
    Tinker v. The State.
    
      Indictment for Selling Liquor without License.
    
    1. Judicial knowledge of liquors; sale of lager-beer as violation of local prohibitory tew. — Lager-beer, as the court judicially knows, is á malt liquor, containing alcohol produced by fermentation, and is not within the terms of a local law prohibiting the sale of “ vinous or spirituous liquors,” unless it is shown that such liquors had been mixed with it; and a statement in the admitted facts, “ that said lager-beer contained spirit, or alcohol, in sufficient quantity to intoxicate,” does not show such admixture.
    From the Circuit Court of Jackson.
    Tried before the Hon. John B. Tally.
   COLEMAN, J.

The defendant was indicted and convicted for a violation of the local prohibitory law, approved March 19th, 1875 — Acts of 1874-5, p. 276 — enacted to “prevent the sale, or giving away, or otherwise disposing of vinous or spirituous liquors, within certain limits.”

The case was submitted upon an agreed state of facts, all of which need not be stated in this opinion. The material facts are, “that the defendant sold Joseph Barly one drink of lager-beer ; that said lager-beer contained spirit, or alcohol, in sufficient quantities to intoxicate.” We understand the statement, that the “spirit or alcohol contained in the lager-beer in sufficient quantities to intoxicate,” to refer to the spirit or' alcohol which is a necessary ingredient of lager-beer — -that which is produced by fermentation, and not to a foreign admixture. It is with this view we construe the statute. Spirituous liquor, in its extended meaning, may include all liquors composed in whole or in part of alcohol, for such liquors partake of a spirituous quality; and the particular phraseology of a statute may show the legislature intended to use it in this extended meaning.—State v. Giersch, 98 N. C. 724.

In most of the States, and in this State, spirituous liquor means that which, in whole or in part, is composed of alcohol extracted by distillation.—Allred v. State, 89 Ala. 113; Bishop on Statutory Crimes, §1009. Vinous liquor is liquor made from the juice of the grape. — Bishop, supra, § 1010; Adler v. State, 55 Ala. 23; Allred v. State, 89 Ala. 112. Any liquor in which spirituous or vinous liquors, as thus defined by our decisions, are present as a predominating element, regardless of the name or other ingredients of the mixture, is embraced by the word vinous or spirituous liquors, as used in this statute.—Wall v. State, 78 Ala. 417; Carl v. State, 89 Ala. 93. As was said in Carson v. State, 69 Ala. 235, “there may be cases where the Iona fide sale of a quantity of spirituous liquor in a medicinal tonic would not alone bring the sale within the statutes, prohibiting vinous or spirituous liquors.” Malt liquor has neither vinous or spirituous liquor as an ingredient. It has alcohol produced bjr fermentation, through which it must pass before it becomes a beverage. Spirituous liquor, vinous liquor, and malt liquor are not synonomous terms, but each refers to a liquor separate and distinct from the others. Lager-beer is a malt liquor, and the court takes judicial knowledge of this fact.—Watson v. State, 55 Ala. 159.

Intoxicating bitters, and intoxicating liquors, may or may not be included in the terms of spirituous or vinous liquors, according to whether distilled liquors or the juice of the grape is present as an element to an extent which produced intoxication. ■ There may be intoxicating liquors, or intoxicating bitters, and yet be neither spirituous, vinous, nor malt liquors. Allred v. State, 89 Ala. 114. Intoxicating liquors or bitters, having neither .spirituous or vinous liquor as an element, as herein defined, are not included in the general terms, spirituous or vinous liquors.

The statute having prohibited the sale of “spirituous and vinous liquors ” only, malt liquors are not included. It was error, therefore, to have charged the jury, that a sale of lager-beer was a violation of the local law. If the evidence had satisfied the jury that spirituous or vinous liquor had been mixed with the lager-beer, and sold, on such proof the defendant might be convicted.

Reversed and remanded.  