delivered the opinion of the court.
This is an appeal from a conviction on a charge of possessing intoxicating liquor. The main points presented for reversal are that a peremptory instruction should have, been granted by the lower court discharging the defrndant, and that it was error in the court to refuse an instruction for the appellant on the question of whether the intoxicating liquor involved was home-made wine or was other alcoholic liquor.
The facts shown by the state were that, when the sheriff and other prohibition officers went to the home of appellant they found several gallons of home-made wine, a five gallon stone jar full of raisins and grapes in the process of fermentation, and a keg containing about fifteen gallons of peaches chipped up in water with sugar on them. The officer testified that the wine was intoxicating, and, in his judgment, contained about twenty per cent, of alcohol. It is not clear, however, whether the wine had by its own fermentation produced this “kick” or whether distilled alcohol had been added to the wine, so as to increase its intoxicating effect. The appellant asked for a discharge on this state of facts, and he also asked for an instruction, which was refused, submitting the question of the jury as to whether the intoxication, if any, was due to the addition of alcohol, or was caused by fermentation.
A study of the history of our state prohibition laws enacted in the past thirty years reveals the fact that the manufacture and possession of home-made wine for domestic or household purposes has never been, and is not now, prohibited by law. See section 1622, Code of 1892; chapter 100, Laws of 1896; section 1791, Code of 1906; chapter 113, Laws of 1908; section 2113, Hemingway’s Code; chapter 103, subd. 5, Laws of 1916, being section 2155, Hemingway’s Code; chapter 189, section 12, subd. 4, Laws of 1918.
There being no law prohibiting the possession of homemade wine for domestic purposes, even though this homemade wine is intoxicating, the appellant should not have been found guilty in this case, unless the jury believed that the intoxicating quality of the wine was due to the addition of alcohol, and not- due to the natural fermentation of the wine. But the lower court committed the error of refusing the appellant an instruction submitting this question to the jury; the court.going upon the theory that, if the wine found in the possession of appellant Avas intoxicating, then he was guilty as charged under the lawT.
This proposition should have been submitted to the jury for their determination, and if they believed the wine was intoxicating on account of added alcohol, or other intoxicating liquor, then they should convict, but if they believe the wine was intoxicating on account only of natural fermentation of the grapes, then there should be an acquittal under the prohibition law of our state as it is now written.
For the error committed in refusing to grant the instruction complained of, the judgment of the loAver court is reversed, and the case remanded.
Reversed and remanded.