Petitti v. State

*588 OWEN, Judge.

The petition in error filed in this case contains 10 assignments of error. The first four are to the jurisdiction of the lower court to try and determine the case. The defendant was indicted by the grand jury in the district court of Pittsburg county at the March term, 1908. Upon motion of the county attorne}', the indictment was transferred to the county court of Pittsburg county, where the defendant was tried and convicted. Under these four assignments, -it is urged that the district court had no jurisdiction of this case, and therefore the county court did not acquire jurisdiction upon the removal of the case from the district court. This question was presented to this court in the case of Paul Antonelli v. State, (decided at this terms), ante, p. 580, 107 Pac. 951 , and settled there adverse to counsel’s contention. • We deem it unnecessary to discuss this question here more than to refer to the decision in that case with approval.

Under the fifth assignment of error, it is urged that' the lower court erred in not sustaining the defendant’s demurrer to the testimony offered on the part of the state, for the reason that the evidence fails to show that the drink sold was intoxicating. The evidence is to the effect that the defendant sold beer.

Under the eighth assignment, practically the same question is raised by objection to the instruction of the court that “beer” without any qualification in its ordinary acceptation' 'imports a malt and intoxicating liquor, and is intoxicating. This question was also presented in the case of Antonelli v. State, supra, and settled against the contention of counsel. We think the conclusions in that case are correct, and so hold here.

Under the sixth assignment, counsel insists that the court erred in refusing to permit witnesses on part of the defendant to answer the questions asked them by the attorney for the defendant as to whether the drink known as “long horn” is intoxicating. These witnesses, it appears, had testified that the beer sold by the defendant had about the same effect upon them as the drink known as “long horn.” The defendant then sought to prove that “long horn” was not intoxicating. Counsel does not undertake to point *589 out under what rule of evidence tins testimony was competent. There was no proof of a chemical analysis that the beer sold and the drink known as “long horn” were the same, neither were the witnesses qualified as experts. "We find no error in the action of the court in refusing to permit the witnesses to answer these questions.

TJnder the seventh assignment of error, counsel urges that the court erred in refusing the instructions requested by the defendant. The instructions given by the court clearly state the law, and for that reason it was not error to refuse' the instructions requested by the defendant.

The ninth and tenth assignments are directed to the action of the court in overruling the motion in arrest of judgment and the motion for new trial, and raise no questions other than those presented under the other assignments!

Counsel for the plaintiff in error filed a supplemental brief in this case, in which he insists that plaintiff in error was tried and acquitted in a case, numbered 115, in the county court of Pittsburg ■ county, and that his acquittal in that case was a bar to the prosecution in this case. It does not appear from the case-made that the acquittal in the first case was pleaded as a bar in the second. On the contrary, on page 4 of the case-made, appears the following :

“And thereupon, on the same day, defendant being called to the bar of the court for arraignment, he waived the arraignment and for his plea to said indictment states that he is not guilty.”

Section 5418, "Wilson’s Bev. & Ann. St. 1903, in providing for the three different pleas allowed to an indictment, contains the following provision:

“If he plead a former conviction or acquittal: * * * The defendant pleads that he has already been convicted [or acquitted, as the case may be], of the offense charged in this indictment, by the judgment of the court of-[naming it], rendered at-[naming the plaec], on the-day of - — .”

The plea of former aeqiiittal not having been entered as *590 required by statute, it cannot be considered by this court. The judgment oí the lower court is affirmed.

FURMAN, PResidingi Judge, and DOYLE, Judge, concur.