City of Topeka v. Heberling

• Court: Kansas Supreme Court
• Writing for the Court: SMITH, J.
• Citation: City of Topeka v. Heberling, 134 Kan. 330, 5 P.2d 816 (Kan. 1931)
• Decision Date: 12 December 1931
• Docket Number: 30142.
• Parties: CITY OF TOPEKA v. HEBERLING.

5 P.2d 816

134 Kan. 330

CITY OF TOPEKA v. HEBERLING.

No. 30142.

Supreme Court of Kansas

December 12, 1931

Syllabus by the Court.

Instruction that "home brew" containing more than certain percentage of alcohol would be considered intoxicating held not to invade province of jury.

An instruction in a trial for the possession of intoxicating liquor, which stated, among other things, that a liquid called "home brew," containing more than 3 or 4 percent. of alcohol, would be considered as intoxicating, was not improper because it invaded the province of the jury.

Appeal from District Court, Shawnee County, Division No. 2; George H. Whitcomb, Judge.

Criminal prosecution by the City of Topeka against W. H. Heberling for the possession of intoxicating liquor in violation of an ordinance. From a judgment of conviction in the district court, on appeal from a conviction in the police court defendant appeals.

A. D Weiskirch, Jr., of Topeka, for appellant.

W. E Atchison and Henry D. Dangerfield, both of Topeka, for appellee.

SMITH J.

In this action defendant was convicted of having intoxicating liquor in his possession in violation of an ordinance of the city of Topeka. From this conviction he appealed to the district court, where he was again convicted. From the latter conviction he appeals.

The facts are that the police of Topeka raided the residence of appellant. They found and seized forty-two pints of a liquid which is referred to in both briefs as "home brew." Appellant's defense was that this particular home brew had just been made when the raid occurred, and had not yet become intoxicating. A chemist testified for the city that he had tested the liquor, and it contained 4.9 percent. of alcohol.

The trial court gave the following instruction to the jury "A liquid such as that offered in evidence in this case, and called 'home brew', is an intoxicating liquor within the meaning of the city ordinance when it may be taken in sufficient quantity to produce intoxication, when used as a beverage. Such a liquid, when containing three or more percent of alcohol would be considered as intoxicating. You will bear in mind that one of the claims of the defendant is that the 'home brew' when taken possession of by the officers, was not intoxicating, but if intoxicating at all at any time, became so after the same was taken from the possession of the defendant. If, therefore, you find that the 'home brew' was not intoxicating at the time seized by the officers, although it became so afterwards, then you...