79 Neb. 651 | Neb. | 1907
In this action the defendant was charged with the violation of section 7170, Ann. St., making it unlawful for any person to. keep for the purpose of sale without a license any malt, vinous or spirituous liquors in the state of Nebraska, and making it a misdemeanor for any person to be found in possession of any intoxicating liquors within the state with the intention of disposing of the same without a license. The defendant, having been found guilty and sentenced to pay a fine of $100, brings the case to this court for review.
From the undisputed evidence it appeared that the defendant had been operating a saloon in the village of Randolph for several years immediately preceding the first day of May, 1906; that during the year 1906 no saloon licenses were granted by the village authorities of Randolph. The defendant continued in business in his saloon building, selling certain drinks under the names of “Hop Soda,” “Cream of Malt,” “Malt Extract,” and “Fremont Old German Tonic.” On the 10th day of November, 1906, the defendant’s premises were searched, and a large quantity of the above mentioned liquors was seized. That the defendant had the liquors in his possession for the purpose of sale, and was selling them, is conceded.- The theory of the defense was that the liquors were not intoxicating.
Defendant first contends that the transcript does not show that the jury were sworn to try the case, that neither the defendant nor his counsel were present when the verdict was returned, and that the jury were not polled. As to the first of these assignments, it is sufficient' to say that the transcript does not bear out defendant’s contention. It clearly shows that the jury were duly impaneled and SAVorn. As to Avhether or not defendant or his counsel Avere present when the verdict Avas received the record is silent. NoAvhere in the record does it appear that either Avas absent at the time. The presumption arises that,
Defendant next contends that there was error in the admission of certain testimony. Several witnesses who had tasted and drunk of the liquors that defendant had kept and sold, and that had been taken from his premises under the search warrant, were permitted to testify that the liquors in question tasted like beer. Defendant contends that this was erroneous. A chemist had analyzed several samples of the different kinds of liquors taken from the defendant’s premises under the search warrant, and testified as to the results of his analysis, as to the percentage of alcohol in each, and that each of the samples contained more than 2 per cent, of alcohol, ranging from 2 1-10 to 2 72-100 per cent. The chemist fesiified that he was familiar with beers and their composition, and that the several liquors labeled as “Hop Soda,” “Cream of Malt,” “Malt Extract” and “Fremont Old German Tonic” were malt liquors and belonged to the class of liquors known as beers. From a consideration of the evidence in the case, it is apparent that the liquors known
The description of the liquors in the information was in the folloAving language: “Certain intoxicating liquors, to Avit, Malt Extract, Cream of Malt and Hop Soda.” No mention is made in the information of the liquor called “Fremont Old German Tonic.” Evidence Avas admitted on the trial shoAving that the defendant kept for sale and Avas selling liquors under this name, and the chemist was permitted to testify as to the analysis of it and as to the percentage of - alcohol contained in it. Defendant complains because this evidence Avas admitted, for the reason that he Avas not charged in the information with the keeping for the purpose of sale Fremont Old German -Tonic. He contends that he was, or at least might have been, found guilty of keeping for sale a liquor, with the keeping of which he was not charged in the information. If there was no evidence of the keeping for sale of the liquors described in the information, and the only evidence as to the keeping of liquors Avas as to that called “Fremont Old German Tonic,” there would be much greater force in defendant’s contention. But the evidence is ample, and, in fact, it is admitted by the defendant, that he did keep and sell all of the liquors charged in the information, and there is ample evidence in the record that all of these liquors charged in the information were intoxicating. In
The defendant complains of instruction No. 5, given by the court. It is in the follOAving language: “The Avord ‘beer,’ without restriction or qualification, denotes an intoxicating malt liquor, and is Avithin the meaning of the words ‘intoxicating liquor,’ as used throughout the statute.” The defendant contends that this instruction was erroneous, because of the fact that he Avas not charged with the keeping for sale of beer. However, the evidence fully justifies the conclusion that the liquors sold were, in fact, beers, and this court has held, in the case of Peterson v. State, 63 Neb. 251, that the courts of this state will take judicial notice that beer is an intoxicant. The instruction given was correct, as a matter of law, and, under the evidence introduced in this case, it was peculiarly fitting and applicable, and was properly given.
We noAV come to the consideration of the last, as well as the most serious, of defendant’s contentions, namely,
The defendant further contends that the statements made by the juror are at variance with his voir dire examination, and that, by reason of the statements made upon his voir dire examination, they were misled into accepting him as a juror, and that his statements to his fellow jurors show that he was biased and prejudiced, while the voir dire examination did not disclose such fact,
We fail to find any prejudicial error in the record, and therefore conclude that the judgment of the district court is right and should be affirmed.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is
Affirmed.