Plaintiff in error was convicted of maintaining a common nuisance, as defined by section 21 of the National Prohibition Act (41 Stat. 314), in that from ahout October 8, 1920, to November 8, 1920, as was .charged’, he carried on the Flora D’ltalia restaurant, in San Diego, California, “where intoxicating liquors, to wit, wine and whisky, containing alcohol in excess of one-half of 1 per cent, by volume,” were kept and sold, in violation of the act.
“The word ‘liquor’ or the phrase ‘intoxicating liquor’ shall be construed to include alcohol, brandy, whisky, rum, gin, beer, ale, porter, and wine, and in addition thereto any spirituous, vinous, malt, or fermented liquor, * * * by whatever name called, containing one-half of 1 per centum or more of alcohol by volume, which are fit for beverage purposes.”
Whisky and wine and the other beverages specifically named were well-known articles of commerce, in common use, and needed no further description. In a prosecution for the sale of wine and whisky, therefore, it is unnecessary either to allege or prove the alcoholic content or fitness for use as a beverage; as wine and whisky they are prohibited. To be sure, the government has here charged, not only that the liquors were wine and whisky, but that they contained more than one-half of 1 per cent, alcohol. That it might do as a matter of precaution, but it was bound to prove only that they were wine and whisky, or that they contained the prohibited percentage of alcohol and were fit for use as beverages. W&tnesses testified that they purchased wine and whisky, and their competency was not questioned. If from use or by any other means the citizen knows what whisky is, he may be a competent witness. It does not require a scientific expert to identify a well-known article of manufacture and commerce, in common use. In some instances the witnesses asked for wine, and apparently got wine; presumably they got what they asked for. Lewinsohn v. United States, supra.
The judgment will be affirmed.