Whitpield, O. J.,
delivered the opinion of the court.
The indictment in this case charged the unlawful sale of intoxicating liquors. On the trial Peterson, the expert, testified, to three facts: Hirst, that the liquor in question, called “Pabst’s mead,” was an alcoholic liquor, containing four and six-tenths per cent, of alcohol to each bottle; second, that it was a malt liquor; and, third, that two bottles of it, if drunk, would intoxicate any average man. Thesie facts, if believed by the jury, warranted appellant’s conviction on the testimony beyond any reasonable doubt.
The only contention which has any merit here arises upon the instructions. The first instruction for the state is in these words: “The court instructs the jury that it is not for them to say whether the liquid sold was intoxicating, provided they believe from the evidence beyond every reasonable doubt that the liquid sold on the 11th day of January, 1909, was a malt or alcoholic liquor; and if they so find that such liquor so sold was a malt or alcoholic liquor they should find the defendant guilty.” This the court gave. The defendant was refused the following charge No. 2: “The court instructs the jury, for the defendant, that unless the city proves beyond every reasonable doubt that the liquor in question, when drunk to excess, will produce in*152toxication, they will acquit the defendant.” The first charge given for the state, on the testimony in this case, is directly approved by the case of Reyfelt v. State, 73 Miss. 416, 18 South. 925. The court there said: “The statute, for a violation of which the appellant was convicted, makes it unlawful to sell, inter alia, any ‘vinous or alcoholic’ liquor. The defendant sold home-made wine, made from the grape and from blackberries, which he and his witness swore would not intoxicate. He asked the court to instruct the jury to acquit, if it believed from the evidence the wine would not produce intoxication. This the court declined to do; but charged the jury to convict if the sale of wine was proved. This action of the court was correct. The legislature, believing in chemistry, and that the process of fermentation of the juice of the grape will produce alcohol, has seen fit to prohibit the sale of such product; and, regardless of the opinion of the witnesses that this prohibited article would not intoxicate, the sale was unlawful, for the legislature prohibited such sales because it thought that alcoholic wines would, in some instances, intoxicate.” In other words, this court held in that case that, wherever the proof showed the liquor was one of the liquors designated as not to be sold' by the statute, this ended the inquiry. In the case so much relied upon by counsel for appellant, Marks v. State (Ala.) 48 So. 864" court="Ala." date_filed="1909-02-18" href="https://app.midpage.ai/document/marks-v-state-7363977?utm_source=webapp" opinion_id="7363977">48 South. 864, it is expressly said: “When a prohibition statute names, designates, or enumerates the kinds, classes, or species of beverages against which its provisions are directed, then there is no room for further inquiry into the scope of such statute.”
Our statute provides, that, “if any person shall sell, etc., any vinous, alcoholic malt intoxicating or spirituous liquors, or intoxicating bitters, or other drinks which if drunk to excess will produce intoxication, shall be punished,” etc. Section 1746, Code 1906, names certain liquors which the legislature has expressly forbidden to be sold, and then adds the second clause, “or other drinks which if drunk to excess will produce intoxication.” It is argued that this last clause qualifies all the preced*153ing clauses naming the particular liquors that shall not h'e sold. •On that point the supreme court of Alabama, in the Maries ■case, supra, said: “While we agree in part with counsel for appellant, w¿ cannot concur with them in the contention (so forcefully and ably insisted upon) to the effect that the clause, ‘which if drunk to excess will produce intoxication,’ qualifies ■and relates to each and all of the liquors or beverages which precede it — that is, to alcoholic, spirituous, vinous, or malt drinks. We are inclined to the opinion that this phrase qualifies or refers only to the clause, ‘or other liquors or beverages by whatsoever name called,’ which immediately precedes it, and which two phrases, taken together, constitute one of the six classes of liquor and beverage the sale of which is prohibited. We are led to this conclusion, not alone by the composition and ■grammatical construction of this section of the act, but also by reference to the history of such legislation in this and other states, and the judicial construction put upon the terms ‘spirituous,’ ‘vinous,’ ‘malt,’ and ‘intoxicating’ liquors and beverages by this and other courts. These terms each had a well-defined and accepted judicial construction by the courts, when used in such statutes; and it does not appear that there was any intention to change that well-accepted judicial construction. They were severally treated as being well known and defined; but the phrase, ‘or other liquors or beverages by whatsoever name called,’ is clearly shown not to refer to every well known or defined class, but is intended to include any and all other ^classes or kinds, not embraced in the foregoing five classes named, ‘which if drunk to excess will produce intoxication.’ ” The Jteyfeli case expressly held that, wherever the proof shows the sale of any of the liquors expressly prohibited from being sold, that was the end of the matter, and the party was guilty. The proof here does show expressly that this was a malt liquor, and also an alcoholic liquor. It went further even, and showed that two bottles of it, if drunk, would make any average person drunk.
*154It is said that the Bacot case, 94 Miss 225, 48 So. 228" court="Miss." date_filed="1908-10-15" href="https://app.midpage.ai/document/bacot-v-state-7990240?utm_source=webapp" opinion_id="7990240">48 South. 228, shows it is not enough that the testimony shall show that the liquor was a malt liquor or an alcoholic liquor, but that to be a malt liquor or an alcoholic liquor, within the meaning of this statute, the liquor must contain enough malt or enough alcohol to intoxicate if drunk to excess, and that this last fact must always be one for the jury. This is a misconception of the Bacot case. The opinion in the Bacot case applies strictly to the facts of that case. The thing sold in that case was a phosphate liquor, and, as the phosphate was not one of the liquors the sale of which was expressly prohibited by the statute, it fell, of course, within the last class of liquors — that class which, if drunk to excess, will produce intoxication. But the evidence in this case does not show a liquor falling within the last class of the statute, and the Bacot case has no application. Neither does the ease of Allred v. State, 89 Ala. 112" court="Ala." date_filed="1889-11-15" href="https://app.midpage.ai/document/allred-v-state-6513798?utm_source=webapp" opinion_id="6513798">89 Ala. 112, 8 South. 56, apply here. The court simply held there that the sale of Busby’s Bitters was not within the statute. It was said that the statute did not forbid the sale of Busby’s Bitters, and that the court did not judicially know that Busby’s Bitters were intoxicating, and that consequently it was for the jury to say whether Busby’s Bitters were a vinous or spirituous and malt liquor; that is to say, a liquor which was forbidden to be sold. That case has no application here.
This case falls squarely within the case of Reyfelt v. State, 73 Miss. 415" court="Miss." date_filed="1895-10-15" href="https://app.midpage.ai/document/reyfelt-v-state-7987826?utm_source=webapp" opinion_id="7987826">73 Miss. 415, 18 South. 925. On the evidence in this case, it is perfectly manifest that a conviction is proper on either one of the two' grounds: First, that the liquor was shown to be both an alcoholic and a malt liquor; and, second, that it was shown to contain enough alcohol to make an average man drunk if he drank two bottles.
It is complained that the court gave no charge to the jury defining what a malt or an alcoholic liquor is. Under the abominable system which prevails in this state in regard to instruc*155tions, it is enough, to say that the appellant cannot complain here about this, since he did not ash, as he might very readily have done, an instruction on this subject in the court below.
Aflwmed.