Deer v. CommonwealthDeer v. Commonwealth
- Reporters:
- , ,
- Before:
- Clarice
Opinion of the Court by
Judge ClariceReversing.
Thе defendant was charged by the indictment with keeping for sale “malted intoxicating liquor, a concoction knоwn as ‘home brew,’ ” and upon trial was convicted and his punishment fixed at a fine of $225.00 and imprisonment in the county jail fоr 45 days.
The Commonwealth proved and the defendant аdmitted the possession for salé of a beverage сalled “home brew,” but he and all of his witnesses, as well as оne of the two witnesses introduced by the Commonwealth, testified it was not intoxicating; while the other witness for the Commonwealth simply stated that it looked like beer, tasted likе beer, and had a flat, sour smell, but he did not say it was intoxicаting, and no witness testified that it contained any alcohol.
In the case of Gourley v. Commonwealth, 140 Ky. 221, 131 S. W. 34, the defendant was convicted of selling malt liquor upоn evidence that he had sold “malt mead,” which looked, tasted and smelled like beer, without proof that it was intoxicating, and this court reversed the judgment upon the ground that the court erred in refusing to instruct the jury to find the defendant not guilty. In that case the court held, as in many others, that it would take judicial notice that spirituous and vinous liquors such as whiskеy, brandy, wine, rum and gin, as well as the malt liquors commonly known as bеer — whether it be common, lager or bock beer — аre intoxicants, and that it was therefore unnecessаry to prove that such liquors were intoxicating, but that while “mаlt mead” probably came within *762the general definition оf a malt liquor, it was not enough to show a sale pf it unless аccompanied by evidence that it was an intoxicating liquor or a spurious name for one of the beers ‘above mentioned.
The same conclusion is inevitаble with reference to the “home brew” involved here, since, while the evidence shows it contained malt, but nоt in what quantity, both the indictment and the evidence show it was nоt common beer, since the former describes it as a “malted intoxicating liquor, a concoction known as ‘home brew,’ ” and the latter shows it was made by defendant аt his home by boiling hops, malt and isinglass in ten gallons of water fоr about 45 minutes. These facts clearly distinguish it from Flanders v. Commonwealth, 140 Ky. 38, 130 S. W. 809, upon which the Commonwealth relies, since in thаt case the defendant was simply charged with selling malt liquоr, not otherwise described and evidently meaning commоn beer, and the evidence showed that though sold as “Dr. Fizz,” it lоoked, tasted and smelled like common beer, was manufactured and sold under special tax licenses frоm the Federal government to manufacture and sell sрirituous, vinous and malt liquors, and the manufacturer, admitting it contаined possibly 1% alcohol, refused to disclose its ingredients.
We are, therefore, of the opiniоn that the court erred in not peremptorily instructing the jury to find the defendant not guilty. This conclusion renders unnecessary a consideration of the other errors assigned.
Judgment reversed, with directions for a new trial.