State v. O'Connell

Powees, J.

Two indictments, — one for maintaining a nuisance under P. S. (1883), c. 17, § 1, and the other for being a common seller of intoxicating liquors under R. S. (1883), c. 27, § 35. . The evidence in each case was of the sale by the respondent of Uno beer, brewed from malt and containing 2.36 per cent of alcohol. A verdict of guilty was returned in each case. Counsel for the respondent requested the following instructions:

“That the jury must be satisfied beyond a reasonable doubt:—

A. That malt entered into the composition of this beer as a substantial ingredient.

B. That if malt was used, but to such a small amount that the alcohol germinated therefrom was not sufficient to produce intoxication, then the respondent must be discharged.

C. That if malt was used to such a small amount that the alcohol germinated therefrom together with the alcohol germinated from the glucose, admittedly in the beer, amounted together but to 2.36 per cent, then the jury must be satisfied that the beer is intoxicating in fact before they could find the respondent guilty.” The presiding justice declined to so instruct the jury, and to such refusal exceptions were allowed in each case.

Request A was not given in terms. The jury were instructed that if the beer was malt liquor the statute declared it to be intoxicating; “Therefore the question for you to consider is whether this beer was a malt liquor and is a malt liquor, whether it was produced from malt. If it was, then it is intoxicating.” If it was “produced from malt,” malt must have entered into it as a substantial ingredient. The instruction actually given was quite as favorable to the *64 defendant as the instruction requested, and it is no ground for exception that the exact language of the request was not adopted by the presiding justice.

Requests B and C are based upon the ground that notwithstanding the jury might find that the beer was a malt liquor, which the legislature has declared to be intoxicating and the sale of which it has by express act prohibited, in order to convict the respondent the jury must go further and find that it was intoxicating in fact. Revised Statutes 1883, c. 27, § 33, amounts to a prohibition of the sale of malt liquor. While the legislature cannot make that intoxicating which is in fact not intoxicating, it may prohibit the sale of a specific article, as it has done in this case; and its right to do so is clearly a constitutional exercise of the police power. The issue was whether the defendant sold malt liquor. If he did sell it, it was in violation of the statute, and it was not necessary in order to establish his guilt, for the jury to go further, revise the judgment of the legislature and determine whether malt liquor was or was not in fact intoxicating. Com. v. Anthes, 12 Gray, 29 ; State v. Guinness, 16 R. I. 401; State v. Gravelin, 16 R. I. 407; Com. v. Brelsford, 161 Mass. 61 . The jury were properly instructed that if it were a malt liquor it was immaterial how much alcohol it contained.

Later the jury presented the following question to the court:

“Did the court rule that, if the beer in question contained any malt, it was a malt liquor?”

In reply the presiding justice said: “I instructed you, and I now instruct you, that if you find beyond a reasonable doubt that the beer in question was brewed from malt, it was a malt beer and comes within the prohibition of the statute.”

The presiding justice was not bound to define the term “malt liquor.” State v. Starr, 67 Maine, 242; State v. Wall, 34 Maine, 165. While the court should define to the jury legal terms to which the law has attached a specific meaning, it is not required to define words in common and ordinary use the definition and meaning of which jurors are presumed to understand as well as the court. Darling v. Dodge, 36 Maine, 370; Com. v. Bios, 116 Mass. 56 ; Com. v. Carroll, 145 Mass. 403 .

*65 By necessary implication a malt beer is a beer brewed from malt and the statement of that fact could not have been prejudicial to the respondent. The presiding justice did not undertake to answer the question propounded, but simply reiterated in another form the instruction already given. He said: “I instructed you, and I now instruct you,” that malt liquor comes within the prohibition of the statute. The jury must have so understood him. We perceive no error in the instructions given. .In both cases, Exceptions overruled.