CHAPTER 29

(Senate Bill No. 328-Mr. Shinn)

AN ACT to amend and re-enact sections four and thirty-seven of chapter thirty-two-a of Barnes' code, of one thousand nine hundred and eighteen as amended by chapter one hundred and fitteen of the acts of one thousand nine hundred and twenty-one, and section fourteen of chapter thirty-two-a of the said code as amended by chapter one hundred and eight of the acts of one thousand nine hundred and nineteen, and section thirty-two of chapter thiruy-two-a of the said code, all relating to prohibition of the manufacture, sale, storage, furnishing and carriage of liquors, and the confiscation of property used for the unlawful transportation of such liquors; and to further amend said chapter thirty-two-a of the code by enacting as additional thereto three sections to be numbered sections thirty-eight, thirty-nine and forty, relating to possession of weapons in connection with violations of the prohibition laws, manufacture and sale of stills, and impersonation of prohibition officers, and providing penalties in relation thereto. [Passed April 25, 1923. In effect ninety days from passage. Approved by the Governor May 1, 19231

SEC.

4. What things act does not prohibit; affidavit required of purchaser of wine for sacramental purposes; sales to certain persons prohibited; permits and fees for same; form of indictments against druggist; penalty. Unlawful to own, operate, maintain or have in possession "moonshine" still"; same defined; a penalty; abetting another: penalty; form of in

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dictment; possession of moonshine liquor a misdemeanor; penalty; violator immune from prosecution, when; making of other concoctions prohibited; penalty; form of indictment; other sections to apply as far as applicable; justice authorized to accept bond from person held felony ; moonshine stills, etc. to be destroyed; acts in conflict repealed.

for

Be it enacted by the Legislature of West Virginia:

That sections four and thirty-seven of chapter thirty-two-a of Barnes' code of one thousand nine hundred and eighteen as amended by chapter one hundred and fifteen of the acts of one thousand nine hundred and twenty-one, and section fourteen of chapter thirty-two-a of the said code as amended by chapter one hundred and eight of the acts of one thousand nine hundred and nineteen, and section thirty-two of chapter thirty-two-a of the code, all relating to prohibition of the manufacture, sale, storage, furnishing and carriage of liquors, and the confiscation of property used for the unlawful transportation of such liquors; and to further amend said chapter thirty-two-a of the code by enacting as

additional thereto three sections to be numbered sections thirtyeight, thirty-nine and forty, relating to intoxication in public, possession of weapons in connection with violations of the prohibition laws, manufacture and sale of stills, and impersonation of prohibition officers, be amended, re-enacted and added so as to read as follows:

Section 4. The provisions of this act shall not be con

2 strued to prevent any one from manufacturing (other 3 than by "moonshine still") from fruit grown exclusively in 3-a this state, non-intoxicating wine for his own domestic con4 sumption; or to prevent the manufacture from fruit grown 5 exclusively within this state of vinegar and non-intoxi6 cating cider for use or sale; or to prevent the manufac7 ture and sale of pure grain alcohol, at wholesale to drug8 gists, hospitals, sanitariums, laboratories and manufacturers 9 for medicinal, pharmaceutical, scientific and mechanical pur10 poses, or of wine for sacramental purposes by religious bodies. 11 or to prevent the sale and keeping and storing for sale by drug12 gists of wine for sacramental purposes, by religious bodies, or 13 any United States pharmacopoeia or national formulary 14 preparation in conformity with the West Virginia pharmacy 15 law, or any preparation which is exempted by the provisions of 16 the national pure food law, and the sale of which does not re17 quire the payment of a United States liquor dealer's tax; or to 18 prevent the sale by druggists, through pharmacists of pure 19 grain alcohol for medicinal, scientific, pharmaceutical and me20 chanical purposes; or to prevent the use of such alcohol by 21 physicians, dentists and veterinarians in the practice of their 22 profession; or to prevent the medication and sale of pure grain 23 alcohol according to formulae and under regulations of the na24 tional prohibition act; or to prevent the purchase and use in the 25 manufacture of medicinal preparations and compounds by 26 wholesale druggists only of sherry wine in quantities not exceed27 ing twenty-five wine gallons during any period of ninety days; 28 provided, that no one shall manufacture, sell, keep for sale, pur29 chase or transport any liquors, as defined in section one of this 30 act and as herein excepted, without first obtaining a permit from 31 the commissioner so to do. Forms of application and permits 32 shall be prepared by the commissioner and a fee for each permit 33 issued shall be collected by him as follows: (a) all manufac34 turers of liquors and wholesale dealers therein shall pay a fee of 35 fifty dollars for each permit; (b) all purchasers in wholesale

36 quantities of ethyl alcohol in any form, whether pure, medi37 cated, or denatured for use as herein provided, shall pay a fee 38 of ten dollars for each permit; (c) all purchasers in wholesale 39 quantities of liquors as defined in section one, for sale at retail, 40 except duly licensed druggists, shall pay a fee of two dollars for 41 each permit; (d) all persons except duly licensed druggists 42 registering stills and given permits to use the same for lawful 43 purposes shall pay a fee of five dollars for each permit. No 44 fee shall be required for a permit to obtain wine for sacra44-a mental or religious rites.

45 Permits shall be issued for the calendar year and shall expire 46 on the thirty-first day of December next following the issuance 47 thereof. All moneys received by the commissioner under this 48 section shall belong to the state and shall be by him immediately 49 paid into the state treasury; and, provided, further, that such 50 liquors are manufactured, sold, kept for sale, transported and 51 used under permits issued by the federal prohibition commis52 sioner and in accordance with regulations issued in pursuance 53 of the "national prohibition act."

54 It shall be lawful for a druggist to sell wine for sacramental 55 purposes of religious bodies, to any person, not a minor, and 56 who is not of intemperate habits, or addicted to the use of nar57 cotic drugs, who shall, at the time and place of such sale, make 58 an affidavit in writing signed by himself before such druggist, 59 or a registered pharmacist at the time and place in the employ 60 of such druggist, stating the quantity and the time and place 61 and fully for what purpose and by whom such wine is to be 62 used; that affiant is not of intemperate habits or addicted to 63 the use of any narcotic drug; and that such wine is not to be 64 used as a beverage, or for any purpose other than that stated 65 in such affidavit. Such affidavit shall be filed and preserved 66 by such druggist and be subject to inspection at all times by 67 any state, county or municipal officer, and a record thereof 68 made by such druggist in the record book mentioned in this 69 section, showing the date of the affidavit, by whom made, the 70 quantity of such wine and when, where, for what purpose, and 71 by whom to be used. Only one sale shall be made upon such 72 affidavit, and only in the county where the same is made, and 73 no greater quantity than is therein specified. For the purpose 74 of this act, any druggist or registered pharmacist making such 75 sale shall have authority to administer such oath.

76 If any druggist, owner of a drug store, registered pharmacist, 77 clerk or employe shall upon such affidavit, or otherwise, know78 ingly sell or give any such wine to any person who is of in79 temperate habits or addicted to the use of any narcotic drug, or 80 knowingly sell or give the same to any one to be used for any 81 purpose other than that named in said affidavit, or who shall 82 sell or give any wine without such affidavit, he shall be deemed 83 guilty of a misdemeanor and punished by a fine of not less than 84 one hundred nor more than five hundred dollars and confined 85 in the county jail not less than thirty days nor more than six 86 months. In any prosecution against a druggist, owner of a 87 drug store, registered pharmacist, clerk or employe, for selling 88 or giving liquor contrary to law, if a sale or gift be proven, it 89 shall be presumed that the same was unlawful in the absence 90 of satisfactory proof to the contrary and the presentation of 91 such affidavit by the defendant at the time of the trial for such 92 sale or gift, shall be sufficient to rebut the presumption arising 93 from the proof of such sale or gift. Provided, the jury shall 94 believe, from all the evidence in the case that such sale or gift 95 was made in good faith under the belief that such affidavit and 96 statements therein were true; and, provided, further, that such 97 druggist, owner of a drug store, registered pharmacist, clerk or 98 employe shall have complied with all other provisions of this 99 act relating to the sale or gift.

100 An indictment against any druggist, registered pharmacist, 101 clerk or employe, for any offense committed under the provis102 ions of this section, shall be sufficient, if in the form and effect 103 following:

104 State of West Virginia,

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In the circuit court of said county:

107 The grand jurors in and for the body of the said county of 108 ., upon their oaths do present that 109 A. B., within one year next prior to the filing of this indictment, 110 in the said county of did unlawfully, 111 sell, give, offer, expose, keep and store for sale and gift, liquors, 112 against the peace and dignity of the state.

Sec. 14. All houses, boat houses, buildings, club rooms, and 2 places of every description, including drug stores, where 3 liquors are manufactured, stored, sold or vended, given away, 4 or furnished in any way contrary to law (including houses in 5 which clubs, orders, or associations, shall barter, give away,

6 distribute, or dispense liquors to their members by any means 7 or device whatever, as provided in section six of this act), 8 shall be held, taken and deemed common and public nuisances. 9 All boats, cars, automobiles, wagons, water and air craft, beasts 10 of burden, or vehicles of any kind in connection with which 11 liquors are had, kept or possessed for the purpose of trans12 portation, or carrying, in any way, contrary to law shall be 13 held, taken and deemed common and public nuisances. Boats, 14 cars, (including railroad and traction passenger cars operating 15 in this state), automobiles, wagons, water and air craft, 16 beasts of burden, or vehicles of any kind, shall be taken and 17 deemed as places within the meaning of this act, and may be 18 proceeded against under the provisions of section seventeen. 19 Any person who shall maintain, or shall aid or abet, or know20 ingly be associated with others in maintaining such common 21 and public nuisances, shall be guilty of a misdemeanor, and 22 upon conviction thereof, shall be punished by a fine of not less 23 than one hundred nor more than five hundred dollars, and by 24 imprisonment in the county jail not less than sixty days nor 25 more than six months for each offense, and judgment shall be 26 given that such house, building, or any room therein, or other 27 place, be abated or closed up as a place for the sale or keeping 28 of such liquors contrary to law, as the court may determine. 29 All automobiles, cars, boats, (other than railway cars, street 30 cars and steamboats), wagons, water and aircraft, beasts of 31 burden, or vehicles of any kind that are used to bring or carry 32 liquors into the state, or from one place to another within the 33 state, or that are known or found to contain liquors while in, 34 on, or operating upon any street, alley, road, highway, or water 35 course or stored in any garage or other storage place, or in any 36 other place, whether such liquors are in possession of passen37 gers or occupants of any such vehicle or otherwise, shall be sub38 ject to seizure, forfeiture, and confiscation by the state. Any 39 state, county, district, or municipal officer whose duty it is to 40 enforce the provisions of chapter thirty-two-a of Barnes' code 41 of West Virginia, shall seize and take into his custody any 42 automobile, car, boat (other than railway cars, street cars and 43 steamboats), wagon, water and aircraft, beast of burden, or 44 other vehicle that is being used as a container or conveyance of 45 liquor, whether said liquors are upon the persons and in the 46 actual custody of the passengers or occupants of any such ve47 hicle of conveyance or otherwise. Upon the seizure of any prop