Jones v. United States , 18 F.2d 573 ( 1927 )

SYMES, District Judge.

The plaintiff in error, Jones, appeals from a conviction for the unlawful possession and the unlawful sale of intoxicating liquors, to wit, alcohol, on May 2, 1925. The only witness called by either side, W. N. Dodge, testified 'for the government that he called the defendant Jones at his home on the telephone and stated that he wanted a gallon of alcohol, which the defendant agreed to deliver. A short time thereafter the defendant brought a gallon of alcohol to Dodge at the latter’s drug store, and received $15 in payment.

The first or possession count charged that the defendant “did then and there knowingly, willfully, and unlawfully have in his possession and under his control intoxicating liquor, to wit, alcohol, contrary to the form of the statute,” etc., and the second or sales count alleged that the defendant “did then and there knowingly, willfully and unlawfully sell and deliver to W. N, Dodge intoxicating liquor, to wit, alcohol.”

The first assignment of error is that the court erred in overruling the defendant’s demurrer to these counts, because they failed to charge that the alcohol mentioned was for use for beverage purposes. There is no merit in this argument. It is well settled that the court may take judicial notice of the fact that whisky, brandy, aldohol, etc., are intoxicating liquor. Neither is it necessary in an information to anticipate or negative possible defenses such as that of lawful possession. Keen v. U. S., 11 F.(2d) 260; Massey v. U. S. (C. C. A.) 281 F. 293. Further, there was direct evidence by the purchaser, an experienced druggist, that what the defendant sold him was grain alcohol, and not denatured; that he and his friends used it as a beverage; and that it was, in fact, intoxicating.

A point is made of the fact that the government witness, Dodge, would not say that the alcohol was intoxicating when delivered to him. He testified that he diluted it about 50 per cent, with cherry syrup and water before consuming it. But if, as the witness testified, it was then intoxicating, we may assume that it was at least equally so before being thus diluted, there being no other change made in it. The Hill Case (D. C.) 1 F.(2d) 954, cited by defendant, is not in point. There the question was whether the mash had reached such a state in the process of fermentation that it was in fact intoxicating.

The information contained a general allegation of a previous conviction of the defendant for the unlawful possession of liquor, but no evidence of any prior conviction was offered. Therefore it is argued that the court should have granted the defendant’s motion for a directed verdict. The prior conviction is no ingredient of the offense itself; so if the evidence is otherwise sufficient, and the sentence' does not exceed that provided for a first offense, there is no error. Moreover, the record does not disclose that this allegation of the complaint was in any way adverted to in the course of the trial, and we fail to see how the defendant was prejudiced thereby. But, if so, it could have been cured by calling it to the attention of the trial judge by a requested instruction, or in some other manner. The question cannot be raised here for the first time.

It follows, from what we have said, that the judgment should be affirmed; and it is so ordered.