State v. Durr
| Decision Date | 25 April 1911 |
| Citation | 71 S.E. 767,69 W.Va. 251 |
| Parties | STATE v. DURR. |
| Court | West Virginia Supreme Court |
Submitted January 31, 1911.
Syllabus by the Court.
In defense of an indictment for selling intoxicating drinks, the article sold being labeled "Temperance Beer," the defendant has right to show that it is not intoxicating.
Upon trial of an indictment for selling intoxicating drinks, if the evidence show a sale of beer, the state has made a prima facie case for conviction, and need not give evidence that the beer is intoxicating; but the defendant may give evidence to prove that the beer sold is not intoxicating.
Error to Circuit Court, Randolph County.
E. W Durr was convicted of selling intoxicating liquors, and brings error. Reversed and remanded.
J. L Wamsley, C. H. Scott, James Coberly, and W. E. Baker, for plaintiff in error.
Wm. G Conley, Atty. Gen., and H. G. Kump, Pros. Atty., for the State.
An indictment charged E. W. Durr with selling, without license spirituous liquors, wine, porter, ale, or beer, and drinks of like nature. He was found guilty by a jury, and judgment for $50 fine and 60 days' imprisonment was rendered against him.
On the trial the evidence was that he sold a drink called and labeled "Temperance Beer." The defendant offered to give evidence, by persons who knew and had drunk and tested it, that it was not intoxicating, and that the stomach could not contain enough of it to produce intoxication. The court rejected the evidence proposed. The argument of the prosecution is that beer is specifically named in Code 1906, c. 32, § 1, as a prohibited drink; that the sale of beer is unlawful without license, and no proof of its intoxicating character is required; that when once it is shown that beer is unlawfully sold the offense is proven, and there can be no evidence by the defendant that it is not intoxicating. I do not conceive that the word "temperance" before the word "beer" is material, any more than would be the word "apple" before the word "brandy." Whisky, brandy, gin, rum, and some other liquors are, by judicial cognizance, known to be intoxicating, and no proof that they are is required; nor is any evidence admissible to the contrary, when it has been proven that such liquors have been sold. 23 Cyc. 61. But we have the question in this case whether beer stands on like ground, though specified in the statutes. Is it, like whisky, to be held conclusively intoxicating? Where the thing sold is not by judicial cognizance known to be intoxicating, it must be proven to be so. "If the liquor be not judicially known as a prohibited liquor, then it must be alleged that it is an intoxicating, spirituous, distilled, malt, fermented, alcoholic, or vinous liquor, if the terms used in describing it are not judicially noticed as being descriptive of such liquor, and these allegations established by proof." Woollen & Thornton on Intoxicating Liquors, § 78. Where whisky, brandy, or other known spirituous liquor is sold, it is not necessary to allege that the particular liquor was sold, because our statute prohibits sale of spirituous liquors, and, such drinks being known to be spirituous, it is not necessary to prove their character.
The cases of State v. Gillispie, 63 W.Va. 152, 59 S.E 957, and State v. Good, 56 W.Va. 215, 49 S.E. 121, and State v. Cool, 66 W.Va. 86, 66 S.E. 740, are not authority on the question before us; that is, can the defendant, selling beer, prove that it is not intoxicating? They do hold that, as to drinks not mentioned in the statute, such defense may be made; they do hold that, as to such drinks, intoxicating quality is the test. They involved drinks called "malt," "senoj cider," and "rikk," not by name mentioned in the statute, and not judicially known to be spirituous and intoxicating, and in such cases the intoxicating quality is the test, and open to proof on both sides; but in this case we have the sale of beer, a drink prohibited by name in the statute, and prima facie intoxicating. We hold that, when it is proven that a liquor called "beer" has been sold, the case is proven prima facie; but, as all beers are not intoxicating, the defense that it is not is admissible. Woollen & Thornton on Intoxicating Liquors, § 76, says: ...
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