Myers v. State

• Decision Date: 21 February 1884
• Docket Number: 11,322
• Citation: 93 Ind. 251
• Parties: Myers v. The State
• Court: Indiana Supreme Court

93 Ind. 251

Myers v. The State

No. 11,322

Supreme Court of Indiana

February 21, 1884

From the White Circuit Court.

The judgment is affirmed, with costs.

D. D Dale, -- Stanford, and D. Turpie, for appellant.

F. T Hord, Attorney General, R. Gregory, Prosecuting Attorney, and W. B. Hord, for the State.

OPINION

Niblack J.

Indictment against Frank Myers in two counts. The first count charged a sale to Theodore Fickey of intoxicating liquors on Sunday, to be drunk as a beverage. The second count charged the giving of intoxicating liquor to Fickey on Sunday, to be drunk in the same way. Upon a trial by the court, the defendant was found to be guilty of the offence charged in the second count of the indictment, and, in disregard of a motion for a new trial, was adjudged to pay a fine of ten dollars and costs.

Fickey was the only witness examined at the trial. He testified that Myers kept a saloon in the town of Reynolds in White county; that he, witness, with several others, was in Myers' saloon on a Sunday within the time covered by the indictment; that he called for "beer"; that Myers set out a glass of beer for him, and he drank it; that Myers drew the beer from a large keg in the saloon; that the beer frothed and foamed up, and was of a dark color in part, and of a lighter color in other respects; that he did not know what particular kind of beer it was, and could not say that it was an intoxicating drink; that he had never been drunk on beer, and did not know that it was an intoxicating beverage; that he had always supposed that whiskey was the only thing that would make a man drunk; that he did not know that the beer he drank on the Sunday referred to affected him in any way, but it might have done so a little; that he did not pay for the beer he drank at that time, and did not see any one else pay for it.

It is claimed that the finding of the court was not sustained by the evidence, and that for that reason a new trial ought to have been granted.

The objection urged against the sufficiency of the evidence is that it was not shown, even by the most remote inference, that the beer given to, and drank by, Fickey was an intoxicating drink, and, in support of this objection, several cases are cited as holding that this court will not take judicial notice of the fact that beer of any kind is an intoxicating beverage.

The act of March 17th, 1875, on the subject of the sale of intoxicating liquor, which, with some amendments, is still in force, contains a provision that "The words 'intoxicating liquor' shall apply to any spirituous, vinous, or malt liquor, or to any intoxicating liquor whatever, which is used or may be used as a beverage." R. S. 1881, section 5313.

Webster defines beer to be "A fermented liquor made from any malted grain, with hops and other bitter flavoring matters." In other words, it is a malt liquor, which the same author declares to be "a liquor prepared for drink by an infusion of malt, as beer, ale, porter, etc." It may, therefore, be said that beer is a liquor infused with malt, and prepared by fermentation for use as a beverage. As a consequence when "beer" is called for at a place at which intoxicating drinks are sold, the bartender, having in view the primary meaning, as well as the common use of the word, is justified in inferring and must reasonably infer that malted and fermented beer is wanted. If any other kind of beer is desired, it is expected that qualifying words will be used, such as spruce beer, root beer, small beer, ginger beer, and the like, thus attaching a remote and secondary meaning to the word "beer," as descriptive of particular...