Abbott v. State , 11 Ga. App. 43 ( 1912 )

Pottle, J.

The headnotes sufficiently indicate our view of the questions with which we deem it necessary to deal. The indictment charged the accused with selling, keeping on hand at his place of business, and giving away to induce trade, “alcoholic, malt, spirituous and intoxicating liquors and intoxicating bitters and drinks, which if drunk to excess will produce intoxication.” All of the witnesses who had any knowledge as to the kind of drink the accused had been selling testified that it was “near 'beer” and non-intoxicating. One of the State’s witnesses said he drank 32 bottles one day and went home at night entirely sober. The general prohibitory law comprehends only such beverages as, “if drunk to excess, will produce intoxication.” The court judicially knows that many kinds of drinks are intoxicating. But the term “near beer” does not import such a drink. The General Assembly having expressly sanctioned the sale of “near beer,” if anything, the presumption would be that a particular beverage having this name was non-intoxicating. Indeed, this court has defined “near beer” as a malt liquor containing such a small percentage of alcohol that it will - not produce intoxication if drunk to excess. Stoner v. State, 5 Ga. App. 716 (63 S. E. 602); Campbell v. Thomasville, 6 Ga. App. 212 (64 S. E. 815).

The case was closed with proof simply of sales of “near beer,” and, when argument was almost concluded, the State was allowed to reopen the case and introduce a witness, who testified that on one occasion he bought a pint of whisky from the accused, and paid him 45 cents for it. The only evidence as to the date of the sale was the following testimony of this witness: “That was in this county and within the last two years.” While the State may, of course, show that the offense was committed on any day within the limitation period, it seems to be taking rather an unfair advantage to rest the ease upon evidence that the crime was committed “within two years,” or four years, as the ease might be. An honest witness ought certainly to be able to state the date with sufficient exactness to indicate the month ór at least the season of the year. But as to this, see Chapman v. State, 18 Ga. 736. However, it must 'affirmatively appear that the offense was committed before the finding of the indictment, arid this is not shown by evidence that the criminal act was done some time within two years before the trial, the indictment having been returned some months prior thereto. The court should have granted a new trial upon the ground that there was not sufficient evidence to convict. The special assignments of error were without merit.

Judgment reversed.