Washington v. State , 40 Okla. Crim. 48 ( 1928 )

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Seminole county on a charge of selling intoxicating liquor, and was sentenced to pay a fine of $250 and to serve 180 days in the county jail.

The information charges that defendant sold a gallon of Choctaw beer containing more than one-half of one per cent. of alcohol, and capable of being used as a beverage. The witnesses for the state testify that Jeff Owens bought a gallon of Choctaw beer from defendant and paid him $2 for it, but had gone only about 20 yards when they were apprehended by the officers who seized the beer.

Several assignments of error are argued, but it is necessary to consider only one. That is, that the evidence is insufficient to sustain the verdict and judgment. There is no evidence that the Choctaw beer was ever analyzed, nor any evidence that any person tested it or that it contained any alcohol whatever. Choctaw beer is not made by any set formula, and the courts do not take judicial knowledge that it contains alcohol. It may or may not, depending on the manner in which it is concocted and the state of fermentation, if any. This has been many times decided by this court. Stanley v. State, 21 Okla. Crim. 166, 205 P. 775. Smith v. State, 30 Okla. Crim. 11, 235 P. 553; Horn v. State,31 Okla. Crim. 284, 238 P. 233; Rambo v. State, 31 Okla. Crim. 214,238 P. 869.

The case is reversed and remanded.

DOYLE, P.J., and DAVENPORT, J., concur.