman of any person, firm, or corporation, to solicit orders or proposals of purchase of intoxicating liquors by the jug, bottle, or otherwise, in this State. There being numerous prosecutions under this statute debated on the issue as to> whether a given article was intoxicating, the General Assembly in 1911 enacted a further statute, the principal parts of which appear in chapter 66, Consolidated Statutes, as article 2, and in section 3373 of this article it is made unlawful for any person, firm, or corporation to sell or dispose of for gain, \u201cnear-beer, beerine, or other spirituous, vinous, or malt liquors, or mixtures of any kind, and under whatsoever named called, that shall contain alcohol, cocaine, morphine, or other opium derivative except as hereinafter provided.\u201d\nIn a subsequent section under this article, 3375, it is provided that the same shall not extend to or include a long list of specified exceptions such as wines, ciders, etc., various medicinal preparations, and including \u201cthe sale of flavoring extracts or essences when sold as such.\u201d These two articles being parts of the same statute, and dealing with the same subject, are to be considered and interpreted as a whole and in such case it is the accepted principle of statutory construction that every part of the law shall be given effect if this can be done by any fair and reasonable intendment, and it is further and fully established that where a literal interpretation of the language of a statute will lead to absurd results, or contravene the manifest purpose of the Legislature, as otherwise expressed, the reason and purpose of the law shall control and the strict letter thereof shall be disregarded. S. v. Earnhardt, 170 N. C., 725-727; Abernethy v. Comrs., 169 N. C., 631; Fortune v. Comrs., 140 N. C., 322; Keith v. Lockhart, 171 N. C., 451; Black on Interpretation of Laws (2 ed.), pp. 23-66.\nWhile the exception withdrawing \u201cflavoring extracts when sold as such\u201d is in terms excepted from article 2 of the chapter, it having been proved, and without' contradiction, that these preparations cannot be properly made without at least 40 per cent alcohol, and so recognized as intoxicating, a quantity making the mixture \u201cabout as strong as the average whiskey,\u201d in the language of the witness, it is clear that in excepting these extracts from article 2, it was necessarily the evident intent and purpose of tbe Legislature to withdraw them from the effect of the prohibition law when they were in fact \u201cwhat they professed to be and were sold as such.\u201d It would not be readily supposed that the Legislature intended to withdraw these preparations of recognized value 'entirely from domestic use, and when they have expressly excepted flavoring extract from the effect and operation of a law forbidding the sale of \u201cany spirituous liquors, or mixtures of any kind, by whatsoever name known, containing alcohol,\u201d it would render this entire exception \u2022meaningless, and make the statute a delusion and a snare to entrap the 'honest dealer, if one acting in good faith under this exception could be indicted, convicted, and imprisoned under the provisions of article 1 of the same chapter. And this position and rule of interpretation, fortified and upheld by a uniform current of decisions here and in other jurisdictions, is not affected because of the suggestion, valid or invalid, and however vehemently urged, that it may afford a means of evading the prohibition law. Such considerations are for the Legislature, whose province it is to enact statutes and to alter and amend them s\u00f3 as to make their purpose more effective. It is ours to construe the laws and not to make them.\nThis, in our opinion, being the correct construction of the statute, when the State has offered evidence sufficient to satisfy the jury beyond a reasonable doubt that defendant is selling, or offering for sale, a liquor or mixture thereof, containing 40 or 45 per cent alcohol, or which is making men drunk, the' defendant should be convicted unless he satisfies the jury, not beyond a reasonable doubt, but satisfies them that what he sells, or is offering for sale, comes within the exception claimed by him, and it must be an extract approved by valid official sanction or recognized as such by the general trade. The burden is on him to so prove to the jury that the article he sells is in fact and in truth what it professed to be, a flavoring extract, and that he is offering it to be used or sold as such for flavoring purposes and not as a beverage. S. v. Connor, 142 N. C., 700; S. v. Goulden, 134 N. C., 743. And there being testimony, admitted on the part of defendant, tending to show that these preparations were flavoring extracts offered for sale as such in good faith, there was error in holding that on the entire evidence, if believed, and as a conclusion of law, defendant should be convicted, for on such testimony the issue should have been submitted to the jury under the principles as stated. In our opinion there was error, also, in excluding the formula offered, and the permit and approval of the prohibition commissioner thereon, and that the extracts were manufactured in accord with the formula, and likewise as to the standard for vanilla and other extracts, established by the Department of Agriculture. As to the permit, it lias been held by our highest Court that the Eighteenth Amendment to tbe United States Constitution, and tbe valid provisions of tbe Yolstead Act in furtherance of tbe same, are, in case of conflict, tbe controlling law on this subject. Both tbe one and tbe other, however, inhibit tbe manufacture, sale, and transportation of intoxicating liquors only for beverage purposes, and while no State can enact any statute or enforce any regulation in contravention of tbe declared purpose, there is nothing in either to inhibit a state from passing more stringent regulations in reference to the manufacture and sale of intoxicating liquors, and this permit, therefore, issued by the Federal prohibition officer, is not conclusive or necessarily a protection, S. v. Fore, 180 N. C., 744; Rhode Island v. Palmer, 253 U. S., 350, but both of these items of evidence are competent as tending to show good faith on the part of the defendant, and that these preparations are in fact what they profess to be, flavoring extracts.\nIt is urged in support of his Honor\u2019s ruling, as we understand the position, that the exception relied upon by defendant is now invalid because in conflict with the Eighteenth Amendment and the Federal statute passed in enforcement of the same, the Volstead Act. As heretofore stated, under Rhode Island v. Palmer, supra, and other like decisions, any and all state legislation, in contravention of the Eighteenth Amendment and the valid provisions of the Volstead Act, passed to enforce same are abrogated, and for conduct in violation of the criminal provisions of the Yolstead Act, a defendant can be indicted and convicted in the Federal courts notwithstanding that the provisions of the State law would not inculpate. But there is no part of the Volstead Act that provides for or permits an indictment in the State court, and we are well assured that though an exception may be in violation of the Federal law on the subject, a defendant may not be indicted and convicted in the State court for violation of a State statute which contains an exception exculpating him until our own Legislature has acted in the matter and passed a statute that condemns him. Our State police regulations must be established by our own Legislature. We have so held at the present term in S. v. Helms, ante, 566.\nAs a matter of fact, however, there is no necessary conflict between the State and Federal law on the subject, and as presented in the record. The Yolstead Act recognizes and provides for the sale of flavoring extracts, enacting in section 4, among other things, that the law shall not apply to flavoring extracts and syrups that are unfit for use as a beverage or for intoxicating beverage purposes, the same in effect and on the evidence as our own exception, \u201cflavoring extracts or essences when sold as such,\u201d the testimony on the part of defendant showing that the extracts sold or offered for sale in this instance, when properly made, were \u201cabout as fit for drinking purposes as shellac or shoe polish.\u201d And in any event onr statute, more stringent in tbis respect than the Volstead Act, contains an absolute prohibition of sale of extracts for beverage purposes having in them any alcohol whatever. . \u25a0\nIt is further urged for the State, and we understand it was on this that his Honor based his ruling, that defendant failed to bring his case under the exception, as claimed, for that the labels show it was only imitation extracts, but we have already referred to the evidence offered by defendant on this point that these words on the label did not at all mean that the articles offered were imitation extracts but they only had reference to the flavor they had endeavored and were intending to produce.\nHaving given this case most careful consideration, and reached the conclusion that it has not been tried in accordance with the law as it prevails in this jurisdiction, we must direct that there be a new trial of the issue, undisturbed by the dire and distressful calamities predicted as the result of such a course.\nMore important, even, than the prohibition law is the constitutional principle which guarantees to every citizen charged with crime an impartial and lawful trial by a jury of his peers.\nVenire de novo.", "type": "majority", "author": "Hoke, J\".," }, { "text": "Allen, J.,\nconcurring: I concur fully in the calm judicial opinion of Associate Justice IIolee, which is confined to a consideration of the legal questions raised by the appeal, without reference to newspaper reports and other extraneous matters, which can only excite the. passions and confuse the judgment, but since these have been introduced into the discussion it is possibly well to restate the exact question we have to decide.\nThe defendant is indicted under C. S., 3370, of the prohibition law for \u201csoliciting orders for intoxicating liquors,\u201d and his defense is that he was offering for sale flavoring extracts or essences, section 3375, of the same prohibition law providing that the prohibition against sale, manufacture, etc., of intoxicating liquors shall not be construed to forbid \u201cthe sale of flavoring extracts or essences when sold as such.\u201d\nIn the brief filed by the State and signed by the Attorney-General and Assistant Attorney-General, after quoting the two sections, 3370 and 3375, it is said, \u201cthe terms of the statute permits the sale of these extracts when sold as such.\u201d\nThis being true, the defendant cannot be convicted under our State law if he was selling extracts or essences as such, and not for beverage purposes.\nThe defendant testified: \u201cI was offering these extracts for flavoring purposes.\u201d .\nHe also offered evidence, which was excluded by the court, that the extracts were prepared in accordance with a formula approved by the National Formulary, except that they contained 10 per cent less of alcohol than was permitted by the National Government; also, that this formula was submitted to the National Prohibition Commissioner of New York, and that he issued permits for the manufacture and sale of the extracts.\nThere was also evidence that the extracts could not be used for beverage purposes, and were \u201cas undrinkable as shellac or shoe polish.\u201d\nThe judge in the court below not only excluded the evidence referred to, but charged the jury that if they believed the evidence of the State to find the defendant guilty, and this Court is of opinion, and so decides, that the defendant was entitled to the benefit of the evidence excluded, and that the whole ease ought to have been submitted to the jury upon the question as to whether the extracts were offered for sale as flavoring extracts or for beverage purposes.\nThe witness Braswell, it is true, stated that a man was arrested because he was drunk from drinking extracts, but he added to his statement, \u201cNo; that was not any that Mr. Barksdale sold.\u201d\nThe whole of the answer of Dr. Smith to the question asked him by the court was as follows: \u201cYes; 15 per cent or 16 per cent will preserve any vegetable product, but it is necessary to use more to get them into solution. Our vanilla extract that is in evidence here, that cannot be made properly and preserved with less than 40 per cent. It might be with 2 or 2% per cent less, hut approximately 40 per cent. We put 40 per cent because it is necessary to hold the vanilla in solution \u2014 to go to make up the flavor it requires that per cent to hold them in solution.\u201d\nIf the State law as it stands is defective and imperfect, it is for the-Legislature to correct, it. We have no such power.", "type": "concurrence", "author": "Allen, J.," }, { "text": "Clark, C. J.,\ndissenting: The defendant was indicted and convicted for \u201csoliciting orders for intoxicating liquors contrary to section 3370, Consolidated Statutes.\u201d The following is the evidence:\nJ. S. Braswell, chief of police at Hamlet, testified that the defendant, representing Garrett & Company, was in Hamlet soliciting sales for his goods. That he found the defendant at Terry\u2019s Grocery Store, a retail grocery, with these samples (pointing to them), and asked him if he was not Garrett\u2019s man. The defendant said he was. He then told the defendant that he was violating the prohibition law, and he would have to take him to his office. The witness said, \u201cWe discussed the sale of this stuff right freely, and the amount of alcohol it contained, and the defendant told me that this peach and banana extract contained about 40 per cent alcohol; that he delivered it to the merchants in pint packages. I said it would be a good driiik and would make a man drunk. He said that was tbe merchant\u2019s lookout, and be bad nothing to do witb that. I tested it, poured some of the contents of tbe \u201cpeach extract\u201d on tbe paper, struck a match to it, and it caught fire and burned up. This other stuff, \u201cVirginia Dare extract,\u201d contains 40 per cent alcohol. It has a very delicious smell; they drink it freely. Tes; I have seen some drunk on that. They had some of these bottles along and were drunk and in jail on it, and paid fines for drinking it. It is intoxicating. This other bottle is a sample of Garrett\u2019s imitation grape extract, labeled \u201cGarrett & Company, imitation grape extract, alcohol, 40 per cent\u201d; this bottle is \u201cGarrett\u2019s imitation of apricot brandy\u201d; this is \u201cGarrett\u2019s imitation of rum extract\u201d; .that other is \u201cGarrett & Company\u2019s imitation of apple extract.\u201d This is \u201cpeach extract.\u201d That tastes good \u2014 is a right good drink. That next is \u201cGarrett\u2019s imitation of banana extract.\u201d I have seen them drunk on this \u201cVirginia Dare Vanilla.\u201d \u201cThe last man that was drunk on it was a barber at Hamlet.\u201d The State introduced tbe bottles of extracts testified to above.\nTbe chief of police then went on to say, \u201cTbe defendant said he was there for the purpose of taking orders and selling it. He bad orders for these extracts for sale at other places, but this (Terry\u2019s) was the only place I saw him. He showed me bis order book; it was full. I was about to take bis order book from him, but he said be had been taking orders, and I let him take it hack. Yes; he was offering these as flavoring extracts. As I stated, he and Mr. Terry were discussing it. Mr. Terry said they Were discussing whether it was legal or not for him to sell that stuff. When I stated that I had seen some one drunk off that vanilla extract, that was before I saw Mr. Barksdale. When that man was arrested and told me he was drunk on it, I went to the merchant that sold it and told him not to sell any more.\u201d\nTbe defendant testified that, \u201cThis was not my first visit in Hamlet. On this occasion I was trying to sell my extracts. I went to four or five stores and every store I went in they told me (answer objected to). I did not make any sales. I was offering these extracts for flavoring purposes. I had my samples full \u2014 from three of a pint on up to a pint. . . . Yes; I was soliciting his order.\u201d\nDr. B. H. Smith, witness for the defendant, testified that be lives in Brooklyn, N. Y., and is in the employ of Garrett & Company. He further testified that he had been with Garrett & Company about two years. \u201cThey have on hand in Brooklyn some wine \u2014 a large quantity, comparatively speaking. The company does extract the alcohol from this wine, but I do not have charge of that.\u201d In corroboration of this, it was published in New York papers 29 March, 1921, and broadcast over the country by the Associated Press, that the Garrett Company had a quarter of a million dollars worth, of liquor seized in Brooklyn on 28 March by the Government authorities. The witness further stated, pointing to a bottle, \u201cThat is a half pint. I do not know whether a man would have to drink all that to get drunk. \"Whiskey is 45 per cent alcohol. This is about as strong as the average whiskey. I do not know that a man could drink half of that bottle and be drunk. I am not an expert on that proposition.\u201d He further said, speaking of Garrett & Company, \u201cWe use the alcohol that has been taken from the wine. As to the brandy, it is an imitation extract of brandy. ' . . . Garrett & Company sent me down here to testify from Brooklyn. We are doing business in every State in the Union. . . . We do not want to be cut off from our sales down here. We would go to considerable expense to keep it running. Yes; Garrett & Company are deeply interested in the outcome of this case for the effect on their business in this county, at any rate. I had no instructions to do everything-in the world to have this man acquitted. I had no instructions of any sort. Mr. Travis wired me to come down and bring the permit. He is attorney for the company. I did not confer with the manager. Mr. Garrett is head of the business. I did not confer with him. Mr. Travis had conferred with him a week or 10 days ago, and he understood what I was coming for.\u201d Dr. Smith further testified, in answer to a question by the court, \u201cCan extracts be preserved with less than 40 per cent alcohol ?\u201d replied, \u201cYes; 15 per cent or 16 per cent will preserve any vegetable product.\u201d\nThere was other evidence, but this is the substance of the testimony directly affecting the matter before the court.\nThe court charged the jury: \u201cThe defendant is indicted for soliciting orders for intoxicating liquors. He has pleaded not guilty, and the law raises a presumption of innocence in his favor, which presumption continues throughout the trial until you convict him, if you do convict him. The burden of proof is upon the State, in order to convict him, to prove every essential ingredient, under the law, beyond a reasonable doubt. The law would be doing a vain thing to have the presumption of innocence in favor of the defendant and then to cast the burden of proof upon him to prove his innocence. The burden of proof required of the State is: 'Beyond a reasonable doubt\u2019; that is, a doubt harder to define than the words imply. It means to fully satisfy you beyond a moral certainty as to the truth of the evidence you have heard introduced here before you. The court charges you that the only thing you have to consider in this case is the truth of the State\u2019s evidence, and by reason of the defendant\u2019s plea he denies the truth of the State\u2019s evidence, and says by his plea, which the law authorizes him to make, that all the State has offered is not true. So, gentlemen, if you have no reasonable doubt as to the truth of the State\u2019s evidence offered in this case, and have no doubt, that is, no reasonable doubt, as to the truth of what the witnesses have sworn to for the State, and you believe their testimony beyond a reasonable doubt, then the court directs you to return a verdict of guilty. In addition to what the court has already charged you, it will add that if you believe all the testimony for the State, as it has instructed you, and including that of the defendant, that you will return a verdict of guilty.\u201d The jury found the defendant guilty.\nThe statute under which the defendant was indicted, Laws 1908, ch. 118, sec. 1, now C. S., 3370, reads as follows: \u201cUnlawful to solicit orders for liquor. It is unlawful for any person, for himself or as agent or traveling salesman, for any person, firm, or corporation, to solicit orders or proposals of purchase of intoxicating liquors by the jug or bottle or otherwise in the State of North Carolina\u201d; and Laws 1908, ch. 71, sec. 2, now C. S., 3368, defines intoxicating liquors as follows: \u201cAll liquors, or mixtures thereof by whatever name called, that will produce intoxication shall be construed and held to be intoxicating liquors within the meaning of this article.\u201d \u201cThis article\u201d is article 1. There is a proviso thereto which excepts only medicinal preparations manufactured according to prescribed formula. The defendant admitted that he solicited orders for his preparations, and that they might produce intoxication. The chief of police testified that he \u201chad seen men drunk on this preparation,\u201d and Dr. Smith, witness for the defendant, testified that \u201cwhiskey is about 45 per cent alcohol. This is about as strong as the average whishey,\u201d and added that he did not know personally that a man could drink half of that half-pint bottle and be drunk. He further testified that the alcohol in these preparations had been taken from wine.\nThe charge of the judge to the jurors that \u201cIf they believed the evidence, beyond a reasonable doubt, the defendant was guilty,\u201d was correct under the statute, O. S., 3368, which provides that \u201cliquor which will intoxicate is intoxicating liquor.\u201d Besides, this is a self-evident fact. The jury could not possibly have returned any other verdict, and the judge could not have charged correctly in any other way than he did. The only suggestion to the contrary is that in another article (2) of that chapter, in regard to \u201cthe sale of near-beer and other specified drinks,\u201d sec. 3375 provides: \u201cThis article (2) shall not be construed to forbid\u201d the sale of certain articles named, principally medicinal, or \u201cthe sale of flavoring extracts or essences when sold as such,\u201d the sale of medical preparations, etc., and it is contended by the defendant that the words \u201cas such\u201d in article 2, to which alone this section, 3375, refers, shall be transported into section 3868, which applied to all the sections in article 1, and therefore the sale of flavoring extracts, it is argued, is valid notwithstanding they will make men drunk and contain admittedly 40 per cent alcohol, which every man knows will intoxicate.\nAn English statesman once declared in Parliament that be could \u201cdrive a coach and six through any act of Parliament,\u201d but if the words \u201cas such\u201d have such a powerful effect that they authorize the sale of any liquor that will intoxicate notwithstanding the provisions in the act of 1908, which was ratified by the people of this State on a referendum, this will vitiate the Eighteenth Amendment, which was put into the United States Constitution by the authority of the 105 millions of people of the whole Union, and the Yolstead Act, enacted in pursuance thereof. It is not a mere \u201ccoach and six,\u201d but T. N. T., or that more powerful preparation recently invented, for it has blown up and destroyed absolutely the practical enforcement of the prohibition of liquor by the State Government, and has destroyed the Eighteenth Amendment so far as this State is concerned. It has left not a fragment behind.\nIt is not reasonable to suppose that the Legislature intended to give such a tremendous import to the words \u201cas such,\u201d especially as it limited its meaning to article 2, and it does not apply at all to article 1, under which the defendant was indicted. Why not follow the limitation imposed by the Legislature ?\nBut if the Legislature did pass C. S., 3315, knowingly with intent thereby to destroy efficient prohibition legislation in the State, then the words \u201cas such\u201d have since been stricken out of the statute by the Eighteenth Amendment, as to which the U. S. Supreme Court held, Rhode Island v. Palmer, 253 U. S., 386, that it strikes down any and every provision in a state constitution or statute which authorizes, or sanctions, what the Eighteenth Amendment forbids, saying: \u201cIt is operative throughout the territorial limits of the United States, binds all legislative bodies, courts, public officials, and individuals within those limits and of its own force invalidates every legislative act \u2014 whether by Congress, by state legislatures, or by territorial assemblies,\u201d and even if the words \u201cas such\u201d had been intended to repeal the provisions of the act of 1908 which made all liquor that would intoxicate, intoxicating liquor, which any one was indictable for offering to sell, then the Eighteenth Amendment has now stricken \u201cas such\u201d out of the statute.\nAs to the Nineteenth Amendment, we know that of its own force and vigor it struck out of every state constitution the word \u201cmale,\u201d and that women are entitled to vote and hold office in North Carolina notwithstanding the word \u201cmale\u201d has not been taken out of our Constitution by any act of its people.\nThe usual method of selling flavoring extracts is in very small bottles, 1 ounce or 2 ounces, and it is bought by the ladies of the household. The testimony here is that this article carrying 40 per cent alcohol, and, in the language of the defendant\u2019s witness, \u201cas strong as the average whiskey,\" was sold in pint bottles and even in quarts and gallon containers, and in the nature of things it was not sold \u201cas sucb,\u201d even if those words had any effect. The defendant\u2019s witness, Dr. Smith, could not say that a half-pint bottle of this so-called extract did not intoxicate.\nIf, however, the words \u201cas such\u201d have authorized the sale of \u201cgrape extract,\u201d \u201capricot brandy,\u201d \u201crum extract,\u201d Virginia Dare vanilla extract,\u201d containing 40 per cent alcohol, and their \u201capple extract\u201d and the like, then every saloon keeper may well resurrect himself and his place of business. All that is necessary to be done is to stretch a banner across the front of his resurrected saloon and advertise, \u201cBrandy and other extracts, all carrying 40 per cent alcohol or more, called flavoring extracts,\u201d and add that' the sale is guaranteed from interference by the words \u201cas such,\u201d and sell in pint bottles or any other quantity, as desired. As this 40 per cent alcoholic mixture makes men drunk in Hamlet, it will surely do so in Raleigh, and men will be found lying drunk about the streets of Raleigh as they were in Hamlet, and the same results will happen throughout the State.\nIt will be useless for the courts to try men for violation of the law in .selling whiskey which may be 45 per cent alcohol or less when without risk they can buy it as \u201cflavoring extracts\u201d if sold as such, containing 40 per cent, or why not 50 per cent, and be immune.\nIt will no longer be necessary for the bootlegger to take his customer up a dark alley or make his sale in the back room of some brothel or other place of evil repute when he can boldly reopen his saloon on Fayetteville street in Raleigh, or on the main street of any city in the State, and sell brandies and other decoctions all carrying 40 per cent alcohol, and be protected from liability by selling them as \u201cflavoring extracts.\u201d\nDr. Smith, witness for the defendant, testified that he was in the employ of Garrett & Company, and that they had a large quantity of wines on hand from which they derived the alcohol of which he put 40 per cent into these extracts. It was useless for them to allow the seizure of their quarter million dollars of their wines by the Government when they could have been shipped off to North Carolina and sold at will by their traveling agents, as in this case, by virtue of these magical words \u201cas such\u201d in a legislative statute.\nRecently three outlaws, carrying a truck load of intoxicating liquors, shot down in the streets of Greensboro, McCuiston, one of the best policemen of that city, leaving his wife and several children to mourn his loss. That act was entirely useless even for the purposes of the outlaws, since all they had to do was to bring over the truck from Danville loaded down with \u201cbrandy extract,\u201d \u201capricot brandy,\u201d and other brands carrying 40 per cent alcohol, \u201cequal,\u201d in the language of the defendant\u2019s witness, \u201cto the average whiskey in strength,\u201d and place a placard on the truck that they were protected bec\u00e1use they were selling flavoring extracts \u201cas such,\u201d for neither McCuiston nor any other policeman would have dared interfere if this was lawful.\nThis is not the question whether the defendant was selling his 40 per cent alcohol in good faith as a flavoring extract. No doubt it was an efficient flavoring extract, and the defendant did not deny that it would make a man drunk, but said that was \u201ca matter for the merchant to whom he sold it.\u201d It is not a question of the good faith of the defendant, but whether he was violating that law which the people of this Union and of this State have found necessary to enact for the protection of the public. Our prohibition statute, which was ratified by the people at the ballot box on a referendum, and which is therefore in effect of the dignity of a constitutional amendment, provides: \u201cAll liquors or mixtures thereof by whatever name called that will produce intoxication shall be construed and held to be intoxicating liquors within the medning of this article.\" That is now C. S., 3368; and 3370, in the same article, provides that it is unlawful for the defendant or any one else \u201cto solicit orders or proposals of purchase of intoxicating liquors by the jug or bottle or otherwise within the State of North Carolina.\u201d The defendant, by his own admission and by the testimony of his witness, Dr. Smith, has proven that he did this very thing. It is not a question of his good faith in believing that he was selling a good flavoring extract. But it was also intoxicating liquor upon his own evidence, and he was violating the laws of this State and of the United States. '\nThe basis of government in every free country is the popular will, formulated into constitutions and statutes, and the welfare of the people depends upon the orderly, faithful execution of those laws unless repealed by the same power that created them.\nSo clear and overwhelming is the public opinion as to the corruption, the poverty, the crime, and other evils produced by the use of intoxicating liquor that in spite of the enormous power and resistance of the aggregated wealth invested in great breweries and distilleries of all kinds, and the incalculable profits of the innumerable saloons engaged in the retail business, an amendment to the United States Constitution was passed by two-thirds of both Houses of Congress and ratified by 45 state legislatures out of the 48, and this is now the supreme law of the land, which forbids the manufacture, sale, and transportation of intoxicating liquors, and of 'all traffic therein. This had been previously enacted in this State in 1908, and was ratified by the people by over 40,000 majority. In spite of the overwhelming necessity which in the opinion of the public required this prohibition, the counsel for the defendant contends that the words \u201cas such\u201d inserted in another section, in another chapter, whose application is restricted by its terms to that chapter, permits Him to sell a mixture, by 21 different names, which, the defendant\u2019s witness, Hr. Smith, testified \u201cis as strong as the average whiskey,\u201d simply by selling it, not as whiskey \u2014 openly and frankly \u2014 but by calling it \u201cflavoring extracts.\u201d\nUpon the testimony of the defendant\u2019s witnesses alone, if believed, he was guilty, and the charge of Judge Ray was correct. The real trouble which in the language of the defendant\u2019s witness made \u201cGarrett & Company deeply interested in the outcome of this case for the effect on their business,\u201d is that the judge pujfc their man on the roads instead of imposing a fine which this millionaire corporation would have promptly paid.\nIt is well known that for years firms and corporations outside the State have shipped into this State, and through their agents have sold large quantities of intoxicating liquor in violation of law and as long as the courts imposed only fines, usually small ones, the custom has been for these outside violators of the liquor law to pay the fees of counsel, and pay all fines and cost laid upon their agents, which aggregate very much less than the license fees would have come to under the former system of open saloons. It is not suggested that Garrett & Company have done this, though they are defending this case.\nThe German Ambassador at Buenos Aires recommended his government to sink neutral ships, spurlos versenlct, that is, \u201cleaving no trace,\u201d and as long as that could be done with impunity, the German undersea boats followed this advice, but when the Allies invented the \u201cdepth bomb\u201d and U. S. put in the North Sea barrage and began to destroy these outlaws of the sea so that the sailors therein did not return to 'Wilhelms-haven or Kiel, the intended crews of other submarines mutinied and the war came to an end. As long as the agents of these outside companies can violate the law and sell their 40 per cent alcohol or other \u201cmixtures, by whatever name called, that will intoxicate,\u201d and shall only have to pay occasional fines, this warfare against the will of the people, as expressed in the Eighteenth Amendment and in our own statutes, will go on, but when the courts, as in this case, begin to impose road sentences from which those companies cannot relieve their agents, they will find it difficult to get agents to face sentences which must be paid by the agents in person. Therefore, this strenuous contention has been made by the eminent and able counsel of this great corporation that the words \u201cas such\u201d used in article 2 of chapter 66, and which on the face is restricted to the sections in that article, shall apply to all the sections in article 1, and render null the provision therein that \u201call liquors or mixtures thereof, by whatever name called, that will produce intoxication shall be construed and held to be intoxicating liquors within the meaning of this article.\u201d C. S., 3368. It is an astounding proposition advanced by the eminent counsel for the defendant that the words \u201cas such\u201d in another article have repealed and rendered powerless this provision in this article which is the original act adopted by the referendum to the people in 1908. If so, it has also repealed the Eighteenth Amendment to the United States Constitution, and so far as that amendment is concerned, North Carolina will have practically seceded from the Union.\nLiquor-selling companies will continue to pay cheerfully the fines and costs imposed upon their agents in the few cases in which they happen to be convicted, and thus \u201ckeep their business going,\u201d but the example of this practical judge from the mountains in sentencing this agent to work out 6 months of a road sentence will embarrass them, hence this strenuous defense. The imposition of a few fines upon their \u201cagents,\u201d and the sentencing to the roads of a few \u201cpoor whites and niggers,\u201d will not concern these nonresident establishments, but when road sentences are put upon pleasant-faced, nicely-dressed agents of nonresident corpora-, tions who are making vast sums by violation of both State and Federal laws in selling alcoholic mixtures it will cut down the profits of their business.\nThe plain, common-sense meaning of the statutes, construed together, is that flavoring extracts can be sold when bona fide they are such, provided, that \u201csuch mixture, by whatever named called,\u201d will not intoxicate. This construction repeals neither section, and is consonant to the settled rules of construction of statutes. The defendant and his witness admitted this mixture had 40 per cent alcohol, and did not deny that it would intoxicate. The chief of police testified, and he is not contradicted, that men did get drunk on the defendant\u2019s \u201cvanilla extract,\u201d and were put in jail. That is the whole case. 'Why should Congress or the courts worry about 2.75 per cent beer if it is lawful to sell 40 per cent extracts ?\nThe act of 1908 (ratified on a referendum) forbade making, selling, etc., intoxicating liquor, and provided, \u201cany mixture, by whatever name called, that will intoxicate is intoxicating liquor within the meaning of this act.\u201d\nThe act of 1911 in regard to \u201cnear beer,\u201d enacted to further restrict and not to enlarge such traffic, provided, that that act \u201cshall not forbid the sale of flavoring extracts, sold as such.\u201d\nIf the major purpose of this prohibition legislation is to permit the sale of flavoring extracts, then the two provisions, read together, mean, \u201cthe sale of intoxicating liquor is illegal, but this shall not forbid the sale of flavoring extracts though they will intoxicate.\u201d\nIf the major purpose of the Eighteenth Amendment and of Federal and State legislation is to prohibit the sale of intoxicating liquor, then the meaning is that flavoring extracts may be sold, as such, provided they do not intoxicate.\u201d\n\"Which is the chief purpose, and which is subordinate? Upon one or the other of these two standpoints the construction must be made.\nUpon the evidence of the defendant\u2019s witness, taken alone, and upon the clear, unmistakable language of the statute, the defendant is guilty. The object of the defendant is doubtless to get a new trial, so that before another judge he may beg off with a fine, which his employers will cheerfully pay, for in the language of their own witness and employee, Dr. Smith, \u201cThey will go to considerable expense to keep the business going.\u201d Of course.\nThe defendant and his witness testified that he was offering 21 different mixtures \u201cas flavoring extracts,\u201d bearing 40 per cent alcohol, and different names. If these can be sold, where is the limit ? Suppose, in fact, mixtures carrying 50 per cent or 60 per cent alcohol are offered as \u201cflavoring extracts.\u201d Dr. Smith said that these extracts were \u201cas strong as the average whiskey.\u201d Any other manufacturer can sell flavoring extracts, bearing different names and possibly a higher per cent of alcohol, and \"as such\u201d shops can spring up all over North Carolina in place of the old \u201cbar rooms,\u201d \u201csaloons,\u201d and \u201ccorner groceries.\u201d\nThe Eighteenth Amendment is a constitutional provision, and if there were any conflict between it and our constitutional provision for trial by jury, the Eighteenth Amendment is of the higher dignity. But there is no conflict between them. The Eighteenth Amendment forbids the manufacture, sale, or transportation of intoxicating liquor. When, therefore, the defendant and his witnesses testified that this mixture was 40 per cent alcohol \u2014 and as. strong as the average whiskey \u2014 and the State\u2019s witness testified that it had made several men drunk who were put in jail for it, the judge could do no less than tell the jury if they believed the evidence for the State and the defense to find the defendant guilty. S. v. Fore (Allen, J., for a unanimous Court), 180 N. C., 744; S. v. Reed, ante, 508; S. v. Pearson (top of page), ante, 589.", "type": "dissent", "author": "Clark, C. J.," } ], "attorneys": [ "Attorney-General Manning and Assistant Attorney-General Nash for the State.", "Travis' & Travis and Gibbons & LeGrand for defendant." ], "corrections": "", "head_matter": "STATE v. B. W. BARKSDALE.\n(Filed 7 June, 1921.)\n1. Statutes\u2014 Interpretations\u2014 Intent\u2014 Spirituous Liquors \u2014 Intoxicating Liquors.\nThe various parts of a statute on the same subject are construed as a whole, to give each and every part effect, if this can be done by any fair and reasonable intendment; and when a literal interpretation of the language will lead to absurd results, or contravene the manifest purpose of the Legislature, as otherwise expressed, the reason and purpose of the law will control.\n2. Spirituous Liquors \u2014 Intoxicating Liquors \u2014 Statutes\u2014Interpretation\u2014 Amendments \u2014 Exceptions\u2014Flavoring Extracts.\nOur statute, C. S., ch. 66, dealing with the subject of prohibition, provides by art. 2, sec. 3373, an amendment theretofore enacted in 1911, that it is unlawful to sell or dispose of intoxicating liquors for gain, \u201cexcept as hereinafter provided,\u201d followed in sec. 3375, with the proviso, excepting flavoring extracts when sold as such\u201d: Held, by express terms of the statute, the amendment of 1911, placed in art. 2 of O. S., eh. 66, \u201cflavoring extracts when sold as such\u201d were excluded from the operation of the general law; and any other interpretation would leave the language of the exception altogether without meaning and contravene the manifest purpose of the Legislature.\n3. Same \u2014 Defense\u2014Evidence\u2014Burden of Proof.\nWhere the State satisfies the jury beyond a reasonable doubt that the defendant has violated C. S., 3369, by selling or offering for sale intoxi-eating liquors, or those containing alcohol sufficient to make men drunk, the defendant so indicted must be convicted under the provisions of our prohibition law, C. S., ch. 66, unless he has satisfied the jury with his evidence that the liquids he has sold or offered for sale were in fact and truth flavoring extracts and sold or offered for sale as such.\n4. Same \u2014 Instructions\u2014Appeal and Error.\nWhere the evidence offered by the State is sufficient to convict the defendant under the provisions of O. S., 3369, of selling or offering for sale an intoxicating liquid sufficient to make men drunk, and there is evidence on the defendant\u2019s behalf that the liquid was in truth and fact a flavoring extract coming within the exception of C. S., 3373, 3375, and only sold or offered for sale as such, the question of the guilt or innocence of the defendant depends upon the verdict of the jury upon the conflicting evidence, and it is error for the trial judge to direct a verdict of guilty upon the issue, as a matter of law.\n5. Spirituous Liquor \u2014 Intoxicating Liquor \u2014 Statutes\u2014Unlawful Sales\u2014 Flavoring Extracts \u2014 Evidence\u2014Permits\u2014Formulas.\nWhere there is sufficient evidence on the part of the State to show that the defendant was guilty of offering for sale or selling intoxicating liquor prohibited by O. S., 3369, and also on defendant\u2019s behalf that the liquid was a flavoring extract coming within the exception of C. S., 3373, 3375, and only sold or offered for sale as such, it is competent for the defendant to introduce in evidence the permit of the Federal prohibition officer allowing the manufacture of the formula for the extracts the defendant was selling, also the standard as to the use of alcohol in flavoring extracts established by the Agricultural Department, as tending to show his good faith and that the liquid so offered by him was what it purported to be, a flavoring extract, and not sold for a beverage.\n