Opinion
7 Div. 35.
March 6, 1934. Rehearing Denied March 27, 1934.
Appeal from De Kalb County Court; L. L. Crawford, Judge.
Claude Howard was convicted of violating the prohibition law, and he appeals.
Affirmed.
Isbell Beck, of Fort Payne, for appellant.
Defendant is charged with possessing home brew. The courts do not judicially know that home brew is intoxicating or that it is a brewed or fermented liquor or beverage containing more than one-half of 1 per cent. alcohol. Code 1923, § 4615; Acts 1932, p. 56; Grant v. State, 22 Ala. App. 475, 117 So. 1; Moody v. State, 23 Ala. App. 431, 126 So. 495. Failing to prove that the beverage contained more than one-half of 1 per cent. alcohol, the state failed to discharge its burden. Acts 1932, p. 56.
Thos. E. Knight, Jr., Atty. Gen., for the State.
Brief did not reach the Reporter.
The evidence tends to prove that the officers went to the home of defendant and found him in possession of ten bottles, nine of which contained home-brew and one was empty and sitting by the side of defendant. The evidence also tended to prove that the defendant had just drunk the contents of the empty bottle and that all of the home-brew contained alcohol. This was sufficient evidence to sustain a conviction under section 4621 of the Code of 1923.
The fact that defendant had just drunk a bottle of the "home-brew" and was intoxicated is some evidence tending to prove that the home-brew was a beverage and was intoxicating.
There was no evidence tending to prove that the home-brew was such a beverage as is designated in Acts 1932, p. 56, which permits the manufacture and possession of certain beverages therein described. That act has no application to this case.
The judgment is affirmed.
Affirmed.