Logi v. State

• Decision Date: 01 May 1922
• Docket Number: 337
• Citation: 240 S.W. 400,153 Ark. 317
• Parties: LOGI v. STATE
• Court: Arkansas Supreme Court

240 S.W. 400

153 Ark. 317

LOGI v. STATE

No. 337

Supreme Court of Arkansas

May 1, 1922

Appeal from Sebastian Circuit Court, Greenwood District; John Brizzolara, Judge; reversed.

Judgment reversed and cause remanded.

Holland & Holland, for appellant.

J S. Utley, Attorney General; Elbert Godwin and W. T Hammock, Assistants, for appellee.

OPINION

HART, J.

Antone Logi was indicted for the crime of manufacturing alcoholic, vinous, malt, spirituous or fermented liquors contrary to the provisions of sec. 6160 of Crawford & Moses' Digest. From the judgment of conviction he has duly prosecuted an appeal to this court.

It is earnestly insisted by counsel for appellant that the evidence is not sufficient to warrant the verdict, and we think that in this contention counsel are correct.

The chief witness for the State was John T. Tisdale, a prohibition enforcement officer. According to his testimony, he searched the dwelling house of appellant for intoxicating liquors in May, 1921. There was a cellar in the yard with a chicken coop over the top of it. Two barrels of "choc beer" were found in the cellar or hole in the ground. One of the barrels was nearly full, and the other was about two-thirds full. They had pipes running from them to a cellar under the house. Both barrels were filled with a liquor called "choc beer," and it is intoxicating. The officer also found one carton containing four yeast cakes and a full carton containing six cakes. They were labeled "Yeast Foam" and were such as you buy out of a store. The officer also found two packages of hops and some sugar. He said that "choc beer" would ordinarily ferment in four days unless the weather was very cold. If it is exposed to air it will soon deteriorate, but if kept air-tight it would remain in kegs for fifteen or twenty days or perhaps ninety days. The "choc beer" in question appeared to have been covered up in the hole or cellar for about three weeks. The barrels had sacks over them and boards over the sacks. Then there was a piece of tin roofing over the boards and a chicken coop was set over it.

According to the testimony of appellant, he had bought the "choc beer" from John Loraine for his own use and had placed it in his cellar to preserve it. He had never engaged in the manufacture of any kind of intoxicating liquors and had never been interested therein. John Loraine hung himself a short time after he sold appellant the "choc beer."

Another witness, who was disinterested, testified that he saw John Loraine bring the two barrels of "choc beer" to the home of appellant and leave them.

The fourteen-year-old daughter of appellant was also a witness for him. According to her testimony the yeast cakes were used to make bread by her mother. There were also two little bunches of hops there, and her mother used them to make yeast.

The court correctly told the jury that the mere possession of the "choc beer" by appellant was not sufficient to convict him of manufacturing malt or intoxicating liquor.

It is insisted, however, that the possession of the hops and the yeast was sufficient to warrant the jury in finding him guilty.

Malt liquor is defined as a general term for an alcoholic beverage produced merely by the fermentation of malt, as opposed to those obtained by a distillation of malt or mash. Sarlls v. United States, 152 U.S. 570, 38 L.Ed. 556, 14 S.Ct. 720.

It will be noted that only a small amount of hops and yeast cakes were found at the home of appellant and these were only in such quantities as would naturally be used by a housewife in cooking. It is true that yeast is used to produce the fermentation of malt, but it was not shown that appell...