Opinion
No. 36001.
December 10, 1945.
1. INTOXICATING LIQUORS.
Evidence that officers found in accused's home one jar of apple juice, and a jar containing about a half gallon of "home-brew," which liquid was not proved to be intoxicating, did not sustain conviction of unlawful possession of intoxicating liquor (Code 1942, sec. 2613).
2. INTOXICATING LIQUORS.
In prosecution for unlawful possession of intoxicating liquor, if officers had testified that "home-brew" which they found was whisky or some other beverage commonly known to be intoxicating, state would not have been required to prove its alcoholic content or that it would intoxicate if drunk to excess (Code 1942, sec. 2613).
3. INTOXICATING LIQUORS.
Testimony that witness smelled "homebrew" in a jar was insufficient to constitute an affirmative statement that such brew was intoxicating liquor so as to warrant conviction of unlawful possession of intoxicating liquor (Code 1942, sec. 2613).
APPEAL from the circuit court of Yalobusha county, HON. JOHN M. KUYKENDALL, Judge.
Stone Stone, of Coffeeville, for appellant.
This negro was convicted of having in his possession, according to the charge in the affidavit, "intoxicating liquor, to-wit, one and one-half gallons alcoholic malt." The state in the instructions and in the testimony speaks of intoxicating liquor as if it was whiskey but the testimony of witness Lloyd Farmer, the deputy sheriff, and J.C. Flowers shows beyond any possible doubt that what Charlie Turner had in his house was what is commonly called home-brew, or a malt mixture, and not intoxicating liquor or whiskey at all. There was no proof showing its alcoholic content or that it was intoxicating. The court should have instructed the jury to find the defendant not guilty and under the plain law no case or even a suggestion of a case has been shown and Charlie Turner is entitled to be released. Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
Regardless of what the liquor is or is called, the test is: Is it intoxicating liquor? The state obtained an instruction which submitted the issue of whether the appellant had in his possession intoxicating liquor.
Appellant had in his possession home-brew, and our court has held that home-brew is an intoxicating liquor.
Holley v. State, 144 Miss. 726, 111 So. 139; Code of 1942, Sec. 2613.
Our Court has held in a number of cases that intoxicating liquor could be identified by smell only in cases where the contents were spilled; and it has consistently held that it made a question for the determination of the jury.
Mitchell v. State, 129 Miss. 440, 92 So. 578; Schillings v. State, 151 Miss. 361, 118 So. 137.
In the case at bar, although the officers did not taste the liquors in question, they testified that, from the odor and smell of it, it was intoxicating liquor. This appears to be sufficient. However, in addition to this evidence, both jars and their contents were introduced in evidence and the jury found the liquors to be intoxicating. This should be conclusive.
Pursuant to a valid search warrant for intoxicating liquor, the officers entered the home of the appellant, and there found one jar of apple juice, and a jar that contained about a half gallon of "home-brew" in the ice box. On this evidence the accused was convicted under an affidavit charging him with the unlawful possession of intoxicating liquor, to wit, "alcoholic malt." The competent proof upon the trial failed to show that the liquid referred to as "home-brew" was intoxicating; and of course there is no contention that the apple juice was intoxicating.
Section 2613, Code 1942, makes it unlawful for any person to have in his possession, except as authorized under a subsequent section of said Code, "any vinous, alcoholic, malt, intoxicating or spiritous liquor, or intoxicating bitters or drinks, which if drunk to excess will produce intoxication, . . ." But it was not shown by any competent evidence that the preparation found in the icebox of the defendant came within the class of liquors or drinks enumerated in this statute, nor that it contained any such ingredients as to make it what is commonly known as intoxicating liquor. In fact, there was no competent evidence as to what this liquor was made of. However, if the officers had testified that it was whisky, or some other beverage commonly known to be intoxicating, then the state would not have been required to prove either its alcoholic content, or the fact that it would intoxicate if drunk to excess.
In the case of Fuller v. City of Jackson, 97 Miss. 237, 52 So. 873, 876, 30 L.R.A. (N.S.) 1078, where the defendant was convicted of selling a beverage known as "Brewett," without the state having made specific proof that the same was intoxicating, the Court reversed the conviction, saying among other things, in response to a suggestion of error, that, "There is no proof in the record as to how this `Brewett' is made — that is to say, whether it is a malt liquor — nor is it proven to be vinous, or spirituous." It was agreed in that case that this beverage contained a small quantity of alcohol.
In the Fuller case, supra, there was also involved on the same appeal another conviction of the defendant for having sold "Malt Ale," which was shown to contain 2.71 per centum of alcohol by volume, and 2.12 of one per centum of alcohol by weight. On suggestion of error the Court decided to uphold the latter conviction, on the ground that the Court could take judicial notice of the fact that a beverage shown to contain such a per centum of alcohol by volume and by weight, was intoxicating, in the absence of any testimony to that effect.
It is true that the jar of homebrew was introduced in evidence in the case at bar. But it does not appear from the record whether the jurors either tasted or smelled it, either before or after they retired to consider their verdict, or as to how they may have otherwise determined its alcoholic content. Then, too, the defendant may have been entitled to have had such proof made in his presence and hearing, in order that he might avail himself of the privilege of cross-examining the witnesses in that behalf. At any rate, we do not think the proof that this preparation was an intoxicating liquor is sufficient to sustain this conviction. One of the witnesses said that he smelled it, but his testimony is insufficient to constitute an affirmative statement that it was intoxicating liquor.
Reversed and judgment here for the appellant.