Edwards v. City of Gulfport

• Decision Date: 14 June 1909
• Docket Number: 13,966
• Citation: 95 Miss. 148,49 So. 620
• Court: Mississippi Supreme Court
• Parties: HARRY EDWARDS v. CITY OF GULFPORT

49 So. 620

95 Miss. 148

HARRY EDWARDS v. CITY OF GULFPORT

No. 13,966

Supreme Court of Mississippi

June 14, 1909

FROM the circuit court of Harrison county, HON. WILLIAM H. HARDY Judge.

Edwards appellant, was convicted in the court below of unlawfully selling intoxicating liquors and was sentenced to pay a fine and suffer imprisonment for thirty days; and appealed to the supreme court.

Appellant as an attraction to his pool-room business in Gulfport habitually sold to his customers and to the public generally different beverages among which was a concoction known and labeled as "Pabst's Mead." A policeman of the city purchased from appellant at his place of business two bottles of the concoction, and the chief of police sent one of the bottles to Peterson, an expert chemist. Appellant, having been arrested on the charge of illegally selling intoxicating liquors, was tried and fined in the municipal court and appealed to the circuit court. On his trial in the circuit court Peterson, the chemist, testified as stated in the opinion of the court.

Affirmed.

J. H. Mize, for appellant.

The first instruction for the state was erroneous. Through this instruction the court below charged the jury that it was immaterial whether the mead was intoxicating or non-intoxicating provided they should believe from the evidence beyond every reasonable doubt that it was a malt or alcoholic liquor. The instruction given the jury was no guide by which to determine whether or not the mead in question was a malt liquor or an alcoholic liquor. The correct procedure would have been for the instruction to allege the constituent requirements of a malt or alcoholic liquor and then leave it to the jury to say, under the facts, whether or not a malt or alcoholic liquor had been sold.

The court below further erred in refusing the second instruction asked by appellant. This refused instruction in effect charged that the appellant should be acquitted unless the city in the prosecution of the case proved beyond every reasonable doubt that the liquors in question when drunk to excess would produce intoxication. The court below in refusing this instruction denied the principle for whch appellant contended, namely that an alcoholic or malt liquor is a liquor containing alcohol or malt in sufficient quantities to produce intoxication in one who drinks the liquor to excess. It is not the law that for liquor containing an infinitesimally small trace of alcohol or malt in its composition is an alcoholic or malt liquor within the meaning of Code 1906, § 1746. Bay Co. v. State, 48 So. 428.

The case of Reyfelt v. State, 73 Miss. 416, is not in conflict with this decision. While the legislature intended to prohibit the sale of wine, as passed upon in the Reyfelt case, supra, it did not intend this prohibition to extend to a beverage which might contain so very small a percentage of wine as not to be in fact wine. It would not be a violation of law for a man to sell a beverage from a ten gallon demijohn into which a pint of home-made blackberry wine had been poured, provided the beverage contained no other elements which would produce intoxication when drunk to excess, since common sense would indicate that such a beverage was not wine. For the same reason we do not think it a violation of the law to sell any part of a vat of liquid containing so small a percentage of malt or alcohol as not to produce intoxication even when drunk to excess.

A malt liquor, according to Allred v. State, 89 Ala. 102, 8 So. 56, is a result or product of a process by which grain--usually barley--is steeped in water to the point of germination, and the starch of the grain is thus converted into saccharine matter which is kiln-dried, then mixed with hops and by a further process or brewing made into a beverage.

An examination of Code 1906, § 1746, will show that the legislature named the kinds of liquors forbidden thereby to be sold, and then added a final and comprehensive clause, to wit: "All other drinks which, if drunk to excess, will produce intoxication." This last clause qualifies all the preceding clauses of the statute.

It was error in the court below to allow the cause to go to the jury without the jury's knowledge of what a malt or an alcoholic liquor was; hence, the judgment of the court below should be reversed. Marks v. State, 48 So. 864.

J. L. Heiss, for appellee.

There was no error in the action of the court below in permitting Dr. Peterson to testify concerning the contents of the letter sent to him in the box with the bottle of mead. 17 Cyc. 483.

The instructions complained of by complainant are not erroneous under the circumstances of this case.

The purpose of Code 1906, § 1746, is to prevent intoxication by forbidding the sale of beverages which may produce intoxication. The question to be determined in a case like this is not whether the liquor which was sold had actually produced intoxication, but instead, whether, if drunk to excess, it would produce intoxication. The legislature in enacting Code 1906, § 1746, did not leave it to the jury to decide the question of how much alcohol is required to be in a beverage before it can be adjudged an intoxicant when drunk to excess. Instead of this the legislature absolutely declared that certain liquors, among them vinous, malt or alcoholic liquors, shall not be sold as a beverage.

From the testimony of the expert Peterson it is manifest that the conviction was proper. His testimony showed the liquor to be both an alcoholic and a malt liquor. And his testimony further stated that the liquor contained enough alcohol to make the average man drunk if he absorbed two bottles. Reyfelt v. State, 73 Miss. 415, 18 So. 925.

Argued orally by R. V. Fletcher, for appellant, and by George Butler, assistant attorney- general, for appellee.

OPINION

WHITFIELD, C. J.

The indictment in this case charged the unlawful sale of intoxicating liquors. On the trial Peterson, the expert, testified to three facts: First, that the liquor in question, called "Pabst's mead," was an alcoholic liquor, containing four and six-tenths per cent. of alcohol to each bottle; second, that it was a malt liquor; and, third, that two bottles of it, if drunk, would intoxicate any average man. These facts, if believed by the jury, warranted appellant's conviction on the testimony beyond any reasonable doubt.

The only contention which has any merit here arises upon the instructions. The first instruction for the state is in these words: "The court instructs the jury that it is not for them to say whether the liquid sold was intoxicating provided they believe from the evidence beyond every reasonable doubt that the liquid sold on the 11th day of January, 1909, was a malt or alcoholic liquor; and if they so...