*21.*1Thе State instituted this prosecution against appellant upon an affidavit charging the unlawful sale of in*2toxicating liquors. The affidavit alleged that “Ivan R. Godwin, being duly sworn, upon his oath says that as he is informed and believes that Buff Turner, a person whose true name is unknоwn to affiant, on February 8, 1910, at the county of Hamilton and State of Indiana, did then and there unlawfully sell to Louis Wien one pint of beеr, at and for the price of ten cents; he, said Buff Turner, not then аnd there being licensed under the laws of the State of Indiana to sell spirituous, vinous and malt liquors.” Appellant moved to quash the affidavit upon the ground that it did not state an offense. His motion was overruled, to which he excepted. On a trial by the court the defendant was found guilty, and fined $100. Over appellant’s motion in arrest оf judgment and for a new trial, judgment was rendered upon the finding of the сourt. He appeals, and assigns as errors the overruling of the motion to quash the affidavit and the overruling of the motion for а new trial.
2. The argument of appellant’s counsel in regard to the insufficiency of the affidavit is somewhat confused, and we are not clearly advised thereby in respect to the defiсiency urged against the pleading, but as we view their argument, it is that the liquor alleged to have been sold is not shown to have beеn of the kind or character to require appellant tо have a license, under the laws of this State, in order lawfully to sell it. It will be noted that the affidavit charges appellant with the unlаwful sale of a pint of beer for the price of ten cents to the person therein mentioned at the time and place stated. The absence of a license is duly negatived by the averments of the pleading. The affidavit, considered as а whole, certainly discloses that the liquor with which it is dealing, and which it charges was sold by appellant, is malt liquor. The primary meaning оf the term “ beer,” as held by this court in the case of Myers v. State (1884), 93 Ind. 251, is “ a fermentеd liquor; ” or, in other words, “ a malt liquor made from any malted grain with hoрs or other bitter flavoring.” The *3sufficiency of the affidavit, in respect to the liquor therein mentioned being malt liquor, is fully sustained by the deсision of this court in the case of Welsh v. State (1890), 126 Ind. 71. On the same point see Joyce, Intox. Liq. §21; Woollen & Thornton, Intox. Liq. §76.
3. If the beer sold by appеllant was not intoxicating liquor within the meaning of the statute prohibiting thе sale of such liquors as a beverage by an unlicensed dealer, he had the right to controvert that fact upon the trial. The affidavit is sufficient, and there was no error in overruling the motion to quash.
4. It appears that after the court found appеllant guilty and. assessed his punishment, he, on April 8, 1910, filed a motion in arrest of judgment. This motion the court denied, to which ruling he excepted. Thеreafter, on the 11th day of the same month, he filed his motion for а new trial, wherein he assigned certain reasons in support thеreof. As the motion in arrest of judgment and the ruling of the court therеon preceded the filing of the motion for a new trial, appellant thereby deprived himself of the right to file a motion for a new trial. Therefore, the latter motion cannot be considered in this appeal. Yazel v. State (1908), 170 Ind. 535, and cases cited.
As the record presents no error, the judgment below is affirmed.
