Opinion
7 Div. 510.
February 26, 1929.
Appeal from De Kalb County Court; E. M. Baker, Judge.
J. D. Grant was convicted of violating the prohibition law, and he appeals. Affirmed.
The following requested charge was refused to defendant:
"5. The burden of proof is on the state to convince each individual juror that the contents of the jugs found on defendant's premises (were), alcoholic liquors. It is not enough to show it contained 'home brew.' The state must go further and show it contained alcohol, and, if the state has not met this burden, then your verdict should be for the defendant."
John B. Isbell, of Ft. Payne, for appellant.
The courts do not judicially know "home brew" is an alcoholic beverage, and proof must be made by the state to show that such beverage does contain alcohol before there can be a conviction. Charge 5 should have been given. Grant v. State, 22 Ala. App. 475, 117 So. 1.
Charlie C. McCall, Atty. Gen., and J. W. Brassell, Asst. Atty. Gen., for the State.
Appellant's contentions for error are without merit. Gist v. State, 22 Ala. App. 475, 117 So. 2; Ham v. State, 22 Ala. App. 582, 118 So. 241; Cleckler v. State, 215 Ala. 647, 112 So. 186.
The rulings of the trial court were in accord with the opinion of this court on former appeal. Grant v. State, 22 Ala. App. 475, 117 So. 1.
On this trial there was evidence tending to prove that the "home brew" looked like, smelled like, foamed like, and tasted like beer. This of itself was sufficient evidence from which the jury was authorized to find that the contents of the cans was a prohibited liquor within the meaning of the statute.
It having been testified to that the home brew contained alcohol and that one of the cans was partly empty, it was relevant to show that defendant was the only person found near the beer, and that he was intoxicated, as tending to prove that the home brew was intoxicating, and as a part of the res gestæ.
Refused charge 5 was properly refused. Prohibited liquors, within the meaning of Code 1923, § 4615, are not limited to liquors containing alcohol.
There is no error in this record, and the judgment is affirmed.
Affirmed.