Rysinger v. State , 40 Okla. Crim. 159 ( 1928 )

The plaintiff in error, who will be referred to as defendant, was convicted in the county court of Tillman county on a charge of having possession of intoxicating liquor with intent to sell, and was sentenced to be confined in the county jail for 60 days, and to pay a fine of $100.

Only one witness was called, a deputy sheriff, who testified briefly of finding defendant in possession of the gallon and half of choc beer, and that he was apparently negotiating a sale of it to another person. There was no evidence that this choc beer contained as much as one-half of 1 per cent. of alcohol measured by volume, or that it was intoxicating. This court has held many times that, where a liquid claimed to be intoxicating liquor is not made by any standard formula, and that is not per se an intoxicating liquor, this court cannot take judicial knowledge that it contains as much as one-half of 1 per cent. of alcohol, measured by volume. Choc beer is made in many different ways of different ingredients, and may or may not contain as much as one-half of 1 per cent. of alcohol measured by volume. There must be some proof either direct or circumstantial upon this point which will bring it within the inhibition of the statute. When there is no evidence either direct or circumstantial to satisfy this requirement of the statute, a conviction cannot stand.

The case is reversed and remanded.