3 Liquor Tax Rep. 450 | New York County Courts | 1904
The jury has cast upon the court in this case the duty of determining whether “malt rose,” so called, is distilled or rectified spirits, or fermented or malt liquor, within the meaning of section 2 of the Liquor Tax Law.
Philput,- the manufacturer of the beverage sold by defendant under the name of malt rose, testified that one of the ingredients
The sole remaining question is the practical one, whether the quantity of alcohol is so small that the law ought to ignore it.
It was in evidence, and is undisputed in.this case, that Schlitz Milwaukee lager beer contains only two and forty-five-hundredths per cent, of alcohol. Clearly, a lager beer containing this amount of alcohol cannot be lawfully dealt in in a no-license town. If the contents of a bottle of this beer were to' be diluted by two parts of water to one of beer, I have no doubt the resulting beverage would still be within the prohibition of the law, and yet it would contain a less percentage of alcohol than some of the samples of malt rose submitted to Mr. Williams. On the trial of this action Philput, the manufacturer, was unable to determine by inspection whether a bottle shown him was malt rose manufactured by him, or lager beer. If the product is manufactured as a substitute for lager beer and sold either for the purpose of deceiving the purchaser or evading the law, the charity of the law should not be exercised toward it. In practically all of the trials in this court involving alleged violations of the Liquor Tax Law in the town of Potsdam since the last biennial town meeting, the last line of defense has been that in any event the defendant could not be guilty of any offense because he only kept for sale or sold malt rose. I incline, therefore, to hold, after considerable observation in other cases as well as in this, that the article in question is peculiarly intended to aid in the evasion and defeat of the law, and that its sale with the quantity of alcohol shown to be contained is a violation of the Liquor Tax Law.
The United States commissioner of internal revenue passing upon a beverage called “beerine” in April, 1902, which contained
I, therefore, hold that the facts prove the defendant guilty oi the offense charged in the indictment, and give judgment accord ingly.
Judgment accordingly.