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Ex Parte Zwissig

December 31, 1919

IN THE MATTER OF THE APPLICATION OF JOHN ZWISSIG FOR A WRIT OF HABEAS CORPUS


Application of John Zwissig for a writ of habeas corpus. Writ dismissed, and petitioner ordered remanded to the custody of the sheriff.

Lee J. Davis, Walter M. Kennedy, and J. M. Frame, for Petitioner.

Leonard B. Fowler, Attorney-General, and Robert Richards, Deputy Attorney-General (A. E. Cheney, Amicus Curiae), for Respondent.

By the Court, Coleman, C. J.:

This is an original proceeding in habeas corpus. A complaint was filed with the justice of the peace of Reno township, charging that the petitioner did “wilfully and

[42 Nev. 360, Page 362]

unlawfully have in his possession for personal use and otherwise intoxicating liquor, to wit, whisky, on a public street within the city of Reno, county of Washoe, State of Nevada, to wit, Commercial Row.”

The section of the prohibition act under which the prosecution was instituted reads:

“Sec. 7. It shall be unlawful for any person to keep or have for personal use or otherwise, or to use, or permit another to have, keep or use, intoxicating liquors at any restaurant, store, office building, club, place where soft drinks are sold (except a drug store may have an sell alcohol and wine as provided by sections four and twenty-four), fruit stand, news stand, room, or place where bowling alleys, billiard or pool tables are maintained, livery stable, public building, park, road, street or alley. * * *”

Upon arraignment before the justice of the peace, petitioner entered a plea of guilty, upon which plea it was adjudged that he pay a fine of $100 and serve sixty days in jail, pursuant to which he was committed to the custody of the sheriff of Washoe County. It is from this custody he seeks to be discharged.

Upon the oral argument it was insisted by counsel for petitioner that the purpose of the legislature in providing that it should be unlawful to keep intoxicating liquors at any restaurant, store, office building, club, etc., was that unless the places mentioned were put under the ban it would be easy to evade the law, but that no such reason could have influenced the legislature in providing that it should be unlawful for any person to keep or have intoxicating liquors in his possession upon a street for personal use, for the reason that keeping or having liquor for personal use, upon a street, negatives the idea that it is to be used as a means of evading the act and that the act is senseless in providing that it should be unlawful for a person to keep or have intoxicating liquors “for personal use or otherwise” at any street, since, as it is contended, the act does not prohibit the keeping of liquors for personal use in the home, as

[42 Nev. 360, Page 363]

what one may lawfully keep in the home he may lawfully carry there upon a public street.

We do not deem it necessary to determine whether or not it is unlawful for a person to keep intoxicating liquors in his home; but we do not wish to be understood as conceding the correctness of the broad contention that, under all circumstances, a person may keep intoxicating liquors in his home for his personal use.

We are in full accord with the theory of counsel as to the reason which prompted the prohibition of the keeping of intoxicating liquors at any restaurant, store, office building, club, etc. It was clearly for the purpose of preventing an evasion of the spirit of the prohibition act; but we think, too, that that portion of section 7 which makes it unlawful to “have for personal use or otherwise * * * intoxicating liquors * * * at any street” was incorporated in the act for the very same reason which prompted ...


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