Opinion
10-04-1917
STATE. v. LI FIERI.
David J. Reinhardt, Atty. Gen., and P. Warren Green, Deputy Atty. Gen., for the State. Alexander B. Cooper, of Wilmington, for accused.
Argued before CONRAD and HEISEL, JJ.
David J. Reinhardt, Atty. Gen., and P. Warren Green, Deputy Atty. Gen., for the State.
Alexander B. Cooper, of Wilmington, for accused.
Giuseppe Li Fieri, alias Joseph Li Fieri, was indicted for unlawfully selling "intoxicating liquor, to wit, beer, to one Ernest C. Greenley, he the said Giuseppe Li Fieri, alias Joseph Li Fieri, then and there not having a proper license to sell intoxicating liquor according to law," etc.
On demurrer to the indictment. Overruled. The causes of demurrer appear in the opinion of the court.
CONRAD, J., delivering the opinion of the court:
The contention of defendant's counsel is that the allegation that the sale was had in "the store or warehouse" of defendant is in the alternative and implies that he sold in two places. The court is of opinion that to charge a sale in more than one place in a single count would be fatally defective, but it appears by the language used that it was intended to charge the defendant with a sale at a single place, known as the store or warehouse, and if there is any repugnancy in the indictment it can only show as a variance after the trial of the case.
The second contention is that the allegationof the sale of "intoxicating liquor, to wit, beer," is insufficient. In the opinion of the court the word "beer" without restriction or qualification denotes an intoxicating malt liquor and is within the meaning of the words "intoxicating liquor," and the use of the word "beer" alone in an indictment charging the unlawful sale of intoxicating liquor is presumed to include only that species of beverage. The court will take judicial notice, under our statute, of the fact that "beer" is the usual name for a malt liquor, and that it is intoxicating, and a charge of an alleged sale of intoxicating liquor is sustained by proof of the sale of beer, without any further description or testimony that it was intoxicating. Demurrer overruled.