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West Virginia Supreme Court of Appeals - April 7, 1914.
1. An instruction to the jury "that, in order to make any fluid or liquid an intoxicating drink, it must be capable of producing intoxication, in the usual sense and common acceptation of the term intoxication; that is, it must have in it a sufficient amount of alcohol to produce intoxication when consumed in sufficient quantities," properly propounds the law in such cases, and it was not error to reject other instructions propounding a different rule of liability.
[See note on this question beginning on page 1137.]
2. Proof of sales of "Bevo" and "Temperance Malt" without a state license therefor, if proved to be drinks of like nature to spirituous liquors, wines, porter, ale, and beer, to be intoxicating, in the common acceptation of that word,-may be given in evidence under an indictment charging defendant, in the language of the statute, with the unlawful sale, offer, and exposure for sale of spirituous liquors, wines, porter, ale and beer, and drinks of like nature; and a count
Headnotes by MILLER, P.
(74 W. Va. 72, 81 S. E. 569.)
ERROR to the Circuit Court for Lewis County to review judgments convicting defendants of violating the Intoxicating Liquor Law. Affirmed. The facts are stated in the opinion of the court.
Messrs. Brannon & Stathers, for plaintiffs in error:
To make sale of a drink not named in statute unlawful, indictment should aver that it will produce intoxication.
Bishop, Statutory Crimes, § 220; Woollen & T. Intoxicating Liquors, § 78; State v. Durr, 69 W. Va. 252, 46 L.R.A. (N.S.) 764, 71 S. E. 767.
Intoxicating quality of drink sold being the test, jury should have been so instructed.
"Drunkenness" is the state of being drunk or overpowered by intoxicants.
14 Cyc. 1091; 4 Words & Phrases, 3734; Kenney v. Rhinelander, 28 App. Div. 246, 50 N. Y. Supp. 1088; Black, Intoxicating Liquors, § 423; 2 Sackett, Instructions to Juries, p. 2045, § 3198; Youngs v. Youngs, 130 Ill. 230, 6 L.R.A. 548, 17 Am. St. Rep. 313, 22 N. E. 806; Halstead v. Horton, 38 W. Va. 727, 18 S. E. 953.
Messrs. A. A. Lilly, Attorney General, John B. Morrison and J. E. Brown, Assistant Attorneys General, and Charles P. Swint, for the State:
Under the count, which alleges generally a sale of spirituous liquors, wine, porter, ale, beer, etc., all the evidence introduced was admissible.
State v. Good, 56 W. Va. 215, 49 S. E. 121; State v. Gillispie, 63 W. Va. 152, 59 S. E. 957; State v. Cool, 66 W. Va. 86, 66 S. E. 740; State v. Durr, 69 W. Va. 251, 46 L.R.A.(N.S.) 764, 71 S. E. 767; State v. Oliver, 26 W. Va. 427, 53 Am. Rep. 79.
The indictment, in alleging a sale of a drink of like nature to spirituous liquors, follows the language of the statute.
United States v. Mills, 7 Pet. 138, 8 L. ed. 636; State v. Paddock, 24 Vt. 315; State v. Bierce, 27 Conn. 319.
It is not necessary, in the trial of an indictment under the statute, for the court in an instruction to define what constitutes intoxication. It is enough to charge that the evidence must prove intoxication.
Woollen & T. Intoxicating Liquors, § 1086; Shorb v. Webber, 118 Ill. 126, 58 N. E. 949; Black, Intoxicating Liquors, § 423; State v. Kelley, 47 Vt.
tains two counts, and are alike, except that the second count in the Burnside Case, in addition to charging the unlawful sale, offer, and exposure for sale of certain malt drinks commonly called "Bevo," adds, "and Temperance Malt," being "drinks of a like kind and nature to spirituous liquors, wines, porter, ale, and beer." The first counts charge that defendants "without having obtained a state license therefor, as required by law, did unlawfully sell, offer, and expose for sale, spirituous liquors, wines, porter, ale, and beer, and drinks of a like nature."
We will consider only such of the errors assigned as are argued and relied on here, treating the others as abandoned.
The demurrers to the indictments and each count thereof were overruled. The first counts are concededly good; but it is said the second counts are bad for failure to allege, in addition to what is alleged, that "Bevo" and "Temperance Malt" are in fact drinks which will produce intoxication. We need not bother about this question. Our cases hold that evidence of the sale, offer, or exposure to sale of any mixture or liquids which will produce intoxication, is admissible under an indictment charging, as the first count in each case does, the unlawful sale, offer, and exposure for sale of spiritu- liquor-what isous liquors, wines, special porter, ale, beer, and drinks of a like nature. State v. Good, 56 W. Va. 215, 49 S. E. 121; State v. Gillispie, 63 W. Va. 152, 59 S. E. 957.
True, Judge Brannon, in State v. Durr, 69 W. Va. 251, 46 L.R.A. (N.S) 764, 71 S. E. 767, arguendo, quotes Woollen & Thornton on Intoxicating Liquors, § 78, to the effect that if the liquor be not judi
Miller, P., delivered the opinion of cially known as a prohibited liquor, the court:
The indictment in each case con
then it must be alleged that it is an intoxicating liquor, which would be
true, perhaps, under our law, if the indictment alleged a sale of a liquor, mixture, or liquid not so judicially known as a prohibited liquor. But Judge Brannon evidently did not have the question of pleading before him in that case, and did not mean to imply that proof of the intoxicating character of the liquor sold would not be admissible under an indictment charging, as the first counts in these indictments do, a sale of spirituous liquors contrary to law. It was not his intention to overrule State v. Good and State v. Gillispie, supra, in which he had so recently concurred, holding to the contrary.
The ground of error most strongly urged is the refusal of the court, by several instructions proposed by defendants, to define "intoxication" as used in § 1, chapter 32, Code 1906, providing that "all mixtures, preparations or liquids which will produce intoxication, whether they are patented or not, shall be deemed spirituous liquors within the meaning of this section." Lexicographers, text-writers, and judicial decisions are appealed to for definition. It is apparent that the only question which could be fairly presented to the jury under the indictments, and under the statute, was whether the liquor sold would produce intoxication in the ordinary and common acceptation of the word, when drunk in sufficient quantities. This question, we think, was fully and fairly presented to the jury on
the trial, particu-definition. larly by defendants' instructions given by the court, in the language, or effect, following: "The court instructs the jury that in order to make any fluid or liquid an intoxicating drink, it must be capable of producing intoxication in the usual sense and common acceptation of the term intoxication; that is, it must have in it a sufficient amount of alcohol to produce intoxication when consumed in sufficient quantities." We think this instruction sufficiently covered the case. Woollen & T. Intoxicating Liquors, § 1086; Shorb v. Webber,
188, Ill. 126, 58 N. E. 949; Buck v. Maddock, 167 Ill. 219, 47 N. E. 208. It was not a question before the jury as to what a man's condition had to be before he could be said to be intoxicated, varying often according to the circumstances and conditions under which he might be placed. The sole question before the jury on the trial was whether the liquor charged to have been unlawfully sold would, as stated in the instructions, produce intoxication. We see no error, therefore, in the instructions, or modifications of the instructions, as given on the trial
On the question whether "Bevo" or "Temperance Malt," admitted to have been sold by defendants, would produce intoxication as defined by the instructions, the evidence was very conflicting. According to some of the witnesses, they contained from 1.31 to 2.05 per cent by weight of alcohol, while in ordinary beer the percentage ranges from 3 to 4 per cent. Some of the witnesses said the human stomach could not contain enough of "Bevo" or "Temperance Malt" to produce intoxication; others, that it could; some, speaking from experience in the use of it, thought that it would not produce intoxication. Witnesses for the defendants testified that these drinks were made of the same material, and in the same way, as ordinary beer, except that they contained less alcohol, and only enough to keep them fresh a reasonable time, and not in sufficient quantities to intoxicate. On this kind of conflicting evidence the Appeal-finding jury found against on intoxicating defendants, and we cannot, on familiar principles, reverse their finding.
The judgments below will, therefore, be affirmed.
The test of the intoxicating character of liquor is the subject of the annotation beginning at page 1137, post. Specifically, as to actual capacity to intoxicate, see page 1141, of that note.
(13 Okla. Crim. Rep. 604, 166 Pac. 77.)
T. J. ESTES, Plff. in Err.,
STATE OF OKLAHOMA.
Oklahoma Criminal Court of Appeal - July 14, 1917.
(13 Okla. Crim. Rep. 604, 166 Pac. 77.)
1. "Intoxicating liquor," as this phrase is used in the prohibitory liquor statutes of this state, is an alcoholic liquor, and in order to come under the ban of the law such liquor must either contain more than of 1 per cent of alcohol, or a sufficient quantity of it, in a liquor or compound capable of being used as a beverage, to intoxicate a human being.
[See note on this question beginning on page 1137.]
Evidence sufficiency sale of in
establish the fact that such liquor is intoxicating, in addition to other necessary facts; otherwise, a judgment of conviction cannot stand.
[See 15 R. C. L. 376, 396.]
ERROR to the County Court for Bryan County (Rappolee, J.) to review a judgment convicting defendant of selling intoxicating liquor in violation of law. Reversed.
The facts are stated in the opinion of the court.
Messrs. Utterback & MacDonald, for plaintiff in error:
To sustain the conviction, evidence showing that the compound was an "intoxicating liquor" was necessary.
Markinson v. State, 2 Okla. Crim. Rep. 323, 101 Pac. 353; Benson v. State, 10 Okla. Crim. Rep. 16, 133 Pac. 271; Bowes v. State, 7 Okla. Crim. Rep. 316, 126 Pac. 580; Gresham v. State, 9 Okla. Crim. Rep. 661, 132 Pac. 1122; Ex parte Hunnicutt, 7 Okla. Crim. Rep. 213, 123 Pac. 179; Tracy v. State, 9 Okla. Crim. Rep. 532, 132 Pac. 692; Lynn v. State, 5 Okla. Crim. Rep. 115, 113 Pac. 989; McHugh v. Territory, 17 Okla. 2, 86 Pac. 433; Bilton v. Territory, 1 Okla. Crim. Rep. 566, 99 Pac. 163.
The court erred in overruling the motion of the defendant, which was filed at the close of the evidence on the part of the state, for an instructed verdict.
Benson v. State, 10 Okla. Crim. Rep. 16, 133 Pac. 271; Bowes v. State, 7 Okla. Crim. Rep. 316, 126 Pac. 580; Gresham v. State, 9 Okla. Crim. Rep. 661, 132 Pac. 1122; Ex parte Hunnicutt, 7 Okla. Crim. Rep. 213, 123 Pac. 179; Tracy v. State, 9 Okla. Crim. Rep. 532, 132 Pac. 692.
Mr. R. McMillan, Assistant Attorney General, for the State.
Armstrong J., delivered the opinion of the court:
The plaintiff in error, T. J. Estes, was convicted in the county court of Bryan county on a charge of selling intoxicating liquor, and appeals to this court for a reversal of the judgment.
The information charged the plaintiff in error with the sale of a certain liquor or compound known as "Vina Vita" to one Dave Le Flore, and that the liquor or compound was capable of being used as a beverage, and contained more than of 1 per cent of alcohol, measured by volume.
An amended information was filed which charged the sale of 5 quarts of intoxicating liquor or compound commonly known as Vina Vita, to Dave Le Flore.
It will be noted that in the former information the charge was based upon the liquor being capable of use
as a beverage, and that it contained more than of 1 per cent of alcohol. In the latter, the information simply charges the sale of intoxicating liquor.
The testimony offered by the state was from one witness, Dave Le Flore, the party to whom the sale was made. He testified that he lived 3 miles southeast of Bennington, in Bryan county; that he has known T. J. Estes for eight or nine years; that in December, 1913, he bought some patent medicine from him, known as Vina Vita; that three bottles were purchased by him, and two bottles by another party for him; that he drank two and a half bottles of the five; that they were all labeled alike; that he did not drink anything else that day, and that these two and a half bottles made him dizzy; made him crazy; that he had been drunk a good many times; that he did not know how long he stayed in town after drinking the contents of the bottles; that the town marshal told him he had better go home; that he was twenty-five years old, and did not know how many times he had been drunk: that he had been drunk sometimes every two or three weeks, and sometimes not so often, and sometimes a little more often; that he had not been drinking any whisky upon the date in question, nor upon the night before. Bill Madell and Bill Purcell drank some of the liquor contained in the bottles. Witness denied having any whisky, but admitted that he telephoned Madell he had whisky, but says that he called the concoction purchased from defendant whisky; that he was not drinking nor drunk when he bought these bottles; that this Vina Vita made him sick, and that he vomited after he got home; that he could not describe the feeling and sickness.
At the close of this testimony a demurrer to the evidence was interposed, and the defendant requested the court to advise the jury to return a verdict of not guilty. The demurrer was overruled, and the
request denied, whereupon the defendant introduced Bill Madell, who testified that he knew Dave Le Flore and was with him several times during the day he purchased the Vina Vita from the Estes drug store; that Bill Purcell was also with him; that Dave Le Flore was drunk that morning; came in drunk from his home; that he telephoned him the night before that he would bring some whisky, but did not bring it; that the next morning after the sale is alleged to have been made he saw the prosecuting witness, and he had about a half quart of whisky, and was drinking it before he purchased the Vina Vita. Witness testified that he had drunk Vina Vita, and that it would not make him drunk, but that it would make him sick if he drank enough of it; that he could not drink very much of it.
John Smith testified on behalf of the defendant that he knew the prosecuting witness, Dave Le Flore, and was with him on the morning that the sale is alleged to have been made, and that he was drinking before he got to town.
Bill Purcell, who was introduced in rebuttal by the state, testified that he drank some of the Vina Vita in question, and in response to the question, "What effect, if any, did it have on you?" he answered, "Sick, and dizzy about the head."
A number of assignments of error are urged in the brief. A discussion of one, however, will dispose of this controversy. That is based upon the proposition that the state has failed to make a case sufficient to warrant a conviction.
It will be remembered that the amended information charged the defendant with the sale of intoxiicating liquor or compound. In order to sustain the information, the words, "or compound," will be treated as surplusage. The information, therefore, charges the sole of intoxicating liquor, and the proof shows that the same was a compound, which is also a liquor, commonly kept in drug stores over the