
    The State of Ohio v. Walder.
    
      Unlawful to sell malt liquor — Whether intoxicating or non-intoxicating — In county where local option is in force.
    
    It is unlawful to sell malt liquor to be used as a beverage in a county of this state where the county local option law is in force, whether such malt liquor is in fact intoxicating or nonintoxicating. Such is the effect of section three (3) of said enactment, which declares that the “phrase ‘intoxicating liquor’ as used in this act, shall be construed to mean any distilled malt, vinous or any intoxicating liquor whatever.". See 99 O. L„ 3S.
    (No. 12316
    Decided November 22, 1910.)
    Error to the Circuit Couiit of Fulton county.
    I
    At the April term of the court of common pleas of Fulton county, held in the year 1909, the following charge was made against the defendant in error, to-wit:
    “The State of Ohio, Fulton county, ss.
    “Before me, Ed. Scott, clerk of the court of common pleas in and for said county, and in which said county Hon. J. M. Killits, judge of said court is now' sitting, personally came Fred Grandy, who being duly sworn according to law, deposes and says, that on the twenty-fifth day of. January, 1909, in the county of Fulton and state of Ohio, one August Walder did then and there sell intoxicating liquors, to-wit, a malt liquor containing .49 per cent, alcohol and no more, commonly known as ‘Near Beer/ as a beverage to one Fred Grandy; that the selling of said liquor as aforesaid by the said August Walder was then and there prohibited and unlawful and contrary to the local option laws of the general assembly of the state of Ohio, and against the peace and dignity of the state of Ohio.
    “Fred Grandy.”
    This is followed by the proper jurat signed by the clerk of the court.
    Upon this affidavit, a warrant was issued, and the accused party taken into custody and before the said John M. Killits, as judge of the court of common pleas, where he was tried on the charge made in said affidavit.
    The bill of exceptions shows that certain facts were agreed upon at the trial, namely: “It was admitted by and between counsel in open court that whatever crime was committed, if any, was committed in the county of Fulton and state of Ohio; that a local option election was held in the county of Fulton, state of Ohio, on the twenty-fourth day of November, 1908, and that a majority of the votes cast were in favor of the sale of intoxicating liquors as a beverage being prohibited; that whatever, if any, crime was committed, was committed more than thirty days after the date o.f the holding of said local option election; that a certificate of said local option election has been filed with the clerk of court of Fulton county, Ohio, and that said certificate is on record as provided by law.”
    The state introduced its evidence and rested, . and the accused introduced his evidence and rested. Thereupon the court found him guilty as charged in the affidavit, and assessed a fine of fifty dollars and the costs of the prosecution. The finding of the court appears in the journal entry as follows:
    “On consideration whereof the court find that the liquor charged in the affidavit to have been sold by defendant was a malt liquor, but was not intoxicating, and the court finds as a matter of law that the sale of said malt liquor is within the inhibition of statute and contrary to law.” A motion for new trial was overruled, to all of which rulings and judgment proper exceptions were entered. A bill of exceptions was prepared, allowed and signed.
    The circuit court granted leave to file therein a petition in error, which was filed, and on hearing the cause on error, said court reversed the court of common pleas, on the ground, as stated in the judgment entry, “that said judgment is contrary to law, in this, to-wit, that there was no evidence offered upon the trial of said cause showing or tending to show that the beverage sold was an intoxicating liquor.” The case was remanded to the court of common pleas.
    The state prosecutes error in this court to reverse the judgment of the circuit court.
    
      Mr. F. H. Wolf, prosecuting attorney, and Mr. Wayne B. Wheeler, for plaintiff in error.
    Section 3 of the county local option law (99 O. L., 36), is as follows: “The phrase ‘intoxicating liquor/ as used in this act shall be construed to mean any distilled, malt, vinous or any intoxicating liquor whatever.”
    
      The question which arises in this case is, whether a malt liquor sold in a county where this law is in operation, violates the statute.
    A proper construction of the definition in question, necessitates the determination of the intention of the general assembly in framing it. Had no such definition of the phrase “intoxicating liquor” been prescribed, the question as to the nature of the liquor dealt in by the defendant as intoxicating in point of fact would have been material in every prosecution instituted thereunder. The difficulty in the enforcement of the statute framed in such general terms, and the possibility of the lack of uniformity in the results of prosecution instituted under such language, have induced the general assembly to adopt the legislative policy followed in formulating various other police regulations of the state, such as the laws respecting food adulterations, those requiring the registration of physicians, druggists, stationary engineers, etc. This policy is that which eliminates disputes as to intrinsically doubtful facts, such as would have to be established by so-called expert testimony, and establishes a positive standard which though arbitrary is to be upheld by the courts, if the legislature had power to establish it. 23 Cyc., 57; State v. Intoxicating Liquors, 76 Ia., 243; Commissioners v. Timothy, 8 Gray, 480; State v. Wittmar, 12 Mo., 407.
    That the legislature intended to include all malt liquors as coming within this definition, whether in fact there was a sufficient amount of alcohol in them to make them intoxicating, is clearly shown by recent legislation and the decision of this court. When the municipal option law was enacted defining intoxicating liquor to mean any distilled, malt, vinous or any other intoxicating liquor, Sections 4364-20a to 4364-20i, there was doubt in the minds of the courts as to whether or not under that wording it included all malt liquors, whether intoxicating or not. This doubt arose from the decision of Justice Brewer in the Kansas case under a similar wording of the law, holding the word “other” showed these terms, vinous, malt and distilled, were qualified by the word “intoxicating.”
    Following the decision of this court in State, ex rel., v. Kauffman, 68 Ohio St., 635, in construing the Dow law, the legislature made the definition of intoxicating liquor to conform to it with the distinct purpose of settling this mooted question.
    In the General Code the codifying commission struck out the word “whatever” on the theory it added nothing to the definition of intoxicating liquor. The legislative intent is • absolutely clear, both from the reading of the statute, and especially from the fact that the statute was put in its present form immediately following the construction by this court as to what similar language meant.
    Both laws have the same title, “To further provide against the evils resulting from the traffic in intoxicating liquor,” and they were sustained on this theory of providing against the evils of the traffic. Senior v. Ratterman, 44 Ohio St., 661.
    
      There are three theories upon which this case may be decided:
    First. That the term “malt liquor” includes all malt liquids, whether they contain any alcohol or not. This might be called the literal construction placed upon the term.
    Second. The term “malt liquor” includes all 'malt alcoholic beverages, regardless of the amount of alcohol contained therein. This is the middle ground, and the decisions cited in this brief show the reason for such a construction.
    Third. The term “malt liquor” includes only such malt liquors as are intoxicating in fact. This represents the other extreme from the first one named.
    See definitions in Standard Dictionary, Century Dictionary and Webster’s for “liquor” and “malt liquor.”
    Webster’s International Dictionary defines “malt” to be barley, or other grain steeped in water and dried in a kiln, thus forcing germination until the saccharine principle has been evolved. It is used in brewing and the distillation of whiskey. United States v. Cohn, 52 S. W. Rep., 44.
    A number of cases have been decided covering this question as to the power of the legislature to enact such a definition, and what the term “malt liquor” means. Hewitt v. People, 57 N. E. Rep., 1077; United States v. Cohn, 52 S. W. Rep., 38; State v. Frederickson, 101 Me., 37; Feibelman v. State, 130 Ala., 122; Dinkins v. State, 43 So. Rep., 114; Edwards v. Gulfport, 49 So. Rep., 620; State 
      v. Virgo, 14 N. Dak., 293; Pennel v. State, 123 N. W. Rep., 115; 1 Jones on Evidence, p. 270; Briffttt v. State, 58 Wis., 39; State v. Spaulding, 61 Vt., 509, 17 Atl. Rep., 844; Eaves v. State, 113 Ga., 749, 39 S. E. Rep., 318; Merkle v. State, 37 Ala., 139; Vinegar Co. v. Printing Co., 35 Fed. Rep., 570; Kettering v. Jacksonville, 50 Ill., 39; People v. Adams, 95 Mich., 541; People v. Kinney, 124 Mich., 486, 83 N. W. Rep., 147; Jones v. Surprise, 64 N. H., 243; People v. Foster, 64 Mich., 715; Feldman v. Morrison, 1 Ill. App., 460; Commonwealth v. Chappel, 116 Mass., 7; Commonwealth v. Dean, 14 Gray, 99; Commonwealth v. Bubser, 14 Gray, 83; Commonwealth v. Anthes, 12 Gray, 29; State v. Wadsworth, 30 Conn., 55.
    The legislature having defined what liquors shall be deemed intoxicating, was it incumbent upon the state in the tr.ial of the case below to prove that one of the liquors named in the definition of intoxicating liquors was in fact intoxicating? The state contends that it was not; that when the liquor was shown to have been a malt liquor that it was, in law, intoxicating liquor; that the court was bound by the definition and could not inquire whether or not it was intoxicating. Black on Intoxicating Liquors, Section 521; Commonwealth v. Shea, 14 Gray, 386.
    Where a word or phrase in a criminal statute has received a statutory definition, proof that an act comes within the definition is sufficient to support 'a conviction. Hansberg v. People, 60 Am. Rep., 549; State v. Intoxicating Liquors, 2 L. R. A., 408; Lemly v. State, 20 L. R. A., 645; State v. 
      Brewing Co., 26 L. R. A., 138; Commonwealth v. Timothy, 8 Gray, 480; 23 Cyc., 60.
    The supreme court of Nebraska .recently decided a case involving nearly every phase of this controversy. The liquor which was sold was malt liquor, and there was no evidence that it was intoxicating. Luther v. State, 20 L. R. A., N. S., 1146; South Shore Club v. People, 228 Ill., 75; Barden v. Montana Club, 10 Mont., 330; Mohrman v. State, 105 Ga., 709; Lemly v. State, 69 Miss., 628.
    
      Mr. James P. Ragan, for defendant in error.
    The evidence upon which the judge of the common pleas court based his finding was the undisputed statements and evidence of the defendant in error, that the liquor was? made in the following manner. The malt syrup was made as weak as it could be, then the alcohol was boiled out, so it did not contain any alcohol whatever. The other ingredient was sweetened water; one-third of the first was mixed with two-thirds of the second, and then carbonated.
    He further testified that when so made, the liquor contained absolutely no alcohol whatever.
    We need cite no authorities to define what a malt liquor is; it is a matter of common knowledge. Barley is sprouted. That changes the starch into sugar; it js then fermented, that changes the sugar into alcohol. It is'then brewed with hops; it is then beer; or instead of brewing with hops, the férmented mash may be distilled; it is then malt whiskey. The beer so made is a malt liquor, and so is the whiskey, whether distilled or brewed, the liquor when made contains alcohol, and if when made it contains no alcohol, it is not a malt liquor. This court has decided in Weisbrodt v. State, 50 Ohio St., 192, that malt liquors as defined in the statutes providing against the evils resulting from the sale of intoxicating liquors, must be intoxicating 'malt liquors; if it is not intoxicating, it is not a malt liquor within the purview of those statutes. In -that case the court say, all spirituous, vinous, or malt liquors are intoxicating, but all intoxicating liquors are not necessarily either spirituous, vinous or malt.
    Are we to look past the substance of the law, and look only at the shadow? Is it a contravention of the statute to keep on sale distilled water, or unfermented grape juice, or unfermented cider? In the cases at bar, the liquor when made was absolutely free from alcohol, and therefore was not a malt liquor, as defined by the statute referred to. It is no answer to say that it would generate alcohol if left standing long enough after its manufacture; sweet cider, or any mash of fruit or grain that contains any sugar will do that; this is a matter of common knowledge. The judge of the common pleas court must have found that no al- . cohol had generated in the liquor that Walder sold Grandy, for he found it was not intoxicating.
    It is unnecessary to turn to the decisions of other states for a definition of the phrase “intoxicating liquors” because a careful examination of the Rose law disposes of the question without reference to the decisions of other states. The true scope and meaning of that statute is to stop the traffic in the prohibited locality, in all intoxicating liquors, by whatever name called'. As a means to this end, it is made unlawful after thirty days after a locality has voted dry, for any person, by himself or agent, to sell, furnish or give away intoxicating liquors to be used as a beverage. Roberts v. State, 60 S. E. Rep., 1082, which is the nearest a parallel case with the one at bar that we can find.
    The circuit court considered the intent of the legislature in framing the Rose law; considered the’ letter of the law, analyzed it by section, and decided that the section properly understood should be construed to mean, “any distilled, malt, vinous or any other kind of intoxicating liquor.” We think the legislature could not have more clearly indicated its intent to make the Rose law apply to only intoxicating liquors if it had inserted the word, “intoxicating,” before the words, “spirituous” and “malt;” the phrase “or any intoxicating liquor whatever,” can bear but one literal construction, and that is that it means, “whether it be the kind of intoxicating liquors specifically mentioned, or whether it be any other kind of intoxicating liquor.” In support of this view, we cite the following authorities: Mason v. State, 58 S. E. Rep., 139; McDuffie v. State, 87 Ga., 687; Bell v. State, 91 Ga., 227; Bradley v. State, 121 Ga., 206; Intoxicating Liquor Cases, 2 L. R. A., 408; Murray v. LaFollette, 54 W. L. B., 203, 31 C. C., 247; 29 Cent. Dig., pp. 866-872.
    
      The affidavit charged the saie of intoxicating liquor — a malt liquor containing .49 per cent, of alcohol.
    No proof was made of the malt or intoxicating quality of “near beer” except as stated by Walder. His testimony clearly showed that it was not intoxicating and admitted only a possibility of it being alcoholic; his testimony showed also that it was not a malt liquor, as malt liquor is defined by the courts.
    “Malt liquor” needs no legal definition; it is a matter of common knowledge.
    Thé testimony being undisputed admissions of Walder, the finding of the judge of the common pleas court, that the liquor was a malt liquor, was an unwarranted conclusion from the evidence which the circuit court had a right to revise and correct.
   Price, J.

This is one of the many cases which have reached this court, involving alleged violation of some provision of the county local option law. The act is designated in the statute as amended senate bill No. 345, and is entitled: “An act to provide against the evils resulting from the traffic in intoxicating- liquors, by providing for local option in counties,” and was passed March 5, 1908, to take effect and be in force on and after September 1, 1908. See 99 O. L., 35. It is regarded as a case of great importance by the prosecuting attorneys of at least fifteen counties of the state who join in the brief for plaintiff in. error.

The charge preferred against defendant in error is that, “on the 25th day of January, 1909, in the county of Fulton and state of Ohio, one August Walder did then and there sell intoxicating liquors, to-wit, a malt liquor containing .49 per cent, alcohol and no more, commonly known as ‘Near Beer/ as a beverage to one Fred Grandy; that the selling of said liquor as aforesaid by the said August Walder was then and there prohibited and unlawful and contrary to. the local option laws of the general assembly,” etc. The charge in full is found in our statement of the case.

We are not clearly advised as to the author of the name of “Near Beer,” nor as to its real significance, but it may mean next to or almost “beer.” While the affidavit charges that the “Near Beer” so sold to Grandy was an intoxicating liquor, to-wit, a malt liquor of .49 per cent, alcohol, it was found by the trial court where the evidence was heard and' considered, “that the liquor charged in the affidavit to have been sold by defendant was a malt liquor, but not intoxicating” and then found as a matter of law that the sale of said malt liquor is “within the inhibition of statute and contrary to law.”

The statute authorizing a local option election provided how the question should be stated on the ballots, and it was in substance whether the sale of “intoxicating liquors” as a beverage should or should not be prohibited: And when the májority of the votes cast at the election were in favor of prohibiting the sale of intoxicating liquors in thát county, Section 2 of the act referred to made it unlawful, from and' after the holding of the election, “for any person personally or by agent, within the limits of such county, to sell, furnish or give away intoxicating liquors to be used as a beverage.”

Therefore, the sole living question in the case is,'did Walder violate the provisions of the statute by selling a malt liquor that was not in fact intoxicating? Or, was it essential to a conviction that the malt liquor sold was intoxicating?

The accused testified in his own behalf and he undertook to give the elements composing and the method of brewing the liquor from which the sale was made. His statement is brief, and we quote from it.

“Ques. to Deft. Tell the court whether or not you sold Mr. Grandy beer as he testified to? Ans. I did: it isn’t beer — near beer. At the time Mr. Grandy purchased that beer we were making near beer on a — that is, practically it wasn’t intoxicating at all; of course the beer was made, the first beer that was all made similar only far weaker than the other beer. The other beer contains four to five per cent, alcohol. We made it as weak as we could and then we boiled out the alcohol so it didn’t contain any alcohol whatever.

“Ques. This near beer you sold to Grandy? Ans. Yes, sir; then the raw product, sugar, etc., and we made nothing but a syrup. These articles laid there till we got ready to use them, when we would put in one-third of the first.substance, which didn’t contain any alcohol whatever, and then we took two-thirds of the other stuff which contained mostly water, and then we put them together, you know, and carbonated it; carbonating is what forms the foam and gives it the life; but of course there is a natural limit to that — it might be thirty hours and it might be ten hours — it depends on what kind of shape you keep it — if you keep it in a warm place it would generate alcohol right away; where if you keep it cold it might go two weeks or three weeks, as far as that is concerned, and never get alcohol. That is the reason I didn’t ship any or sell any except in my own place.”

He was asked to tell what ingredients entered into the beer sold to Grandy, and he said: “It was made out of that sugar — of course it had that malt ingredient; part of the malt was in there, but the alcohol part had all boiled out — there is nothing but' the nutritious part of the malt * *

Another question: “Was there any alcohol in the beer you sold Fred? (Grandy). Ans. I suppose it had generated a little, but I don’t think at the time I sold it — I don’t think there was probably two-tenths of one per cent. — may be not that much * *

On cross-examination, he admits the malt ingredient, and in another part of his testimony, he states that hops are used in lager beer, while in the near beer hop .extract is used, that is nonalcoholic but is the same thing as hops.

Again he is asked: “This brew that you sold that day would become intoxicating if left standing there? Ans. ' Yes, if I had sold' it to somebody else, or let it go out of the place; but I don’t allow it to go in a can or pail anywhere, so I was sure it wouldn’t get intoxicating * *

The purchaser of this article called “Near Beer” testified that it foamed like beer — looked like beer except that it was a little lighter — and smelled like beer. He also testified that Walder told him “he had a brew of malt the same as they would for beer, and that the liquid was boiled until they boiled the alcohol out of it * * He said it was made from malt the same as they made their beer.

It appears from the above and other evidence, that the trial court is fully supported in its finding that the beverage sold was a malt liquor, and it might also have been found that if given time or moderate warmth, it would generate alcohol. For this reason the accused would not sell the beverage to be taken from his premises.

What is the law applicable to the finding and the facts?

Section 3 of the county local option statute, already referred to, provides: “The phrase 'intoxicating liquor’ as used in this act shall be construed to mean any distilled, malt, vinous or any intoxicating liquor whatever.” While this section of the above statute has not heretofore been before this court for construction, we borrow light from what has been said in construing certain provisions of the Dow law and of the later Aikin law, concerning the taxing of the traffic in intoxicating liquors. In State, ex rel. Guilbert, Auditor, v. Kauffman, 68 Ohio St., 635, a dealer in “Bishop’s Beer” was resisting the payment of what was commonly called the Dow tax, because such beer was not intoxicating and did not come within the purview of the taxing statute. This court held in the syllabus that, “Section 4364-9, Revised Statutes, applies to the business of selling a malt liquor or beverage which contains less than two per cent, of alcohol and is not intoxicating.” The court disposed of the question in the following per curiam: “Section 4364-9, Revised Statutes, imposes a tax oh the business of trafficking in any intoxicating liquors, and also on the business of trafficking in spirituous, vinous or malt liquors. The generic term ‘malt liquors’ includes both non-intoxicating and intoxicating malt liquors * *

The statute then before the court was Section 4364-9, Revised Statutes, which provides that, “upon the business of trafficking in spirituous, vinous, malt, or other intoxicating liquors, there shall be assessed yearly and shall be paid into the county treasury * * * the sum of * * . This wording is the same as contained in the prior statute on the subject, except that the word “any” in the former is supplanted by the word “other” in the statute in force when the above Kauffman case was decided.

In a later case, La Follette, Treasurer, v. Murray, 81 Ohio St., 474, this court considered the section (4364-9) which is worded as above quoted, viz: “upon the business of trafficking in spirituous, vinous, malt or other intoxicating liquors, there shall be assessed,” etc. The case was not one of “Near Beef” but of “Friedon Beer,” containing .47 of one per cent, of alcohol, which it was claimed was hot intoxicating. The statute? 'and former decisions were reviewed, and the court’s conclusion is stated in the following syllabus: “Section 4364-9, Revised Statutes, (98 O. L., 100) in effect April 10, 1906, applies to the business of trafficking in malt liquors, whether intoxicating or nonintoxicating.”

The legislature went further, in order to make clear its -meaning, and made a definition of the phrase “trafficking' in intoxicating liquors,” which is found in Section 4364-16, Revised Statutes. And we find that in the statute providing for municipal local option, the legislature, in Section 4364-20c, Revised Statutes, defines the phrase “intoxicating liquors” as used in this act shall be construed to mean any distilled, malt, vinous, or any other intoxicating liquors.

Now as we come to the county local option law, we find the legislature attempting to -silence all quibbles as to what the phrase “intoxicating liquor” means, enacting Section 3 of that act, which may again be quoted: “The phrase ‘intoxicating liquor’ as used in this act shall be construed to mean any distilled, malt, vinous, or any intoxicating liquor whatever.”

This definition is very clear, and is not vexed with the word “any” or “other” which gave rise to the legal controversies in construing the taxing statutes.

The legislature -may have heard of “Bishop’s Beer,” “Friedon Beer,” and later of “Near Beer,” and concluded that the enforcement of the will of the majority should not be defeated by subterfuge, or the juggling in percentages of alcohol, and has said that, for the purpose of carrying out the intention of the people to prohibit the sale of intoxicating liquors, certain beverages shall be legally considered intoxicating, although not so in fact; and malt liquor is one of those so designated. “Near Beer,” being a malt liquor, the statute pronounces it an intoxicating liquor, and made proof of its real intoxicating qualities unnecessary. It is no more protected than altogether beer, and the attempt to evade the law by brewing a near or almost beer, is by section 3, supra, rendered futile:

The legislative fiat has gone forth, that malt liquor is intoxicating within the meaning of the act, and that is the end of it.

If the law is wrong, it is for the legislatuie and not the court to correct it, but it was enacted no doubt to cover such evasions as have been, tried in many localities.

However, this feature of legislation is not singular. it has been indulged in many other cases and on various subjects. We have seen how trafficking in intoxicating liquors is defined. We mention some other exemplifications of such legislation. Section 4200-5, Revised Statutes, defines the word “drug,” and also what shall be considered .as “food.” The following section determines when “drugs” and when “food” shall be deemed adulterated. Section 4403/, Revised Statutes, provides : “Any person shall be regarded as practicing medicine or surgery or midwifery within the meaning of this act, who shall use the words or letters, ‘Dr./ ‘Doctor/ ‘Professor.’ ‘M. D.,’ ‘M. B./ or any other title,” etc. Section 4364-30g defines “intoxicating liquor,” “qualified elector,” “residence district;” defines the words “block” and “saloon.” Section 4364-30y makes certain facts prima fácie evidence of guilt, and Section 4387 defines' a “pawnbroker.” Many other illustrations may be found to show how fertile the legislature has been in settling some things by statute which might otherwise be difficult of proof.

The courts of other states have passed on similar legislation, and we select a few decisions from the great number of reported cases.

: In State of Maine v. Frederickson, 101 Me., 37, the supreme judicial court of that state held in the third section of the syllabus as follows: “The constitutional right of the legislature to regulate or prohibit the sale and keeping of intoxicating liquors, and to declare certain liquors intoxicating within the meaning of the law governing intoxicating liquors irrespective of the intoxicating character of such liquors as a matter of fact,-both under the state and federal constitutions, have been so universally answered in the affirmative, both by the decisions in our own state, and by the supreme court of the United States, that it is no longer a question for argument or even doubt..”

Luther v. State of Nebraska, 20 L. R. A., 1146, decides that the prohibition of the sale or keeping for the purpose of sale, of malt liquors without a license so to do, applies to all malt liquors, sold or kept for sale to be used as a beverage, whether intoxicating or not; and that it was not necessary to allege or prove that the malt liquor was in fact intoxicating. This case was decided in 1909.

To the same effect is Eaves v. The State, 113 Ga., 749. In Dinkins v. State, 43 So. Rep., 114, the supreme court of Alabama held that “under acts 1886-87, p. 665, prohibiting the sale of malt liquors, it is an offense to sell a fluid containing a weak solution of malt liquor which cannot intoxicate.” It seems that in that state (Alabama) the courts were called upon to investigate the sale of various beverages which appeared under such enticing names as “Hop Jack,” “Cherry Bitters,” “Harter’s Wildcherry Tonic,” and “Cook’s Malt Tonic.” There, as in other states, enterprise was unbounded to prepare something to slake thirst for some, even slight intoxicant, without being caught in the meshes of law. The above case reviewed Feibelman v. State, 130 Ala., 122, to which we merely refer without quotation. See also State of Missouri v. Wittmar, 12 Mo., 407. A case is found in Commonwealth v. Timothy, 8 Gray, 480, in which it is held: “If the liquor sold was not in fact intoxicating, still, if it was within the liquors enumerated in the first section of the statute, the keeping of it with intent to sell was, by the terms of the statute, to be punished in the same mariner as if it was intoxicating; and such an enactment is within the discretion of the legislature to pass.”

Similar doctrine is laid down in The State v. Certain Intoxicating Liquors et al., 76 Ia., 243. The case is directly in point.

We cite nothing further from the great array of authorities, some of which may be found in the brief for plaintiff in error.

The finding that the sale made which is now under consideration, was a sale of malt liquor is amply supported by the facts, and the statute declares malt liquor to be intoxicating within the meaning of,the act.

The circuit court erred in its judgment, which is now reversed, and the judgment of the court of. common pleas is affirmed.

Judgment reversed.

Summers, C. J., Crew, Spear and Davis, JJ., concur.

Shauck, J., dissents.  