Glaze v. State , 20 Ala. App. 7 ( 1924 )

It seems to me that the majority is in error in this case, in that they have assumed without sufficient proof that the "beer" or "mash" from which whisky is distilled is capable of being used for beverage purposes. As used in our statutes defining the term (Acts 1915, p. 1, § 1, and Acts 1919, p. 7, § 1), the word liquor is not used in that broad sense, which means any fluid or liquid, but is used in conjunction with the word beverage. Section 1, Acts 1915, begins: The term "prohibited liquors and beverages;" and throughout the entire system of laws enacted in this state the evident intent of the Legislature was to prohibit the manufacture of liquors capable of being used as a beverage. Extracts of various kinds, medicines of many varieties, are in the broader sense liquors, but, not being capable of being used as a beverage, are not affected by the statutes. The foregoing is in line with the great weight of authority. Foster v. State, 36 Ark. 258; People v. Hawley, 3 Mich. 330; Tomkins County v. Taylor, 21 N.Y. 173; Moore v. State, 96 Tenn. 544, 35 S.W. 556; Malone v. State (Tex.Cr.App.) 51 S.W. 381; Luther v. State, 83 Neb. 455,120 N.W. 125, 20 L.R.A. (N.S.) 1146; 15 R.C.L. 248 (4). In Pennell v. State, 141 Wis. 35, 123 N.W. 115, it was held that the word "liquor" in a statute regulating or forbidding the sale of intoxicants means an alcoholic beverage. In Austin v. Shelton,122 Tenn. 634, 127 S.W. 446, liquor is defined as being confined to beverages when used in prohibition statutes. To the same effect are the cases of Allen v. Carbonic Co., 170 Fed. 315, 95 C.C.A. 11. The defendant under the evidence could not be convicted of manufacturing a distilled liquor, and, if guilty, must be proceeded against under the third definition as set out in section 1, Acts 1915, p. 1, on a charge of fermenting or brewing a liquor or beverage.

It was in evidence there was present one and one-half barrels of beer or mash from which whisky was distilled, that this contained alcohol, and the officer even said he drank some of it. But there was no evidence that defendant made it or fermented it, or that the fluid or liquid was capable of being used as a beverage. There was evidence of defendant's possession, but not of manufacture, there was no evidence of the stuff being a beverage or capable of being used as such. Under the evidence the defendant might have been convicted of possessing a still, but of this charge he was acquitted. On another trial the evidence may be adduced sufficient to convict the defendant, but it does not appear in this record. There is not an authority to be found in all the realm of judicial decisions contrary to the rule as stated above.