112 N.W. 140 | N.D. | 1907
Defendant was convicted in the dictrict court of Cass county in November, 1905, of the crime of selling intoxicating liquors to be drank as a beverage, contrary to law. He thereafter moved for a new trial, basing the motion solely upon alleged errors of law in the instructions to the jury, which motion was denied, and from a judgment entered pursuant to the verdict of conviction he has appealed to this court. The assignment of errors relates solely to the correctness of the instructions of the court to the jury, and principally to that portion thereof relating to the definition of “intoxicating liquors.” The prosecution elected to rest its case upon specific sales made by defendant to the witness W. G. Scanlon on or about August 9, 1905. This witness testified that on said date, he purchased from defendant, in his place of business, numerous bottles of beer, all of which, except one, he drank upon the premises. The defendant did not deny these sales, positively, but contended that, if he sold any liquor to Scanlon, the same was malt, and not beer, to the best of his knowledge. By the charge of the court, the jury, under this state of the record, was properly restricted to a consideration of the specific sales to Scanlon, and the only question, therefore, for the jury to determine, was as to whether or not the liquor sold to Scanlon, if any was sold, was beer or malt. If malt, he was entitled to an acquittal, as there was no proof that malt was intoxicating. In fact, the undisputed testimony showed to the contrary. On the other hand, if it was beer, as contended by the prosecution, then defendant was guilty, as the trial court properly charged ; beer being a malt liquor and intoxicating.
It is conceded by the defendant that a bottle claimed to have been purchased by the witness Scanlon from him contained beer, and it is not disputed that a certain bottle, which was identified as Exhibit D, was found upon a search of defendant’s premises by the deputy sheriff, and that it contained beer. Defendant insists, however, that, if any beer was on his premises, it must have been placed there by his clerk, without his knowledge, and that it was not kept there for sale. There was no claim made that the liquid purchased by the witness Scanlon was anything other than beer or malt, and hence
The argument of counsel for respondent, to the effect that the verdict of “guilty,” returned by the jury, conclusively shows that the jury found that it was beer, which defendant sold to the witness Scanlon, would be sound, were it not for the instructions which were predicated upon the theory that the jury might find that it was ■not beer, but was malt, or some other compound or mixture which was sold, and still find a verdict of guilty. Counsel for respondent call attention to the fact that the charge to the jury is almost verbatim like the language used by Judge Brewer in his opinion in Intoxicating Liquor Cases, 25 Kan. 757, 37 Am. Rep. 284; but the complete answer to this is the fact that, in the Kansas case, the defendant was prosecuted for selling compounds and mixtures containing the alcoholic principle, such as essence of lemon, bay rum, McLean’s •cordial, prickly ash bitters, etc., and Judge Brewer, in writing his opinion in the case, was, of course, dealing with the particular facts of that case, which, as we have seen, are entirely different from the facts in the case at bar.
It follows from what we have above stated that the judgment must be reversed and a new trial ordered.