PER CURIAM. The majority of the court are of the opinion that this case cannot be distinguished in principle from the case of Isner v. U.S. (C.C.A.) 8 F.2d 487, and that consequently the portions of the charge complained of constituted reversible error. The principles of law involved were clearly set forth in the opinion of Judge Webb, speaking for this court, in the Isner Case. That decision has never been overruled, and must be followed as the law applicable in such cases.
United States v. Picalas (D.C.) 27 F.2d 366; In re Baldi (D.C.) 33 F.2d 973. Other courts have held that by the word "nonintoxicating" as used in this section is meant that which is not intoxicating in fact. Isner v. United States (C.C.A. 4) 8 F.2d 487; Picalas v. United States (C.C.A. 4) 33 F.2d 1022. The last of these constructions is probably the right one. The statutory definition is not of the word "nonintoxicating" but of the words "intoxicating liquor."
The court in that case charged the jury that the government had the burden of proving that the cider and fruit juices complained of were in fact intoxicating. Also the Circuit Court of Appeals for the Fourth Circuit, in Isner v. United States, 8 F.2d 487, held: "We were interested in the argument of the government brief in this case, but are forced to the conclusion that whatever Congress may have meant by inserting the above clause in the Prohibition Act, we are bound to consider and accept the plain language of it.
It is clear to my mind that, by embracing the last paragraph of section 29 in the act, Congress permitted only the manufacture of sweet cider or fruit juices in the home, to be used exclusively in home consumption, and provides only against the sale of such articles because the sale of apparently innocent fruit juices could be used as a cloak for the secret manufacture and sale of intoxicating wines or liquors and make the detection thereof the most difficult. Reference has been made by counsel for the defendant to Isner v. U.S., decided by the Fourth Circuit Court of Appeals October 20, 1925, 8 F.2d 487, but a careful study of the Isner Case differentiates it from this case. In the Isner Case there was much disputed testimony as to whether or not the concoction was wine, or whether it was fit for beverage purposes.
Then the court noted, "[i]t would therefore seem to be inconceivable that the Legislature intended the prohibition laws to apply to the possession of a teaspoonful of whisky when that quantity could not in any manner affect the morals, health, or well-being of any person or persons." In Isner v. United States, 8 F.2d 487 (4th Cir. 1925), the defendant was indicted for being in possession of 70 gallons of grape wine described as "intoxicating liquor," and thus being in violation of the National Prohibition Act. The government conceded that the beverage was not "intoxicating" but contended that, because of its alcohol content, possession of it was nonetheless a violation of those parts of the act defining "liquor" by alcohol content.
Of course, it may be argued that in this case because the park policeman had observed appellant smoking the cigarette — the discarded stub of which was later analyzed — such cigarette constituted a usable quantity. See Schraeder v. Sears, 192 Iowa 604, 185 N.W. 110 (1921), and Isner v. United States, 8 F.2d 487 (4th Cir. 1925). In view of the common practice of marijuana smokers to mix the weed with different substances, such as oregano or other herbs, it does not follow that appellant possessed a usable quantity of marijuana per se within the doctrine of the Edelin and Henson opinions.