Jones v. United States
| Decision Date | 25 March 1927 |
| Docket Number | No. 7440.,7440. |
| Citation | 18 F.2d 573 |
| Parties | JONES v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
William Pfeiffer, of Oklahoma City, Okl., for plaintiff in error.
Roy St. Lewis, U. S. Atty., of Oklahoma City, Okl. (Leslie E. Salter, Asst. U. S. Atty., of Oklahoma City, Okl., on the brief), for the United States.
Before STONE and VAN VALKENBURGH, Circuit Judges, and SYMES, District Judge.
The plaintiff in error, Jones, appeals from a conviction for the unlawful possession and the unlawful sale of intoxicating liquors, to wit, alcohol, on May 2, 1925. The only witness called by either side, W. N. Dodge, testified for the government that he called the defendant Jones at his home on the telephone and stated that he wanted a gallon of alcohol, which the defendant agreed to deliver. A short time thereafter the defendant brought a gallon of alcohol to Dodge at the latter's drug store, and received $15 in payment.
The first or possession count charged that the defendant "did then and there knowingly, willfully, and unlawfully have in his possession and under his control intoxicating liquor, to wit, alcohol, contrary to the form of the statute," etc., and the second or sales count alleged that the defendant "did then and there knowingly, willfully and unlawfully sell and deliver to W. N. Dodge intoxicating liquor, to wit, alcohol."
The first assignment of error is that the court erred in overruling the defendant's demurrer to these counts, because they failed to charge that the alcohol mentioned was for use for beverage purposes. There is no merit in this argument. It is well settled that the court may take judicial notice of the fact that whisky, brandy, alcohol, etc., are intoxicating liquor. Neither is it necessary in an information to anticipate or negative possible defenses such as that of lawful possession. Keen v. U. S., 11 F.(2d) 260; Massey v. U. S. (C. C. A.) 281 F. 293. Further, there was direct evidence by the purchaser, an experienced druggist, that what the defendant sold him was grain alcohol, and not denatured; that he and his friends used it as a beverage; and that it was, in fact, intoxicating.
A point is made of the fact that the government witness, Dodge, would not say that the alcohol was intoxicating when delivered to him. He testified that he diluted it about 50 per cent. with cherry syrup and water before consuming it. But if, as the witness testified, it was then intoxicating, we may assume...
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