85 W. Va. 261 | W. Va. | 1919
Convicted upon an ’indictment charging a violation of the provisions of section 7, ch. 32A, Code 1916, and fined and sentenced to six months’ imprisonment in the county jail and to work on the public roads of the county during such period, Henry Dennison has brought the case here for review by writ of error awarded upon his petition. The specific charge averred in the indictment, demurred to, is the carrying of intoxicating liquors for J. S. Davidson from the residence of Carrie Thomas
The substance of the testimony introduced by the state upon the trial was given by N. E. Hurd, who saw defendant with- a shoe box in his possession approach and enter the storeroom of Davidson from the direction of Carrie Thomas’ residence, where he then roomed. The witness followed him into the store and inquired of Davidson what was in the box, and after having first stated that it was none of his business, Davidson asked witness to accompany him to the basement of the store, to which both of them went, and when there, Davidson opened the box and showed witness what the latter testified was a bottle, with government seal unbroken, full of Mattingly & Moore’s commercial brand of whiskey, which he says he took into his hands, but did not break the seal or taste the liquor, and redelivered it to Davidson and left the building. This testimony no witness contradicted except as to the color and contents of the container. He said the bottle filled with liquor was dark in color, whereas the empLy one produced by defendant at the trial of the case was lighter in color and, according to Davidson and other witnesses testifying for defendant, like the bottles used by Mattingly & Moore as containers of whiskey sold by them. The one that Hurd saw was not produced or otherwise identified and no witness accounted for or explained its absence.
Besides the conflict as to these particulars, which difference the testimony emphasized, defendant’s witnesses also endeavored to persuade the jury impaneled to determine the guilt or inno-cense of the accused to believe that the seal on the bottle had been cut so adroitly by the use of a sharp knife before Hurd examined it as to escape detection except upon close scrutiny, and that the bottle did not contain intoxicating, liquor, but did contain imperfectly fermented elderberry bloom, thus producing, a mixture called elderberry wine, and as such a nonintoxicating drink. That there was in it sufficient .alcohol to produce intoxication no testimony tends to show, if we disregard for the moment the testimony introduced by the state as to the character
The chief, ground of complaint against the conviction and sentence is the action of the court in sustaining the state’s motion to exclude the testimony of Dennison and Davidson touching the intoxicating quality of the contents of the bottle. The provisions of section 7, ch. 32A, Code 1916, under which this indictment was found, are applied only to “intoxicating liquors,” as defined by section 1. Hence it becomes necessary to establish the intoxicating quality of the liquid delivered by defendant to Davidson unless it is embraced within the enumerated liquors declared by the statute to be deemed intoxicating. If the bottle contained the brand of whiskey noted on the label, as to-which Hurd testified, there was no error, according to the decisions of this court, in sustaining the motion to exclude. 15 R. C. L. 376; Note, 48 L. R. A. (N. S.) 302. The term “spirituous liquors” as used in the statute includes all forms of whiskey
If, therefore, the beverage carried by defendant-and by him delivered to Davidson had been whiskey or any one of the commercial brands of wine produced by the ordinary process of fermentation, it clearly would be within the statutory inhibition. Such wines are included in the term “intoxicating liquors” as so defined; and to sell or carry them from one place to another within this state is an offense punishable by law; and to justify a conviction nothing more need be proved than the sale or transportation of some one or more of such brands. Sawyer v. Botti 147, Ia. 453; 15 R. C. L. 380. But, thoirgh the term “wine” as used in section 1 and there defined as an intoxicating liquor clearly includes all the commercial brands, it cannot, in the absence of words indicating an intent on the part of the legislature to give it a broader meaning, reasonably be construed to include within its scope all forms of beverage'to which the term “wine” is often loosely applied. Some of such noncommercial beverages no doubt are intoxicating, while others may
Where it becomes necessary for the state, in a prosecution for an alleged violation of the' provisions of section 7, ch. 32A, to establish the intoxicating quality of the liquor carried, because not included within the enumeration of liquors declared by the statute to be intoxicating, it may do so by testimony of a general nature, or by establishing through chemical analysis that the beverage contains so much as one-half of one per cent of alcohol by volume. The last clause of section 1, ch. 32A, provides thar any beverages containing such alcoholic percentage shall he deemed spirituous liquors. The term “spirituous liquor” is used and defined by the legislature in the first part of the section as a prohibited intoxicant, and, therefore, if the proof should show the contents of the bottle to contain such proportion of alcohol, it would constitute an intoxicating liquor as so defined.
So far as the instructions-given and refused accord with the principles herein enunciated, they were properly given or improperly refused, as the case may be. Our order, therefore, will reverse the judgment, and remand the case for retrial.
Reversed and remanded.