112 Neb. 311 | Neb. | 1924
Plaintiffs in error (hereinafter referred to as defendants), who are husband and wife, were prosecuted on an information, consisting of three counts, charging viola
Defendants urge the insufficiency of the evidence to sustain a verdict of guilty as to either defendant. It appears that the sheriff and his deputy, armed with a search warrant, went to the home of defendants on their farm in Fillmore county, where they found defendant Mrs. Sommers, to whom the search warrant was read. She readily assented to a search of the premises. The officers made a thorough search, including every part of the home and the outbuildings. In a room adjacent to the kitchen was found a keg, containing 10 gallons of water and sugar mixed with one pound of yeast, and over the top of which was spread a white cloth. On being asked what it contained, Mrs. Sommers replied that she was making vinegar and that the contents would be vinegar when the process was completed. She further told the officers that the contents consisted of water, sugar and yeast, to which she would later add sorghum molasses and mother of vinegar. The contents was then in a state of fermentation. On request of the sheriff. Mrs. Sommers furnished a bottle so that the officers might take a sample of the liquid, which was later submitted to a physician for examination. He testified that he distilled some of the liquid and that it contained 31/2 per cent, by volume of alcohol. No other intoxicating liquor of any kind, or any still, apparatus or equipment for the manufacture of intoxicating liquor was found. On the following day the officers returned to the home of defend
Mrs. Sommers testified that she was making vinegar and following a recipe furnished by her mother, and was corroborated by the testimony of her mother, to the effect that she had furnished the recipe to her daughter, and further that the mother had used the recipe for making vinegar for her own use for a great many years. The evidence shows that defendants had never manufactured, sold or possessed any intoxicating liquor. It further appears that a day or two prior to the day on which the search was made by the officers Mrs. Sommers had stated to a visitor at her home that she was going to make vinegar, and she told a caller at her house that morning that she was making vinegar and showed her the keg in which the ingredients had been placed to ferment. No bottles, jugs or other containers for intoxicating liquor were found, and, for aught that appears in the evidence, defendants were honest, upright, respectable citizens, of integrity, without any just reason to suspect them of wrong-doing or misconduct. They had lived in the county for ten years and on the same farm for a period of six years. A recognized process of making vinegar is that employed by Mrs. Sommers, and apparently is one in common use.
Our liquor statute recognizes that it is lawful for a citizen to manufacture vinegar. Section 3238, Comp. St. 1922, after declaring that it shall be unlawful to manufacture, sell or keep for sale intoxicating liquors, further provides: “And nothing herein contained shall be construed to prevent the bona fide manufacture and sale of vinegar.” The placing of this provision in the statute clearly recognizes that alcohol may be developed in the process of manufac
In view of the circumstances disclosed by the record, we are of the opinion that the evidence is wholly insufficient to warrant a verdict of guilty.
Complaint is made of the eleventh instruction, which defines the word “mash,” as used in our prohibitory law, as “Any mixture of ingredients in water or other liquid so as to soften and in such a manner as to evidence that fermentation has been produced, or is intended to be produced as a stage in the process of manufacturing intoxicating liquor.” The word “mash” has different significan
We are inclined to the view that, as used in our statute, the word “mash” would include any mixture of grain, either whole, cracked or crushed, or malt, mixed with water or other liquid so as to produce fermentation. We think the definition as given in the instruction is entirely too broad. The mixture of ingredients in possession of defendants, consisting of water, sugar and yeast, was not mash, within the meaning of our prohibitory law. The instruction practically told the jury that the mixture was mash. This was prejudicial error.
Because of the errors pointed out, the judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.
Note — See Intoxicating Liquors, 33 C. J. p. 577, sec. 194; p. 578, sec. 195; p. 757, sec. 502; p. 761, sec. 505.