Opinion
Docket No. 126, Calendar No. 33,704.
Submitted June 14, 1928.
Decided July 24, 1928.
Error to Montcalm; Hawley (Royal A.), J. Submitted June 14, 1928. (Docket No. 126, Calendar No. 33,704.) Decided July 24, 1928.
Carl Christensen was convicted of violating the liquor law, and sentenced to pay a fine of $100, and costs. Reversed, and defendant discharged.
Wykes Sherk ( Michael J. Donnelly, of counsel), for appellant.
Wilber M. Brucker, Attorney General, and D. Hale Brake, Prosecuting Attorney, for the people.
Defendant, a grocer, for having sold a quantity of pasteurized malt syrup, made from barley malt and known as malt extract, was charged with, convicted of, and sentenced for violation of the prohibitory law, and he brings error.
The prosecution contends that the sale of the substance is within the inhibition of section 7079 (3), Comp. Laws Supp. 1922:
"SECTION 3. The phrase, 'intoxicating liquors,' wheresoever used in this act, shall be held and construed to include any vinous, malt, brewed, fermented or spirituous liquors and every other liquor or liquid containing intoxicating properties, which is capable of being used as a beverage, or will produce intoxication, whether medicated or not, and all liquids, whether proprietary, patented or not, which contains any alcohol and are capable of being used as a beverage; and all mixtures, compounds or preparations whether liquid or not, which, when mixed with water, or otherwise, produce by fermentation or otherwise, an intoxicating liquor,"
— and particularly the portion of the section following the last semi-colon.
Defendant urges four reasons for reversal. We consider one, that the sale is not an offense under the statute, and in this we think he is right. Malt syrup is a food. It is not intoxicating. To make an intoxicating beverage, yeast and water (and commonly sugar) must be added; more than water must be added to the syrup. If the prosecution is right here, then it is unlawful to sell any substance which may be used in making intoxicating liquor, such as sugar, cornmeal, raisins, grains, etc. The legislature neither so intended nor provided.
Reversed, and defendant discharged.
FEAD, C.J., and NORTH, FELLOWS, WIEST, McDONALD, and SHARPE, JJ., concurred. POTTER, J., did not sit.