Blatz v. Rohrbach

• Decision Date: 26 November 1889
• Citation: 22 N.E. 1049,116 N.Y. 450
• Parties: BLATZ v. ROHRBACH.
• Court: New York Court of Appeals Court of Appeals

116 N.Y. 450

22 N.E. 1049

BLATZ

v.ROHRBACH.¹

Court of Appeals of New York, Second Division.

Nov. 26, 1889.

Appeal from supreme court, general term, second department.

L. L. Van Allen, for appellant.

Charles H. Noxen, for respondent.

BROWN, J.

The plaintiff is the widow of William T. Blatz, who committed suicide by hanging while in a condition of intoxication. The action is brought under the statute known as the ‘Civil Damage Act,'³ and the plaintiff had a verdict at the circuit, which was affirmed at the general term.

The undisputed proof on the trial showed that Blatz spent the evening preceding his death in the defendant's saloon, and that while there he drank two or three glasses of beer. The court charged the jury that he drank intoxicating liquors that evening at defendant's saloon. The exception taken to this part of the charge raises the only question that it is necessary to discuss on this appeal, and we are called upon to decide whether the term ‘beer,’ in the absence of all evidence as to its quality and effect, imports an intoxicating beverage. ‘Beer,’ as it is ordinarily understood, and as it is defined in the dictionary, is a ‘fermented liquor.’ It is made from malted grains, with hops, or from the extract of roots and other parts of various plants, as spruce, ginger, sassafras, etc. It is known under various names, and designated as ‘ale,’ ‘porter,’ ‘stout,’ ‘strong beer,’ ‘small beer,’ ‘lager’ ‘spruce beer,’ etc. The courts take notice that many of the beverages sold under the name of ‘beer’ are not intoxicating, while the stronger kinds, as ale, porter, and strong beer, are of an intoxicating character. Nevin v. Ladue, 3 Denio, 437-450;Rau v. People, 63 N. Y. 277. It would seem, therefore, that a term which included both intoxicating and non-intoxicating liquors could not be said, in its ordinary meaning, necessarily to imply an intoxicating drink, unless such import has been given to it either by statute or by the decision of the courts. The word was first introduced into our present excise law in 1873, c. 549, which prohibited the sale without license, in quantities less than five gallons, of strong and spirituous liquors, wines, ale, and beer. The expressed purpose of the statute was to regulate the sale of intoxicating liquors. Since the enactment of that law, this court decided, in Rau v. People, supra, that lager-beer could not be held to be an intoxicating liquor, without proof of that fact. It was there said: ‘As to such well-known beverages as whisky, brandy, gin, ale, and strong beer, the courts, without proof, acting upon their own knowledge, derived from observation, will take notice that they are intoxicating, and will, therefore, require no proof of the fact. But there are, doubtless, intoxicating beverages which are not so well known, and of whose character the courts could not take notice, and more intoxicating beverages may yet be discovered. As to all such, when one is charged with selling them in violation of law, there must be proof that they are intoxicating before a conviction can be had. Hitherto the courts have not been willing to take notice that lager-beer is intoxicating, but have submitted the question, when controverted, to the jury, to be determined upon the evidence.’ The use of the word in the statute is in entire harmony with the views expressed in the case cited. The legislature recognized the fact, of the existence of which courts take judicial notice, that fermented liquor may or may not be intoxicating. Some of it is, and some of it is not. The sale of the former was forbidden, not so as to the latter. Proof could always be given on a prosecution for violation of the law as to the character and effect of the particular drink sold under the name of ‘beer,’ and thus the law would be executed. It plainly was not the intention of the legislature to prohibit the sale of the numerous kinds of mild drink sold under the name of ‘beer,’ and I think it may be affirmed that the term, as now used, if it imports any particular beverage, is generally understood to refer to ‘lager.’ This construction gives full effect to the law, and, under this expansive meaning of the word, the sale of all fermented liquors which are shown to be intoxicating will be regulated. To adopt the contrary view will violate the cardinal rule which is applied in all criminal prosecutions, viz., that the prosecution must prove every fact essential to establish the guilt of the person charged with a crime. The fact of the sale of intoxicating liquor must be established. As to strong and spirituous liquors, the courts take notice of their intoxicating character, and that stands in lieu of evidence. But, as to the milder kinds of drink, proof of their intoxicating character must be adduced. If, therefore, on the trial, on proof of the sale of beer, without any evidence as to its character or quality, the jury is to be instructed that it is of the kind that intoxicates, the court assumes a fact not proven, and the burden of showing that it is of a non-intoxicating character is put on the defendant. As well might a person by convicted of grand larceny by proof of the theft of a watch, or of burglary in the first degree by proof of the breaking into an inhabited dwelling. But, as in the first-named offense the value of the watch is an essential ingredient of the crime, and in the second it is necessary to prove that the offense was committed in the night-time, so, with the sale of beer, it must be shown that it was of an intoxicating character; otherwise, there has been no violation of the law. The court can indulge in no presumption in the case, except as to the innocence of the accused; and, until it appears by sufficiency of proof that the particular beverage sold was of an intoxicating kind, the presumption of innocence controls the case. This rule applies not only to prosecutions distinctly criminal, but to penal actions, where the plaintiff seeks to charge the adverse party with a penalty or forfeiture, and is particularly applicable in an action like the present, where the consequences may be as disastrous to a defendant as they appear to have been in this case. It is said, however, that by the decision of the courts it has been decided that the word imports an intoxicating beverage. The only case that so holds, that I have been able to find, is People v. Wheelock, 3 Park. Crim. R. 9, which was a decision of the general term of the seventh district in 1855. The decision is based upon Nevin v. Ladue, 3 Denio, 43, and same case in error, page 437, and on the definition of the word in Webster's Dictionary.

In Nevin v. Ladue, the defendant was charged with selling ‘ale, strong beer, or fermented beer,’ and admitted the sale, but claimed that it was not prohibited by statute. The supreme court affirmed the conviction on the authority of the definition of the word ‘beer’ in Webster's Dictionary, which was said in the opinion to be ‘a spirituous liquor, made from grain,’ etc. It may be that the early edition of Webster's Dictionary so defined the word, but the later editions do not describe beer as a spirituous liquor, but as a ‘fermented liquor.’ Worcester's Dictionary gives the same definition to the word. This decision was reversed by the court of errors on the ground that the admission of a charge made in the alternative imputed nothing more than that the defendant had sold ‘fermented beer,’ and that that term, in the connection in which it was used, covered various kinds of beer, which had long been in sue in this country, under the different names of ‘spruce beer,’ ‘ginger beer,’ etc., which had never been considered as intoxicating, either here or in England. There is nothing in the report of the case to show that the court concurred in the views of the chancellor on the meaning of the word ‘beer.’ Three other opinions were delivered, in all of which it was maintained that the question whether ale or strong beer was within the prohibition of the excise laws did not arise in the case; and the case is an authority for nothing more than that an admission of selling ‘fermented beer’ was not a violation of the statute against selling strong and spirituous liquors. Any attempt to distinguish between ‘beer’ and ‘fermented beer’ would, I think, be a failure. Beer is a fermented liquor; and, unless the particular beverage under consideration is a fermented liquor, it is not beer. Strong beer, small beer, and ale were always, here and in England, recognized as intoxicating drinks, as is shown by the very interesting opinion of the chancellor in the case cited, but the term ‘fermented beer’ or ‘beer’ includes them all, and many more, besides, that are not intoxicating. The decision in People v. Wheelock is not, therefore, sustained by the authorities cited to support it. In Commissioners v. Taylor, 21 N. Y. 173, the defendant was charged with selling ‘strong beer,’ and this court held it within the meaning of the term ‘strong and spirituous liquors.’ People v. Wheelock was cited and referred to in the opinion, but I do not understand that it received the approval of the court. Indeed, the opinion recognizes the rule laid down in Rau v. People, supra, that a...