Opinion
No. 38229.
December 10, 1951.
1. Intoxicating liquors — malt liquors or beer — alcoholic content.
In a prosecution for the unlawful sale of intoxicating liquor when the proof showed that the liquor in question was malt liquor and there was none to show the alcoholic content, a conviction will not be allowed since so far as malt liquor or beer is concerned the test is not its intoxicating potency but its alcoholic content. Sec. 10207 et seq., Code 1942.
2. Intoxicating liquors — indictment — malt liquor — no allegation that the sale of beer had been outlawed by an election.
An indictment charging the defendant with the unlawful sale of homebrew, a malt liquor, states no crime and therefore is insufficient when there is no allegation that the sale of beer had been outlawed by an election.
Headnotes as approved by Alexander, J.
APPEAL from the circuit court of Scott County; W.E. McINTYRE, Judge.
Roy N. Lee and James W. Lee, for appellant.
I. The trial court erred in overruling appellant's motion for a directed verdict. Sec. 10207 Code 1942; Hall v. State, 199 Miss. 560, 24 So.2d 780; Turner v. State, 198 Miss. 839, 24 So.2d 84.
II. The trial court erred in granting the only instruction requested by the State. Hall v. State, 199 Miss. 560, 24 So.2d 780.
III. The trial court erred in refusing the following instruction requested by appellant: "The court instructs the jury for the defendant that under the laws of the State of Mississippi it is lawful to sell wine and malt beer with an alcoholic content of 4% and less, and, if there is a reasonable doubt in your minds that the homebrew in question contained more than 4% by weight of alcohol, then it is your duty to return a verdict of not guilty." Hall v. State, 199 Miss. 560, 24 So.2d 780.
Geo. H. Ethridge, Assistant Attorney General, for appellee.
Cited and discussed the following:
Secs. 2613, 10207, Code 1942; Kline v. State, 44 Miss. 317; Bennett v. State, 100 Miss. 684, 56 So. 777; Bogle v. State, 155 Miss. 612, 125 So. 99; Huffstickler v. State, 129 Miss. 703, 93 So. 1; Garland v. State, 130 Miss. 310, 94 So. 210; Hall v. State, 199 Miss. 560, 24 So.2d 780; Turner v. State, 98 Miss. 839, 24 So.2d 84; Carter v. State, 140 Miss. 265, 105 So. 514.
Appellant was convicted of the sale of intoxicating liquor designated as "homebrew." The testimony indicated that it was malt liquor.
There was no showing whether the sale was made in a county which had voted out beer, nor did the proof show the alcoholic content of the product. There was convincing testimony that the liquor was intoxicating. The State seeks affirmance upon the theory that the applicable statute is Code 1942, Section 2613, which forbids traffic in any liquors "which if drunk to excess will produce intoxication." (Hn 1) Insofar as malt liquors or beer is concerned, this section has been superseded by Sec. 10207 et seq., Chapter 5, Vol. 7, Code 1942, as to all cases covered by the chapter, and the test is not its intoxicating potency but its alcoholic content. Hall v. State, 199 Miss. 560, 24 So.2d 780.
The indictment was insufficient. It charged only that the accused "did unlawfully sell intoxicating liquor, to wit, Home-Brew." No crime is stated. (Hn 2) There is no allegation that the sale of beer had been outlawed by an election. May v. State, 209 Miss. 579, 47 So.2d 887.
The cause will be reversed and appellant discharged, but without prejudice to the State to institute such further proceedings as it may deem appropriate.
Reversed and appellant discharged.
Hall, J., took no part in the decision of this case.