81 Ga. 753 | Ga. | 1888
Snider was convicted, in two cases, for selling spirituous and intoxicating liquors to minors, and in both cases made motions for a new trial, which were overruled by the court, and he excepted. The proof showed that the defendant sold pure alcohol to two boys on different occasions. The main point argued before us was, that the judge in charging the jury, in both eases, instructed them that alcohol was a spirituous and intoxicating liquor, and that it was not necessary for the State to prove that it was intoxicating; or, in other words, that the court could take judicial cognizance of the fact that alcohol was intoxicating, and could so instruct the jury, without proof that it was intoxicating. Counsel for the plaintiff in error argued that this was an expression of opinion by the court upon the facts of the case, and therefore was error.
In the case of Briffitt vs. The State, 58 Wisc. 42, the defendant was indicted for selling intoxicating liquors without first having obtained a license therefor. The proof was that he sold beer. The question before the court was, whether proof that the defendant had sold beer was sufficient proof that he had sold malt and intoxicating liquor. Orton, J., in delivering the opinion of the court, said: “At the present time we all know that this malt liquor, under the generic name of “beer,” is made and used in most of European countries, and in our own, and is a common beverage. As long as laws for licensing the sale of intoxicating liquors have existed, brandy, whiskey, gin, rum and other alcoholic liquids have been held to be intoxicating liquors per se;
There are numerous other cases holding that the courts will take judicial knowledge that beer is an intoxicant, and that the fact need not be proved to the jury. It is true that there are authorities in conflict upon the question of whether beer is such a well-known intoxicant as to need no proof of the fact, some courts holding that it is and others that it is not; but no case was cited, nor have we been able to find any, that holds that it is necessary to prove that alcohol, whisky, brandy, gin or rum are intoxicants.
In the case of the Commonwealth vs. Peckham, 2 Gray, 514, it was held that “an allegation in an indictment of an unlawful sale of intoxicating liquor, is supported by proof of such a sale of gin, without proof that gin is intoxicating.” The court say, in that case: “Jurors are not to be presumed ignorant of what everybody else
Of course, if it is not well-known and well-recognized by the people generally that a drink is intoxicating, proof of the fact that it is intoxicating should be required. If there is a new drink, or a beverage not so well-known, such as “argaric,” “rice-beer,” and other drinks common under prohibition laws, proof that it is an intoxicating liquor would be necessary.
For these reasons, we affirm the judgment of the court below in both cases.
Cited for the plaintiff in error: 3 Denio (N. Y.), 437; 20 W. Va. 22; 1 Hawley Crim. Rep. 490; 23 Ind. 483; 50 Ind. 555; 69 Ind. 68; 67 Maine, 242; 34 Maine, 165; 116 Mass. 56; 9 Gray, 136.
Cited for defendant in error: 58 Wisc. 40; 93 Ind. 251; 18 Ind. 450; 2 Gray, 514; 20 W. Va. 18; 58 Wisc. 737; 38 Am. Rep. 344.
Judgment affirmed.