State v. Piche , 98 Me. 348 ( 1903 )

Powers, J.

Case based on search and seizure complaint.

The officer seized a quantity of beer at the respondent’s premises marked, “Don’t Know Beer 2§ per cent.” At the trial, the verdict ivas for the State, and the respondent excepted to the following portion of the charge of the presiding justice: “A liquor kept for sale, or sold by a person in this State, as a beverage, containing three per cent or more of alcohol, is an intoxicating liquor within the meaning of the statutes of this State. I instruct you under this definition that if you find beyond a reasonable doubt, that the liquor which was seized and which has been presented before you, contained three per cent or more of alcohol, that it is an intoxicating liquor. Now then, I submit to you the question of fact to determine whether it did or it does coutain three per cent or more of alcohol, whether the evidence in this case satisfies you beyond a reasonable doubt, that this beer contains three or more per cent of alcohol. If so, they are intoxicating liquors.”

By the statutes of this State, wine, ale, porter, strong beer, lager beer, and all other malt liquors and cider when kept or deposited with the intent to sell the same for tippling purposes, or as a beverage, as well as all distilled spirits, are declared intoxicating within the meaning of the chapter under which these proceedings were had, It. S. 1883, c. 27, § 33. As to liquors which fall within any of the enumerated classes, there is no question but that they are intoxicating. The statute so declares them. The same section provides that the above enumeration shall not prevent any other pure or mixed liquors from being considered intoxicating. Whether such liquors are intoxicating, is a question of fact to be proved by any competent evidence, the same as any other question of fact, and the force and effect of such evidence are for the jury to determine. The composition and character of the liquor, the amount of alcohol it contains, and in what quantities it produces intoxication, are all competent evidence tending to determine the question. The court cannot say as a matter of law that a liquor, which contains three per cent or more of alcohol, is intoxicating, and that one which contains a less percentage is not; but in every case this question must be determined by the jury, from all the evidence before them.

It was held in State v. Wall, 34 Maine, 165, that in a prosecution for the unlawful sale of intoxicating liquors it is the province, not of the court, but of the jury, to determine whether the liquor sold was or was not as matter of fact intoxicating. Later this court held that the manufacture or sale of unadulterated cider or wine made from fruit grown in this State was exempted from the prohibition of c. 27, but that whether such liquors were intoxicating under 11. S. (1883), c. 17, § 1, relating to nuisances, is for the jury to determine. State v. Page, 66 Maine, 418.

A case precisely in point is Commonwealth v. Blos, 116 Mass. 56. It is there hold that whether beer is intoxicating, is a question of fact for the jury, and that the fact that it contains a certain percentage of alcohol, is not conclusive upon that point.

The presiding justice erred in withdrawing from the jury the determination of the principal question of fact, and leaving to their decision only one of the collateral facts tending to establish the main proposition.

Exceptions sustained.