People v. Wheelock

3 Park. Cr. 9 | N.Y. Sup. Ct. | 1855

By the Court, T. R. Strong, J.

The word “beer,” in its ordinary sense, denotes a beverage which is intoxicating, and is within the fair meaning of the words “strong or spiritous liquors,” used in the statutes applicable to this case. (Webs. Dict., “Beer;” Nevin v. Ladue, 3 Denio, 43; same case in error, id., 437.) Some qualifying word may be used in connection with the word “beer,” as “root beer,” “molasses beer,” &c., and the two together signify a drink which is not intoxicating, and it may also be shown, by proving the materials and the mode of production of what is called “beer,” that it is notan intoxicating drink; but when the sense is not thus restricted, the word must be understood to mean one kind of the “ strong and spiritous liquors referred to in those statutes. The “beer” in the present case was “Dutch beer;” but there is nothing in the ordinary sense of the word “Dutch” to qualify the meaning of the word “beer,” when used alone, in respect to intoxicating qualities. No evidence was given of the mode employed or materials used in making it. I think, therefore, in the absence of such evidence, the judge was right in advising the jury that “the beer described by the witnesses was ‘strong and spiritous liquors’ within the meaning of the statute.”

The indictment charges the sale of “ strong and spiritous liquors,” to wit, among other liquors, “ one pint of strong beer.” The evidence- is that the defendant sold “Dutch beer,” and, as I understand the bill of exceptions, the counsel for the defendant objected that this proof varied from and did not support the indictment, as “Dutch beer” is not “ strong beer.” I do not think there is a material variance. The terms*" strong beer” and “Dutch beer,” without explanation, must both be understood to mean intoxicating liquors of a similar character, produced from similar materials, and in a like way, to express which the former term is appropriate. By “strong beer” is understood, I suppose, a malt inebriating liquor, and I understand that “Dutch beer” is a malt inebriating liquor, not differing substantially from “strong beer,” thus understood, in the kind of materials used or the mode of its manufacture, but only in its strength, being less intoxicating. As well might it be urged, if the sale of “ale” was proved, that the charge of selling “strong beer” was not sustained, as to object that the proof of the sale of “ Dutch beer ” does not support the indictment.

New trial denied and proceedings remitted to the sessions.