It is the opinion of the court that The liquors and vessels are dethe Jamaica ginger now held in this clared forfeited to the state. case is an intoxicating liquor within the meaning of $ 21, chap. 127, Rev.

NOTE. Stat. It therefore follows that any

The test of the intoxicating characsale thereof is an unlawful sale, and

ter of liquor is the subject of the anany possession for the purpose of notation beginning at page 1137, post. sale is an unlawful possession. Rev. For other cases involving medical Stat. chap. 127, 88 27, 28. The compounds capable of being used as a

$$ mandate will be judgment for the beverage, see subdivision II. a, of that state.

annotation.

STATE OF WEST VIRGINIA

V.
HI HENRY, Piff. in Err.

SAME

V.
ED. POMEROY et al., Piffs. in Err.

SAME

V.
S. M. BURNSIDE, Piff. in Err.

West Virginia Supreme Court of Appeals - April 7, 1914.

(74 W. Va. 72, 81 S. E. 569.) Intoxicating liquor - definition.

1. An instruction to the jury “that, in order to make any fluid or liquid an intoxicating drink, it must be capable of producing intoxication, in the usual sense and common acceptation of the term intoxication; that is, it must have in it a sufficient amount of alcohol to produce intoxication when consumed in sufficient quantities," properly propounds the law in such cases, and it was not error to reject other instructions propounding a different rule of liability.

[See note on this question beginning on page 1137.] - what is - special beverages. charging drinks to be intoxicating is

2. Proof of sales of "Bevo" and unnecessary. "Temperance Malt” without a state [See 15 Ř. C. L. 377 et seq., 396.) license therefor, if proved to be drinks

Appeal — finding on intoxicating liq. of like nature to spirituous liquors,

uor review. wines, porter, ale, and beer,-to be

3. This court will not, on review of a intoxicating, in the common acceptation of that word,-may be given in

judgment of conviction in such cases, evidence under an indictment charg

disturb a verdict found by the jury on ing defendant, in the language of the

conflicting evidence, as to whether statute, with the unlawful sale, offer,

"Bevo," or "Temperance Malt," is and exposure for sale of spirituous li- capable of producing intoxication, as quors, wines, porter, ale and beer, and defined in said instruction. drinks of like nature; and a count [See 2 R. C. L. 193 et seq.]

Headnotes by MILLER, P.

(74 W. Va. 72, 81 8. E. 569.) ERROR to the Circuit Court for Lewis County to review judgments convicting defendants of violating the Intoxicating Liquor Law. Affirmed.

The facts are stated in the opinion of the court. Messrs. Brannon & Stathers, for tains two counts, and are alike, explaintiffs in error:

cept that the second count in the To make sale of a drink not named Burnside Case, in addition to chargin statute unlawful, indictment should ing the unlawful sale, offer, and exaver that it will produce intoxication.

posure for sale of certain malt Bishop, Statutory Crimes, § 220;

drinks commonly called "Bevo, Woollen & T. Intoxicating Liquors,

” § 78; State v. Durr, 69 W. Va. 252, 46

adds, "and Temperance Malt," being L.R.A.(N.S.) 764, 71 S. E. 767.

"drinks of a like kind and nature Intoxicating quality of drink sold be- to spirituous liquors, wines, porter, ing the test, jury should have been so ale, and beer." The first counts

' instructed.

charge that defendants "without “Drunkenness" is the state of being having obtained a state license drunk or overpowered by intoxicants.

therefor, as required by law, did un14 Cyc. 1091; 4 Words & Phrases, lawfully sell, offer, and expose for 3734; Kenney v. Rhinelander, 28 App.

sale, spirituous liquors, wines, porDiv. 246, 50 N. Y. Supp. 1088; Black, Intoxicating Liquors, § 423; 2 Sackett,

ter, ale, and beer, and drinks of a Instructions to Juries, p. 2045, § 3198;

like nature.” Youngs v. Youngs, 130 Ill. 230, 6 L.R.A. We will consider only such of the 548, 17 Am. St. Rep. 313, 22 N. E. 806; errors assigned as are argued and Halstead v. Horton, 38 W. Va. 727, 18 relied on here, treating the others as S. E. 953.

abandoned. Messrs. A. A. Lilly, Attorney Gen

The demurrers to the indictments eral, John B. Morrison and J. E. and each count thereof were overBrown, Assistant Attorneys General, ruled. The first counts are concedand Charles P. Swint, for the State: edly good; but it is said the second Under the count, which alleges gen

counts are bad for failure to allege, erally a sale of spirituous liquors, wine,

in addition to what is alleged, that porter, ale, beer, etc., all the evidence introduced was admissible.

"Bevo" and "Temperance Malt” are State v. Good, 56 W. Va. 215, 49 S.

in fact drinks which will produce E. 121; State v. Gillispie, 63 W. Va.

intoxication. We need not bother 152, 59 S. E. 957; State v. Cool, 66 W. about this question. Our cases hold Va. 86, 66 S. E. 740; State v. Durr, 69 that evidence of the sale, offer, or W. Va. 251, 46 L.R.A.(N.S.) 764, 71

exposure to sale of any mixture or S. E. 767; State v. Oliver, 26 W. Va. liquids which will produce intoxi427, 53 Am. Rep. 79. The indictment, in alleging a sale of

cation, is admissible under an ina drink of like nature to spirituous

dictment charging, as the first count liquors, follows the language of the in each case does, the unlawful sale, statute.

offer, and exposure United States v. Mills, 7 Pet. 138, 8 for sale of spiritu- liquor-what is

Intoxicating L. ed. 636; State v. Paddock, 24 Vt. ous liquors, wines, special

beverages. 315; State v. Bierce, 27 Conn. 319.

porter, ale, beer, It is not necessary, in the trial of an

and drinks of a like nature. State indictment under the statute, for the

v. Good, 56 W. Va. 215, 49 S. E. 121; court in an instruction to define what constitutes intoxication. It is enough

State v. Gillispie, 63 W. Va. 152, 59 to charge that the evidence must prove

S. E. 957. intoxication.

True, Judge Brannon, in State v. Woollen & T. Intoxicating Liquors, Durr, 69 W. Va. 251, 46 L.R.A. $ 1086; Shorb v. Webber, 118 Ill. 126, (N.S) 764, 71 S. E. 767, arguendo, 58 N. E. 949; Black, Intoxicating quotes Woollen & Thornton on InLiquors, § 423; State v. Kelley, 47 Vt. toxicating Liquors, $ 78, to the ef294.

fect that if the liquor be not judiMiller, P., delivered the opinion of cially known as a prohibited liquor, the court:

then it must be alleged that it is an The indictment in each case con- intoxicating liquor, which would be

true, perhaps, under our law, if the 188, Ill. 126, 58 N. E. 949; Buck v. indictment alleged a sale of a li- Maddock, 167 Ill. 219, 47 N. E. 208. quor, mixture, or liquid not so It was not a question before the judicially known as a prohibited jury as to what a man's condition liquor. But Judge Brannon evi- had to be before he could be said to dently did not have the question of be intoxicated, varying often acpleading before him in that case, cording to the circumstances and and did not mean to imply that proof conditions under which he might be of the intoxicating character of the placed. The sole question before liquor sold would not be admissible the jury on the trial was whether under an indictment charging, as the liquor charged to have been unthe first counts in these indictments lawfully sold would, as stated in the do, a sale of spirituous liquors con- instructions, produce intoxication. trary to law. It was not his in- We see no error, therefore, in the intention to overrule State v. Good and structions, or modifications of the State v. Gillispie, supra, in which instructions, as given on the trial he had so recently concurred, hold- On the question whether "Bevo" ing to the contrary.

or “Temperance Malt,” admitted to The ground of error most strong have been

have been sold by defendants, ly urged is the refusal of the court, would produce intoxication as deby several instructions proposed by fined by the instructions, the evidefendants, to define "intoxication dence was very conflicting. Accordas used in § 1, chapter 32, Code ing to some of the witnesses, they 1906, providing that "all mixtures, contained from 1.31 to 2.05 per preparations or liquids which will cent by weight of alcohol, while in produce intoxication, whether they ordinary beer the percentage ranges are patented or not, shall be deemed from 3 to 4 per cent. Some of the spirituous liquors within the mean- witnesses said the human stomach ing of this section." Lexicogra- could not contain enough of "Bevo" phers, text-writers, and judicial de- or “Temperance Malt" to produce cisions are appealed to for defini- intoxication; others, that it could; tion. It is apparent that the only some, speaking from experience in question which could be fairly pre- the use of it, thought that it would sented to the jury under the indict- not produce intoxication. Witnesses ments, and under the statute, was for the defendants testified that whether the liquor sold would pro- these drinks were made of the same duce intoxication in the ordinary material, and in the same way, as and common acceptation of the word, ordinary beer, except that they conwhen drunk in sufficient quantities. tained less alcohol, and only enough This question, we think, was fully to keep them fresh a reasonable and fairly presented to the jury on time, and not in sufficient quantities

the trial, particu- to intoxicate. On this kind of con-definition. larly by defend- flicting evidence the

Apreal-finding ants' instructions given by the jury found against on intoxicating cour in the language, or effect, fol- defendants, and we

liquor-review. lowing: “The court instructs the cannot, on familiar principles, rejury that in order to make any verse their finding. fluid or liquid an intoxicating drink, The judgments below will, thereit must be capable of producing in- fore, be affirmed. toxication in the usual sense and common acceptation of the term in

NOTE. toxication; that is, it must have in it a sufficient amount of alcohol to The test of the intoxicating characproduce intoxication when consumed ter of liquor is the subject of the annoin sufficient quantities." We think tation beginning at page 1137, post. this instruction sufficiently covered Specifically, as to actual capacity to the case. Woollen & T. Intoxicating intoxicate, see page 1141, of that Liquors, § 1086; Shorb v. Webber, note.

(13 Okla. Crim. Rep. 604, 166 Pao. 77.)

T. J. ESTES, Piff. in Err.,

V.
STATE OF OKLAHOME.

Oklahoma Criminal Court of Appeal - July 14, 1917.

(13 Okla. Crim. Rep. 604, 166 Pac. 77.) Intoxicating liquor - definition.

1. “Intoxicating liquor," as this phrase is used in the prohibitory liquor statutes of this state, is an alcoholic liquor, and in order to come under the ban of the law such liquor must either contain more than of 1 per cent of alcohol, or a sufficient quantity of it, in a liquor or compound capable of being used as a beverage, to intoxicate a human being.

[See note on this question beginning on page 1137.] Evidence - sufficiency sale of in- establish the fact that such liquor is toxicating liquor.

intoxicating, in addition to other neces2. In the trial of a person on an in

sary facts; otherwise, a judgment of formation which charges the sale of

conviction cannot stand. intoxicating liquor, the proof should [See 15 R. C. L. 376, 396.]

Headnotes by ARMSTRONG, J.

ERROR to the County Court for Bryan County (Rappolee, J.) to review a judgment convicting defendant of selling intoxicating liquor in violation of law. Reversed.

The facts are stated in the opinion of the court.

Messrs. Utterback & MacDonald, for Mr. R. McMillan, Assistant Attorplaintiff in error:

ney General, for the State. To sustain the conviction, evidence showing that the compound was an “in

Armstrong J., delivered the opintoxicating liquor" was necessary.

ion of the court: Markinson v. State, 2 Okla. Crim.

The plaintiff in error, T. J. Estes, Rep. 323, 101 Pac. 353; Benson v. State, was convicted in the county court of 10 Okla. Crim. Rep. 16, 133 Pac. 271; Bryan county on a charge of selling Bowes v. State, 7 Okla. Crim. Rep. 316, intoxicating liquor, and appeals to 126 Pac. 580; Gresham v. State, 9 Okla.

this court for a reversal of the judgCrim. Rep. 661, 132 Pac. 1122; Ex parte

ment. Hunnicutt, 7 Okla. Crim. Rep. 213, 123

The information first Pac. 179; Tracy v. State, 9 Okla. Crim.

filed Rep. 532, 132 Pac. 692; Lynn v. State,

charged the plaintiff in error with 5 Okla. Crim. Rep. 115, 113 Pac. 989;

the sale of a certain liquor or comMcHugh v. Territory, 17 Okla. 2, 86 pound known as “Vina Vita" to one Pac. 433; Bilton v. Territory, 1 Okla. Dave Le Flore, and that the liquor Crim. Rep. 566, 99 Pac. 163.

or compound was capable of being The court erred in overruling the mo

used as a beverage, and contained tion of the defendant, which was filed

more than of 1 per cent of alcohol, at the close of the evidence on the part of the state, for an instructed verdict.

measured by volume. Benson v. State, 10 Okla. Crim. Rep.

An amended information was filed

which charged the sale of 5 quarts 16, 133 Pac. 271; Bowes v. State, 7 Okla. Crim. Rep. 316, 126 Pac. 580;

of intoxicating liquor or compound Gresham v. State, 9 Okla. Crim. Rep.

commonly known as Vina Vita, to 661, 132 Pac. 1122; Ex parte Hunni

Dave Le Flore. cutt, 7 Okla. Crim. Rep. 213, 123 Pac. It will be noted that in the form179; Tracy v. State, 9 Okla. Crim. Rep. er information the charge was based 532. 132 Pac. 692.

upon the liquor being capable of use

as a beverage, and that it con- request denied, whereupon the detained more than ; of 1 per cent of fendant introduced Bill Madell, who alcohol. In the latter, the informa- testified that he knew Dave Le Flore tion simply charges the sale of in- and was with him several times durtoxicating liquor.

ing the day he purchased the Vina The testimony offered by the state Vita from the Estes drug store; was from one witness, Dave Le that Bill Purcell was also with him; Flore, the party to whom the sale that Dave Le Flore was drunk that was made. He testified that he morning; came in drunk from his lived 3 miles southeast of Benning- home; that he telephoned him the ton, in Bryan county; that he has night before that he would bring known T. J. Estes for eight or nine some whisky, but did not bring it; years; that in December, 1913, he that the next morning after the sale bought some patent medicine from is alleged to have been made he saw him, known as Vina Vita; that three the prosecuting witness, and he had bottles were purchased by him, and about a half quart of whisky, and two bottles by another party for was drinking it before he purchased him; that he drank two and a half the Vina Vita. Witness testified bottles of the five; that they were all that he had drunk Vina Vita, and labeled alike; that he did not drink that it would not make him drunk. anything else that day, and that but that it would make him sick if these two and a half bottles made he drank enough of it; that he could him dizzy; made him crazy; that he not drink very much of it. had been drunk a good many times; John Smith testified on behalf of that he did not know how long he the defendant that he knew the prosstayed in town after drinking the ecuting witness, Dave Le Flore, and contents of the bottles; that the was with him on the morning that town marshal told him he had better the sale is alleged to have been go home; that he was twenty-five made, and that he was drinking be

; years old, and did not know how

fore he got to town. many times he had been drunk; Bill Purcell, who was introduced that he had been drunk sometimes in rebuttal by the state, testified every two or three weeks, and

that he drank some of the Vina Vita sometimes not so often, and some

in question, and in response to the times a little more often; that he had

a not been drinking any whisky upon

question, "What effect, if any, did it the date in question, nor upon the

have on you ?” he answered, "Sick, night before. Bill Madell and Bill

and dizzy about the head." Purcell drank some of the liquor

A number of assignments of ercontained in the bottles. Witness

ror are urged in the brief. A disdenied having any whisky, but ad

cussion of one, however, will dismitted that he telephoned Madell

pose of this controversy. That is he had whisky, but says that he

based upon the proposition that the called the concoction purchased

state has failed to make a case suffrom defendant whisky; that he was ficient to warrant a conviction. not drinking nor drunk when he It will be remembered that the bought these bottles; that this Vina amended information charged the Vita made him sick, and that he defendant with the sale of intoxivomited after he got home; that he icating liquor or compound. In could not describe the feeling and order to sustain the information, sickness.

the words, "or compound," will be At the close of this testimony a treated as surplusage. The infordemurrer to the evidence was inter- mation, therefore, charges the sale posed, and the defendant requested of intoxicating liquor, and the proof the court to advise the jury to re- shows that the same was a comturn a verdict of not guilty. The pound, which is also a liquor, comdemurrer was overruled, and the monly kept in drug stores over the