
    MERKLE vs. THE STATE.
    [INDICTMENT FOR SELLING LIQUOR TO STUDENT OR COLLEGE,]
    1, Opinion of witness, admissibility, of — A witness who has frequently drunk fermented liquors, and who. can distinguish thomhy their taste, though he has no special knowledge of ohomistry, is competent to express an opinion on the ^question, whether.lager, keer.is oris not a fermented liquor.
    2, Boohs of science, admissibility :of. — Extracts from standard modical hooks are competent evidence, and may ho read to the jury.
    3, What constitutes offense of selling Uguor to, student or minor. — The statute prohibiting the sale or delivery of liquor to students or minors, (Codo, §5 3280-81,) applies to fermented liquors as well as to vinous or spirit, uous liquors,
    FROM tbe'Circuit Court of-Terry»
    Tried before the Hon. Poster King.
    .In : fcbis case, Luther Merkle and William H. Redding were jointly indicted -for selling liquor to a student of .Howard college,;in tbe town of Marion, and were jointly tried. On the-trial, as tbe bill of exceptions shows, the ..State first introduced as a witness one Pollard, tbe student .to whom the liquor was sold, and who testified to the fact ¡that, within the period covered by tbe indictment, he ,'bought a glass of lager beer from tbe defendant Merkle, who was acting as clerk or agent for his co-defendant, in-a confectionary store belonging to tbe latter. The State then introduce done Thornton as a witness, who testified, “that be was professor of chemistry in Howard college 5 that the fermentation of organic bc-dies is one. of the subjects treated of in chemistry;. that be bad studied that subject in tbe different books- on- chemistry, and Was theoretically acquainted with- it, but had no practical knowledge of the process of fermentation, or the art of brewing; that he had drunk lager beer at various places, and in the store of the defendant Redding ; and that he was acquainted- with the taste of fermented liquors, from having frequently drunk liquors which were fermebted.” On this state of facts-, the-court allowed the witness, against the objection of the deféndant Merkle, to state that, “in his opinion, lager beer is'a fermented liquor;” to which said Merkle excepted. Said witness afterwards testified, on cross-examination, “ that he knew" nothing of the fermentation of liquors* except wliat be had read in books on the subject; that he was nota brewer, and knew nothing whatever, practically, of the fermentation of liquorsthat all he knew on the subject was theoretical, and derived from books; that in speaking on the subject, he had only-given, and could only give,' the contents thereof, so far as he knew the same;' that the books themselves, if in court, would be better evidence than his testimony, because he could not use such language as was used in them, and could not recollect all that was therein stated on the- subject ? that his knowledge of chemistry did not aid him in reference to knowledge acquired by tasting said beer; and that' one not acquainted with chemistry could judge of said* beer, by the taste, as well as be.”'' On these facts, the defendant Merkle moved’the court to exclude from the jury the opinion of the witness above stated, and reserved an exception to the overruling of his objection. The State afterwards read in-evidence to the jury an extract from the “ United States Dispensatory,” by Wood & Burke, on the subject of vinous and. fermented liquors; having first proved, by the testimony of a practicing physician, “that' said book was recognized by the medical profession as good authority on all subjects therein treated of;” and to the admission of this extract as evidence the defendant Merkle excepted. The court charged the ¿pry, among other tilings,. “that, if they believed the beer sold to said Pollard was a fermented liquor, it would be their duty to find said Merkle guilty, whether said beer would intoxicate or not;” to which charge said Merkle.reserved an exception. .
    Brooks & Garrott, 'for the defendant.
    M. A. BaldwiN, Attorney-General, contra.
    
   R. W. WALKER, J.

It may be admitted, that the bill of exceptions excludes the idea, that the witness Thornton was at all aided by his knowledge of chemistry, in the formation of his opinion that lager beer is a fermented liquor. It is shown, however, that he had frequently drunk fermented liquors, and that he was able to distinguish, by' their taste, liquors which have undergone the process of fermentation. We hold, that such a witness, even though he may have no special knowledge of the science of chemistry, may be permitted to testify, that a particular liquor, which he has tasted, is, or is not, fermented. The answer to the question, whether a liquor has gone through the process of fermentation, does not necessarily demand a knowledge of chemical science, but is usually determinable by the senses; and consequently, the judgment of ordinary persons, having an opportunity of personal observation, and of forming a correct opinion, is admissible. — McCreary v. Turk, 29 Ala. 245 ; Wilkinson v. Mosely, 30 Ala. 572 , Ward v. Reynolds, 32 Ala. 384; Pullman v. Corning, 14 Barb. 174, 181.

The book, a portion of which was read in evidence, was shown to be a standard medical work; and under the rule adopted in Stoudenmeier v. Williamson, (29 Ala. 558,) the objection to the extract as evidence was properly overruled.

Under sections 3280 and 3281 of the Code, it is not necessary to the conviction of the defendant, that the liquor sold, delivered or given to a student or minor, should be intoxicating. The prohibitions of these sections extend to any fermented liquor which is commonly used as a beverage. There was, therefore, no error in the charge of the court.

Judgment affirmed.  