State v. Volmer , 6 Kan. 371 ( 1870 )

The opinion of the court was delivered, by

Valentine, J.:

This case was commenced originally before a justice of the peace, whence it was appealed to the district court, and from the district court to this court. The qustions to be decided are three:

1. saieofinkm“íhoutijMMo. I. The sale of spirituous, vinous, fermented and other intoxicating liquors without a license, is a criminal offense, and a misdemeanor; (Gen. Stat. p. 400, §3; p. 820, §§ 2, 3, 4, 5, 6; p. 878, §1; p. 383, §§ 307, 308; Laws of 1869, p. 149; State v. Muntz, 3 Kas., 387;) and such offense may be prosecuted like any other criminal offense of like magnitude.

2. Whetherliquor miyttKwn l>y proof. II. After the State has proved that the defendant sold lager beer, the State may prove, (if it be ® ' J r ? \ denied by the defendant,) that lager beer is . . . .. an intoxicating liquor.

The witness "Wood, who bought the beer from the defendant, testified that he called for lager beer, got what looked and tasted like lager beer; and that he thought it was lager beer. This was evidence, of itself, sufficient to prove prima facie, that the beer sold was lager beer; (1 Iowa, 374, 379;) and sufficient as a foundation to give the State the right to prove, when denied by the defendant, that lager beer is an intoxicating liquor. It was an admission Ion the part of the defendant, when he sold the beer, that it was lager beer. Wood also testified that it was like lager beer that he had drank in other places. There was other testimony tending to show that it ivas lager beer; and oven the defendant’s testimony tended to prove that it was simply lager beer of a weak kind, possessing less malt, less hops, and less alcohol than a good quality of lager beer. The defendant calls it new beer or young beer.

BumedmtaStmfr III. Under the statutes of this State, all fermented liquor is presumed to be intoxicating. If the defendant denies that the fermented liquor sold by him is intoxicating, it devolves upon him to remove the presumption of the law by evidence.

These are all the questions really raised by the record. ~We think there was evidence sufficient to sustain the verdict of the jury.

4. Evidence — ndmis&ibiiity of. On several questions we cannot tell whether the court below committed error or not. For instance, we cannot understand upon what principle Macke & Co.’s x j. j. advertisement in the Emporia Tribune was introduced in evidence; and there are other matters left unexplained. But as neither the evidence nor the charge of the court is all brought to this court, it will be presumed that the action of the court below was correct.

s. Tua oourt need not repeat its ^ructions, As to some of the questions that the defendant has attempted to raise, we would answer as we did in the case of Topeka v. Tuttle, 5 Kas., 311: A court is _ _ . . , not bound to repeat instructions to the jury, in the same or different language, or to give the law to the jury more than once; nor is the court bound to give the instructions in the exact language of the party asking them, but may give them in different language.

The judgment of the court below is affirmed.

All the Justices concurring.