State v. Lemp

RyuaND, Judge,

delivered the opinion of the court.

The defendant was indicted for selling without license, ale, beer, porter, rum, gin, brandy, whisky and wine in small quantities, one gill and one glass of each, in St. Louis county. *390 He appeared, and filed bis special plea that be sold beer and ale only, and not tbe other liquors, and that tbe beer and ale were made by him in tbe city and county of St. Louis, within tbe state of Missouri, and not elsewhere. The. state demurred to this plea. Tbe Criminal Court sustained the demurrer, and required tbe defendant to answer oyer. He then plead not guilty. There was an issue on this plea, and verdict for tbe state. A motion for new trial was overruled, and an appeal taken to tbe Supreme Court.

.The bill of exceptions shows that tbe defendant sold beer within tbe time mentioned in tbe indictment; that be keeps a beer bouse in tbe city of St. Louis ; that be sold beer by tbe glass, and received pay for it, and that beer is a fermented liquor.

A witness statéd, that be bad been in Lemp’s bouse and bought beer within the time charged ; that beer is a fermented liquor; that beer is manufactured in Missouri; that bops, of which it is made, are raised in Missouri, as well as elsewhere ; but he did not know where Lemp’s beer was manufactured, nor where tbe bops and barley grew of which it was made.

Tbe court instructed tbe jury, “that if they believed tbe defendent Lemp sold beer, as charged in tbe indictment, at St. Louis county, and within one year next before the finding of tbe indictment in this case, and that beer is a fermented drink, they will find tbe defendant guilty, and assess a fine against him of not less than twenty nor more than one hundred dollars, and in such case, it makes no difference whether Lemp manufactured tbe beer sold or not. If tbe jury believe that Lemp sold a fermented drink called beer, all such fermented drinks are declared by statute to be intoxicating, and tbe jury are bound so to regard them, and it makes no difference whether such fermented drinks are in point of fact intoxicating or not.”

Tbe court refused to instruct tbe jury, “that, if they believed from tbe evidence that tbe beer proved to have been sold was tbe growth, produce or manufacture of tbe state, they *391 must acquit tbe defendant. That tbe growth, produce or manufacture of this state are exempt from taxation, and if tbe jury find that tbe article charged in tbe indictment to have been sold by defendant was such, they ought to acquit.’’

1. Tbe third section of tbe act to amend u an act to regulate groceries and dram shops, approved March 25th, 1845,” approved March 1st, 1851, declares, “ all fermented drinks and wines of every kind shall be considered intoxicating,” under the provisions of this act, and the act to which this is amendatory. The drink mentioned in the evidence in this case is said to be fermented drink — beer is a fermented liquor, and, therefore, by force of the statute, an intoxicating liquor or drink, and the vendor must get a license before he can sell by the gill or glass.

2. The instructions given were proper, and those refused, were properly refused. We shall not spend a line on the point about its being of domestic manufacture.

The other Judges concurring, the judgment of the Criminal Court is affirmed.