42 Ga. App. 292 | Ga. Ct. App. | 1930
Lead Opinion
1. It is a misdemeanor for any person in this State to have in his possession any of the following described liquors and beverages, whether or not such liquors and beverages are alcoholic or intoxicating: all malted, fermented, or brewed liquors of any name or description, manufactured from malt, wholly or in part, such as beer, lager beer, near-beer, porter and ale, and all brewed or fermented liquors and beverages in which maltose is a substantial ingredient, and all liquors and beverages or drinks made in imitation of or intended as a substitute for beer, ale, wine, or whisky, or other alcoholic or spirituous, vinous, or malt liquors, including those liquors and beverages commonly known and called near-beer. Ga. Laws, Ex. Sess. 1915, pp. 77-80; Kunsberg v. State, 147 Ga. 591, 592 (95 S. E. 12) ; Young v. State, 167 Ga. 165 (144 S. E. 726).
2. In the instant case the defendant was convicted under the third count of the accusation, which count charged him with having in his possession “a certain beverage commonly known and called ‘home brew,’ same being in imitation of or intended as a substitute for beer, ale, wine or whisky, or other alcoholic, malt, spirituous or vinous liquors.” The evidence for the State was that the defendant had in his refrigerator about four dozen bottles of “home brew,” and that the beverage in the bottles looked like beer and smelled like it. Under section 19 of the act of 1915, supra, proof that the beverage is of the same “odor and general appearance” as a prohibited beverage “shall constitute prima facie evidence” that it is such a beverage. The defendant in his statement to the jury denied that the beverage was home brew, or that it was intoxicating. He admitted, however, that he and his wife made it from “water, a little sugar, and the beer seed called ‘California beer seed,’” and that they made it for their use and drank it themselves. Beld: The evidence and the defendant’s statement authorized a finding that the beverage in question was made in imitation of or intended as a substitute for beer or near-beer.
Judgment affirmed,
Dissenting Opinion
dissenting. I do not think that the evidence authorized the defendant’s conviction.