State v. Meyer
| Decision Date | 10 May 1920 |
| Docket Number | No. 13055.,13055. |
| Citation | 221 S.W. 775 |
| Parties | STATE v. MEYER. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Vernon County; C. A. Calvird, Special Judge.
"Not to be officially published."
George F. Meyer was convicted of violating the local option law, and appeals. Affirmed in part, and reversed in part.
A. J. King and Lee B. Ewing, both Of Nevada, Mo., for appellant.
J. Rusk Elevens and A. E. Elliott, both of Nevada, Mo., for the State.
This is a prosecution for violating the local option law. The proceeding was based upon an information containing ten counts. The jury found defendant guilty on the first, second, third, and fourth counts, but said nothing as to the others, which, in effect, was an acquittal as to them. State v. McCue, 39 Mo. 112; State v. Patterson, 116 Mo. 505, 22 S. W. 696; State v. McAnally, 105 Mo. App. 333, 79 S. W. 990. Finding a motion for new trial as to the first four counts unavailing, the defendant has appealed.
The defendant claimed that a constitutional question was involved in the point made against the validity of the information, and the case was therefore transferred to the Supreme Court on the theory that, if there were any doubt as to whether such a question was involved, that tribunal was the one to pass upon and settle the doubt. The Supreme Court did so at the October term, 1919, holding that, under the decision in State v. Christopher, 212 Mo. 244, 110 S. W. 697, the claim that the Court of Appeals had no jurisdiction must be ruled adversely to the defendant; and the case was thereupon retransferred to us.
The information, with all other proper and necessary averments, charges in each count that defendant in the city of Nevada, Vernon county, Mo., on the date specified in each count, "did then and there unlawfully sell certain intoxicating liquor, to wit, one glass of cider containing intoxicating liquor," etc. We think this sufficiently charged the offense and the liquor sold. It charged a sale of intoxicating liquor, to wit, cider. The evidence of the witnesses was that when they drank it, it produced intoxication. Under our local option statute it is an offense to sell "any kind of intoxicating liquors or beverage containing alcohol, in any quantity whatever." Section 7243, R. S. 1909. Hence, by statute, a beverage containing alcohol is an intoxicating liquor. The information did not charge that the cider contained alcohol, but it did charge that it was intoxicating, and the evidence showed that it was. Indeed, fermentation produces alcohol, and in law and commerce the term "cider" is applied only to the fermented juice of apples. People v. Emmons, 178 Mich. 126, 144 N. W. 479, Ann. Cas. 1915D, 425. It has been held that "hard cider," which necessarily means that it has reached that stage where alcohol is produced therein, is an intoxicating liquor under such a statute. The charge was that the cider sold was an intoxicating liquor, and the evidence shows that it did in fact intoxicate when drunk as a beverage. Hence we think that, not only was an offense charged, but it was supported by the proof, if believed by the jury.
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