Can One Drink and Be Moral?

...A statute of the state provided for the revocation of the license of any physician who was convicted of an act involving moral turpitude...

...One of the justices adopted as the basis of his opinion the reasoning in the dissenting opinion in the District of Columbia case just considered...

...That is of course a violation of law—a crime malum prohibitum, not malum in se...

...The Supreme Court of Arkansas held that the act charged did not involve moral turpitude...

...The answer to the question appeared less difficult to the Supreme Court of North Dakota because, as it pointed out, for more than forty years and since the birth of the state, the traffic in intoxicating liquors and their manufacture and sale for beverage purposes had been prohibited by the state constitution...

...A defendant had pleaded guilty to a charge of engaging in the liquor traffic...

...Hence, said the court, for practical purposes some standard must be adopted for the determination of the question when it presents itself in a concrete form...

...He had on two prior occasions been convicted on felony charges...

...The act there complained of was the transportation of intoxicating liquor in violation of the national prohibition act...

...The question presented to the court therefore was whether the offense of which the defendant had been last convicted involved moral turpitude...

...The standard adopted by the court was "public sentiment—the expression of the public conscience...

...When not so engaged, he stands on the same plane as other citizens, no higher, no lower, no different in legal rights and obligations...

...Opinions may differ as to the wisdom of the law, but there can be no such difference as to the duty of the citizen...

...but it adopted exactly the opposite course...

...Its reasoning in the case in which the question was passed upon, was as follows: If one who gives aid to the enemy of his country in time of war is guilty of moral turpitude, how may we distinguish the man who in time of peace, by his deliberate course, helps to destroy the constitution...

...It was there held that those words refer to something inherently immoral regardless of the fact that the act in question is punishable by law...

...A statute of the state provides that if a person commits a felony after having been convicted of two prior felonies, his punishment shall be increased...

...An appeal was taken...

...It is a matter of general knowledge, however, that intoxicating liquors are made in many of the homes of the country for the use of the family and guests, and not for sale...

...The question recently arose in the courts of North Dakota...

...For example, an assault and battery may involve moral turpitude on the part of the assailant in one case and not in another...

...The object of law is the submission of the individual to the will of organized society, while the tendency of morality is to subject the individual to the dictates of his own conscience...

...The matter is of considerable practical importance, arising as it does in various situations...

...The circumstances attendant upon the commission of the offense usually furnish the best guide...

...Thus, a conviction of an offense may entail a greater punishment if the offense be one involving moral turpitude or, as the idea is also phrased, if it is regarded as malum per se, or evil in itself, and not merely malum prohibitum, or forbidden...

...It is evident that the courts are far from unanimous in their conclusions on the subject...

...The same conclusion was reached by the Court of Appeals of the District of Columbia, but with a strong dissenting opinion...

...It is indeed true that many do not see or feel that the violation of the liquor law is undermining the most vital of all our governmental institutions, the constitution of the United States...

...He concluded that there had been a technical violation of his oath by the respondent, but that under the circumstances to be shown a reprimand by the court would have been adequate punishment, and on that ground concurred in the judgment of reversal...

...The former class comprises those acts which are immoral or wrong in themselves', such as murder, rape, arson, burglary, and larceny, breach of the peace, forgery, and the like while the latter class comprises those acts to which, in the absence of statute, no moral turpitude attaches, and which are crimes only because they have been prohibited by statute...

...The court pointed out that the meaning of the phrase has varied in the past and that acts which at one time were regarded as merely mala prohibita were today regarded as mala per se, or inherently evil...

...The court admitted that this standard might change and that the majority might become the minority, but said: So long as it is established, measurement must be made according to its terms...

...Referring to the argument that attorneys take an oath to support the constitution, he pointed out that that fact did not impose any greater obligation upon them in the matter involved than it did upon any other citizen: His profession necessarily gives him a better understanding of the organic law than others may have, but his oath is an official oath and it binds him only in his official action...

...that they are "merely mala prohibita," as there is no inherent immorality in such acts and their illegality lies only in the fact of their being positively prohibited...

...As the Supreme Court of that state has said: The doing of the act itself and not its prohibition by statute fixes the moral turpitude...

...Under the circumstances, two of the judges, who constituted the majority of the court, concluded that the defendant's act involved moral turpitude...

...It cannot be measured by the nature or character of the offense, unless, of course, it be an offense, inherently criminal, the very commission of which implies a base and depraved nature...

...A similar question was presented to one of our federal courts sitting in Nebraska...

...Courts will not look at violations of that law with easy disregard of the baseness of the act, the unchecked effect of which is fraught with so serious a public evil, and is so destructive of the people's regard for the law of the land...

...The trial court answered the question in the affirmative and ordered the attorney suspended from practice for a period of three years...

...As he pointed out: The Eighteenth Amendment prohibits the manufacture of intoxicating liquor, as well as the sale...

...The particular question there involved was whether an attorney-at-law who pleaded guilty to making beer in his home which he was in the ha'bit of serving to his guests, was subject to disbarment for the commission of an act involving moral turpitude...

...However, there is a provision in the law that the additional penalty shall not be imposed in the case of offenses which do not involve moral turpitude...

...This is probably inevitable in view of the character of the legislation which gives rise to the question under consideration...

...The defendant had taken an oath to support and defend the constitution when he entered the police service as a policeman...

...The Supreme Court of Connecticut refused to follow the holding of the Alabama court...

...So we must say that those things which are discountenanced and regarded as evil and accordingly forbidden by society are immoral and that the doing of them contrary to the sentiment of society thus expressed involves moral turpitude, and this regardless of the punishment imposed for their doing...

...The Supreme Court of Alabama has likewise been unable to reach the conclusion that the illegal manufacture of intoxicating liquors involves moral turpitude...

...Possibly the words of one of the great jurists of modern times, the late Sir Paul Vinogradoff, though not expressed with reference to the problem under discussion, may tend to clarify the subject: Law is clearly distinguishable from morality...

...The fact that the defendant was a retired police officer may have been the deciding factor in the mind of the court, since, as the court explained: There is no hard and fast rule as to what constitutes moral turpitude...

...The Circuit Court of Appeals concluded that the action taken by the trial court was erroneous and vacated the order made...

...As yet, they have come to no unanimous conclusion on the subject...

...He referred to the time-honored distinction made by the law profession in classifying criminal offenses, in the following language: Crimes have been divided, according to their nature, into crimes mala in se and crimes mala prohibita...

...The question was answered by the Supreme Court of that state in the affirmative...

...Judge Kenyon wrote a concurring opinion...

...The remaining member of the court could not agree with this conclusion...

...Judge Kenyon called attention to the decision of the Supreme Court of Arkansas in a case in which a physician had been charged with unlawfully selling intoxicating liquors...

...It pointed out that according to a well-known treatise on the law of intoxicating liquors, offenses against the liquor laws, such as the illegal sale of intoxicants, are statutory crimes and not punishable at common law...

...This same justice, in his dissenting opinion, also commented on the fact that the act of which the defendant had been convicted was but a misdemeanor, and concluded as follows: Had Congress intended a violation of the Volstead Act to be within the class of crimes involving moral turpitude, it would have affixed a penalty commensurate with such intent...