Briffitt v. State

• Decision Date: 31 May 1883
• Parties: BRIFFITT v. STATE OF WISCONSIN.
• Court: Wisconsin Supreme Court

58 Wis. 39

16 N.W. 39

BRIFFITT

v.STATE OF WISCONSIN.

Supreme Court of Wisconsin.

Filed May 31, 1883.

Error to circuit court, Columbia county.J. H. Rogers, for plaintiff in error, George Briffitt.

L. F. Frisby, Atty. Gen., for defendant in error, the State of Wisconsin.

ORTON, J.

The complaint before the justice was that the defendant had sold “intoxicating liquors” without first having obtained a license therefor. The case was appealed to, and finally tried in, the circuit court. The only question really presented by the exceptions, either to the evidence or to the charge of the court to the jury, is whether proof that the defendant had sold beer was sufficient proof that he had sold malt or intoxicating liquor. In ruling upon a question of evidence the court said, “I suppose everybody knows what is meant by beer.” When the question was asked whether malt is used in ordinary beer, the court said: “I do not think it is necessary. I think a man must be almost a driveling idiot who does not know what beer is. I do not think it necessary to prove what it is.” The charge of the court on the same subject was substantially of the same import. It was proved that the defendant had sold “beer.” There was some proof tending to show that the beer sold had an exhilarating effect, and that it was such beer as was brewed in large breweries of the state. But such evidence scarcely rendered the above ruling immaterial, if it was necessary to prove that the beer sold was either malt or intoxicating liquor, because it was clearly insufficient for that purpose. The statute (section 9, c. 332, Laws 1882) makes the proof of the sale of any malt liquor, proof of the sale of intoxicating liquor. The case, so far as the evidence is concerned, is outside of this statute; for it was neither charged nor proved that malt liquor was sold by name, and it may as well be assumed, and could have been as easily proved, that it was intoxicating liquor, as malt liquor. The question, therefore, remains, without the aid of the statute, whether it is implied in the word “beer” that it was either malt or intoxicating. The statute of New York was the selling without license of any “strong or spirituous liquors,” or any wines, etc.

In Nevin v. Ladue, 3 Denio, 437, the question was whether ale, porter, and strong beer were included in the term “strong liquors,” and it was held, without proof, that they were so included. The learned chancellor wrote an opinion giving one of the most learned essays upon the composition and use of malt liquors ever written. The subject is treated scientifically, philosophically, historically, and geographically, and the opinion is well worthy of reference and reading; but it is not necessary to reproduce it here further than to say that it is shown that malt liquor, as ale or beer, was made and used as a beverage before the time of Herodotus, and has continued to be made and used all along down the ages, and in various countries, until the present time. At the present time we all know that this malt liquor, under the generic name of “beer,” is made and used in most of European countries, and in our own, and is a common beverage. As long as laws for licensing the sale of intoxicating liquors have existed, brandy, whisky, gin, rum, and other alcoholic liquids have been held to be intoxicating liquors per se; and why? Simply because it is within the common knowledge and ordinary understanding that they are intoxicating liquors. By this rule of common knowledge courts take judicial notice that certain things are verities, without proof; as, in Chambers v. George, 5 Lit. 335, the circulating medium in popular acceptation was held to mean “currency of the state,” and in Lampton v. Haggard, 3 Mon. 149, the circulating medium was held to mean “Kentucky currency;” and in Jones v. Overstreet, 4 Mon. 547, the word “money” was held to mean paper currency. If a witness on the stand were asked whether whisky is intoxicating, he would be apt to smile as at a joke, and an intelligent witness, when asked the same question in relation to beer, might smile with equal reason. Words in contracts and laws are to be understood in their plain, ordinary, and popular sense, unless they are technical, local, or provincial, or their meaning is modified by the usage of trade. 1 Greenl. Ev. § 278.

When the general or primary meaning of a word is once established by such common usage and general acceptation, we do not require evidence of its meaning by the testimony of witnesses, but look for its definition in the dictionary. Whisky, according to Webster, is “a spirit distilled from grain;” and beer, according to the same authority, is “a fermented liquor made from any malted grain, with hops and other bitter flavoring matter.” It is true that, to a limited extent, there are other kinds of beer, or of liquor called beer, such as small beer, spruce beer, ginger beer, etc.; but such definitions are placed as remote and special, and not primary or general. So it may be said of other substances having a common name and meaning, such as milk or tea. Milk, according to Webster, is “a white fluid secreted by female mammals for the nourishment of their young.” There are other kinds of milk, however, such as “the white juice of plants,” which is the remote definition; or milk in the cocoanut, or that in the milky-way. Tea is defined to be ...