United States v. Ducournau, 54 F. 138

United States v. Ducournau

54 F. 138 | U.S. Circuit Court for the District of Southern Alabama | 1891

TOULMIN, District Judge.

The indictment charges that defendant carried on the business of a retail dealer in malt liquors without a license. The evidence tended to prove that he carried on business and sold beer by the glass. The jury found him guilty. A motion is now made to set aside the verdict and grant a new trial on the grounds: First, that there was no evidence to support the verdict; and, second, that the evidence was not sufficient to establish beyond a reasonable doubt the guilt of the defendant. The contention is that proof that beer was sold does not support the charge that malt liquor was sold, but that there should be evidence that the beer sold was that made of malt. At first impression I was inclined to yield to this contention, and to hold that the evidence did not support the verdict. But from investigation and further consideration I have reached a different conclusion. Malt liquor is defined to be a beverage prepared by infusion of malt, as beer, ale, porter, etc.; and beer is defined as a fermented liquor, chiefly made of malt. If, then, beer is a liquor chiefly made of malt, and *139malt liquor is a beverage prepared by infusión of malt, beer is malt liquor, and malt liquor embraces beer. Allred v. State, 89 Ala, 112, 8 South. I$op. 58. I believe this is common knowledge, and that when one speaks of beer he must be understood to mean beer made of malt. The ordinary accepts,lion of the term “malt liquor” imports a fermented liquor, made chiefly of malt; and beer is a fermented liquor made chiefly of malt, as I have said. Now, there are other kinds of beer, made from vegetables, roots, and the like. When these are referred to, 1 think there is a prefix to the word beer; as, for instance, spruce beer, cain beer, etc. My opinion, therefore, is that the general term “beer,” as defined and commonly understood, refers to beer made from malted grain, and that when any other kind of beer is meant a prefix must be added to indicate the kind referred to. The supreme court of this state has in several cases decided that the courts take judicial knowledge of the fact that lager beer is a malt liquor, and that evidence of that fact was not necessary to support an indictment charging the unlawful selling of malt liquor; the evidence in the cases referred to showing that lager beer was the liquor sold. Tinker v. State, 90 Ala. 647, 8 South Rep. 855; Watson v. State, 55 Ala. 158; Allred v. State, supra. "When we consider the definition of the words “lager” and “beer,” and why that beverage is commonly called “lager beer” in this country, we may justly conclude that, had the evidence in the cases referred to been that beer was sold, the court would have made the same ruling. Lager beer is a beer much used in Germany, where it is kept in casks on a frame, (“lager” signifying “bed,”) placed in a cellar for that purpose, and it is the name of a similar beverage now largely manufactured in the United States. It is obviously called “lager beer” here to indicate that it is like the German beer. The fact that the word “lager” is prefixed to the term “beer” does not convey the idea that it is a fermented liquor made of malt. This idea is involved in its being called “beer,” beer being a fermented liquor, chiefly made; of malt. This is, I believe, known wherever it is drank or is an article of commerce.

This disposes of the first ground on which, a new trial is claimed. While the court decides whether there is any evidence on the issue in a case, and what evidence is before the jury, the jury are the sole and exclusive judges of the weight and sufficiency of the evidence. They must he convinced, beyond a reasonable doubt, by the evidence, before they can find the defendant guilty; and they alone can say whether they a,re thus convinced. Even if the court, should differ with them in the conclusion reached as to the weight of the evidence, it would be a mere difference of opinion. And where the jury, considering the weight of the evidence, say by their verdict that it is sufficient to convince them beyond a reasonable doubt of the defendant’s guilt, the court would not substitute its opinion for that of the jury, especially in a case of this sort. In saying this I do not mean to intimate that I differ with the jury in the conclusion reached by them in this case now that I am satisfied on the technical point of defense raised in the case. The motion is denied.