1' liguOTs^nui? sanee: defense — I. At the time the offense of which the defendant was convicted is alleged to have been committed, he had a restaurant in which he kept for sale, and sold, _ -f • (tp . ¶ * -» beverages oí diirerent kinds, one of whichK known as <£B. B.,” is claimed by the state to have been intoxicating. To prove that such was its character the state introduced witnesses who testified, in effect, that they had drunk it in the defendant’s place of business, and that it was intoxicating; and one, a chemist, who testified that it contained alcohol. The defendant testified in his own behalf, and was asked if he knew at the time he sold the beverage that it would produce intoxication, and also whether he ever discovered that it made any one drunk, but on the objection of thé state he was not permitted to answer. Ignorance on the part of the defendant of the fact that the beverage he sold was intoxicating would ,not be a defense to the charge made against him. He sold the beverage intentionally, and did so at his peril. He is chargeable with knowledge of its real nature and effect. Had he been permitted to answer the second question in the negative, it would not have tended to establish a defense, nor to contradict evidence submitted by the *704state, for it was not shown that any one had become intoxicated in his place of business by drinking it. One witness testified that it made him “ pretty drank” to drink two bottles of it, but it is not shown that the defendant saw him when he drank it, nor while he was under its influence. We think the action of the.court in excluding the answers was correct.
2._._. evidence. II. The person from whom the defendant purchased the beverage in question testified as a witness for the defendant, naming the ingredients jj; contained, and explaining the process of its manufacture. He had the ingredients in the court room, and was asked to put them together, “and show the jury its composition.” An objection to his doing so, made by the state, was properly sustained. There was nothing in the experiment proposed which could have enlightened the jury in regard to the effects .which the beverage would produce upon persons who should drink it.
' struotion to III. The court charged the jury as follows: “5. If defendant kept ‘B. B.,’ and it.was not in the least intoxicating, you should acquit; but if the B. B. was in fact beer, or intoxicating liquor, then the fact that some men could drink it without feeling the effects of the same will constitute no evidence for defense in this case. If it did intoxicate, or if it did contain as much alcohol as beer, which is intoxicating, then such B. B. was intoxicating; and, if defendant was concerned in keeping or selling the same, or keeping with intent to sell the same, you should convict.” The appellant complains that the effect of this instruction was to withdraw from the jury the evidence of several witnesses for the defense, who testified’ that they had drunk the beverage, and that it did not intoxicate them, nor tend to make them intoxicated. The language of the instruction can not be approved. It is not true that if *705the beverage was intoxicating “the fact that some men could drink it without feeling the effects of the same will constitute no evidence for defense in this case.” Proof of that fact would be evidence for the defense, but the meaning of the instruction is evidently that if the beverage was beer, or intoxicating, then the fact that some men could drink it without feeling its effects would not constitute a defense. The jury could not have believed that they were authorized to disregard, evidence as to the effects of the beverage upon the defendant’s witnesses unless they should first find that the beverage was in fact beer, or intoxicating. The term “intoxicating liquor,” as used in our statute, includes beer. Code, section 1555. Therefore, if the jury found that the beverage was beer, or intoxicating, evidence that some men drank it without feeling its effects, even though true, could not have affected the verdict, and for that reason the erroneous part of the instruction was not prejudicial.
4. practice in coun“ OTdiet: evidence. IY. It is said the verdict is not supported by the evidence. There was much conflict in the evidence, and its weight and value were for the jury to determine. We can not say that it did not authorize the verdict rendered.
The judgment of the district court is aeeibmed.
AI-generated responses must be verified and are not legal advice.
