Opinion
01-14-1926
STATE v. PANTOLOME.
Leonard G. Hagner, Deputy Atty. Gen., for the State. John J. Morris, Jr., of Wilmington, for defendant.
Barlome Pantolome was indicted for illegal possession of spirituous liquors. Verdict not guilty.
RICHARDS, J., sitting.
Leonard G. Hagner, Deputy Atty. Gen., for the State.
John J. Morris, Jr., of Wilmington, for defendant.
Indictment No. 30, January term, 1926.
The defendant was indicted for the illegal possession of spirituous liquor. The evidence produced by the state tended to show that he had in his possession on the eleventh day of December, 1925, a large quantity of grape wine, namely, approximately twelve 45-gallon barrels and two 150-gallon barrels of such wine. The defendant admitted that he had in his possession on the occasion in question about 450 gallons of grape wine. He contended, however, that he had made this wine in the fall of 1925 from grapes purchased by him from a store in Wilmington, and that such wine had been made solely for the consumption of himself and his family, consisting of ten persons, but admitted that he did not know whether the grapes used had been grown in the state of Delaware. Other witnesses produced on his behalf testified that some of the grapes used by him in the manufacture of wine were grown in the state of Delaware, but that some of them were grown in the state of California.
Hagner, Deputy Attorney General, requested the court, in charging the jury, to define "native fruits." In this connection he cited Commonwealth v. Petranich, 183 Mass. 217, 66 N. E. 807. He, also, requested the court to charge the jury that the burden was upon the defendant to bring himself within the exception in the statute. State v. Rosasco, 103 Or. 343, 205 P. 290.
Defendant's Prayers.
1. That the possession of wine, though it may contain more than one-half of one per cent. of alcohol by volume, is not prohibited by the laws of this state, if such wine was intended for domestic consumption and was made from native fruits. Chapter 10, par. 5, vol. 29, Laws of Delaware.
2. In order for the jury to find that the wine in question was made from native fruits, it is not necessary for them to be satisfied that all the grapes used by the defendant in the manufacture of such wine were actually grown within the geographical limits of the state of Delaware because the term "native fruits," as defined by the Oxford Dictionary, means "fruits belonging to a certain country; of indigenous origin, production or growth as opposed to what is foreign or exotic." Webster's New International Dictionary, also, defines the word "native" as applied to fruits to mean "fruits not imported or introduced from another country.
RICHARDS, J., after stating the contentions of both the state and the defendant, charged the jury, in part, as follows:
Section 1 of a statute of this state, known as the Loose Law, provides that the words "spirituous liquors" as used in said act shall include all vinous or spirituous liquors, wine, whisky, brandy or other intoxicating drinks containing so much as one-half of one per cent. of alcohol by volume.
Section 2 of the same act provides that it shall be unlawful for any person to have in his possession, at any one time, more than one quart of spirituous liquor.
Section 5 of the same act contains the provision that the act shall not be construed to prevent any one from manufacturing from native fruits for his own domestic consumption, wine or cider, or possessing the same.
The defendant does not deny that he had in his possession at least 450 gallons of wine and that he manufactured it himself.
The only questions for your consideration, therefore, are whether he manufactured saidwine from native fruits, and whether he had it in his possession for his own domestic consumption.
The words "native fruits," as used in the statute, mean fruits grown in the state of Delaware. The statute is in effect in the state of Delaware and nowhere else. Native fruits are native with reference to the place to which the statute relates. Commonwealth v. Petranich, 183 Mass. 217, 66 N. E. 807.
As stated before, the defendant contends that he has not violated the statute, by reason of the fact that he made wine from native fruits for his own domestic consumption, and that he possessed it for that purpose. This is the defense set up by the defendant, and it is the defendant's duty to prove such defense to your satisfaction. Wharton's Crim. Ev. § 128; State v. Rosasco, 103 Or. 343, 205 P. 290.
If you should be satisfied beyond a reasonable doubt that the defendant did have in his possession, on or about the date alleged in the indictment, more than one quart of spirituous liquor, and that said liquor was not manufactured from native fruits, or was not possessed by the defendant for his own domestic consumption, your verdict should be guilty.
But if you are not so satisfied, your verdict should be not guilty.
Verdict not guilty.
Note.—When an exception in a statute must be negatived in the indictment and, therefore, proved by the state, see State v. Witsil, 3 W. W. Harr. (33 Del.) —, 129 A. 862.