State v. Henry
| Decision Date | 07 April 1914 |
| Citation | 74 W.Va. 72,81 S.E. 569 |
| Parties | STATE. v. HENRY. SAME. v. POMEROY et al. SAME. v. BURNSIDE. |
| Court | West Virginia Supreme Court |
(Syllabus by the Court.)
Proof of sales of "Bevo" and "Temperance Malt, " without a state license therefor, if proven to be drinks of like nature to spirituous liquors, wines, porter, ale and beer, and to be intoxicating in the common acceptation of that word, may be given in evidence under an indictment charging defendant in the language of the statute, with the unlawful sale, offer and exposure for sale of spirituous liquors, wines, porter, ale and beer, and drinks of like nature; and a count charging such drinks to be intoxicating is unnecessary.
[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. §§ 263-274; Dec. Dig. § 223.*]
An instruction to the jury "that in order to make any fluid or liquid an intoxicating drink, it must be capable of producing intoxication, in the usual sense and common acceptation of the term intoxication; that is it must have in it a sufficient amount of alcohol to produce intoxication when consumed in sufficient quantities, " properly propounds the law in such cases, and it was not error to reject other instructions propounding a different rule of liability.
[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239.*]
This court will not on review of a judgment of conviction in such cases, disturb a verdict found by the jury on conflicting evidence as to whether "Bevo" or "Temperance Malt" is capable of producing intoxication as defined in said instruction.
[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.*]
Error to Circuit Court, Lewis County. S. M. Burnside, Hi Henry, and Ed. Pomeroy and others were severally indicted and convicted of violating the intoxicating liquor law, and bring error. Affirmed.
Brannon & Stathers, of Weston, for plaintiffs in error.
A. A. Lilly, Atty. Gen., John B. Morrison and J. E. Brown, Asst. Attys. Gen., and Chas. P. Swint, of Weston, for the State.
MILLER, P. The indictment in each case contains two counts, and are alike, except that the second count in the Burnside case, in addition to charging the unlawful sale, offer and exposure for sale of certain malt drinks commonly called "Bevo, " adds, "and Temperance Malt, " being "drinks of a like kind and nature to spirituous liquors, wines, porter, ale and beer." The first counts charge that defendants "without having obtained a state license therefor, as required by law, did unlawfully sell, offer and expose for sale, spirituous liquors, wines, porter, ale, beer and drinks of a like nature."
We will consider only such of the errors assigned as are argued and relied on here, treating the others as abandoned.
The demurrers to the indictments and each count thereof were overruled. The first counts are concededly good; but it is said the second counts are bad for failure to allege, in addition to what is alleged that "Bevo" and "Temperance Malt" are in fact drinks which will produce intoxication. We need not bother about this question. Our cases hold that evidence of the sale, offer or exposure to sale of any mixture or liquids which will produce intoxication, is admissible under an indictment charging, as the first count in each case does, the unlawful sale, offer and exposure for sale of spirituous liquors, wines, porter, ale, beer and drinks of a like nature. State v. Good, 56 W. Va. 215, 49 S. E. 121; State v. Gillispie, 63 W. Va. 152, 59 S. E. 957. True Judge Brannon, in State v. Durr, 69 W. Va. 251, 71 S. E. 767, 46 L. R. A. (N. S.) 764, arguendo, quotes Woollen and Thornton on Intoxicating Liquors, section 78, to the effect that if the liquor be not judicially known as a prohibited liquor, then it must be alleged that it is an intoxicating liquor; which would be true perhaps under our law, if the indictment alleged a sale of a liquor, mixture or liquid not so judicially known as a prohibited liquor. But Judge Brannon evidently did not have the question of pleading before him in that case, and did not mean to imply that proof of the intoxicating character of the liquor sold would not be admissible under an indictment charging, as the first counts in these indictments do, a sale of spirituous liquors contrary to law. It was not his...
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Jacob Ruppert v. Caffey, 603
...declares that beer is prohibited, whether it is intoxicating beer or not. Code 1906, c. 32, § 1, is substantially the same. 'State v. Henry, 74 W. Va. 72 , on indictment for selling 'intoxicating liquors,' held that evidence of sale of 'bevo' containing 1.31 per cent. of alcohol sufficient ......
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Cormick Co v. Brown
...State v. Good, 56 W. Va. 215, 49 S. E. 121; State v. Durr, 69 W. Va. 251, 71 S. E. 767, 46 L. R. A. (N. S.) 764; State v. Henry, 74 W. Va. 72, 81 S. E. 569, 4 A. L. R. 1132. Nor do we think that the regulations of the commissioner go beyond the authority which the statute confers. No state ......
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State v. Bailey
...an indictment for selling spirituous liquors, and "Bevo, " a drink of like kind and nature, a1-" fully covered and controlled by State v. Henry, 81 S. E. 569, hereby reaffirmed. 2. Indictment and Information (§ 121*) — Bill of Particulars. On such an indictment the defendant may not as a ma......
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McCormick & Co. v. Brown
...State v. Durr, 69 W. Va. 251, 71 S. E. 767, 46 L. R. A. (N. S.) 764; State v. Good, 56 W. Va. 215, 49 S. E. 121; State v. Henry, 74 W. Va. 72, 81 S. E. 569, 4 A. L. R. 1132. That the federal courts are bound by the interpretation of a state statute by the highest court of that state is Purs......