#### STATE, Respondent, v. LA FLAMME, Appellant.

(219 N. W. 252.)

(File No. 6527.

Opinion filed May 4, 1928.)

*567
      *Atwater & Helm,*of Sturgis, for Appellant.

*Buell F. Jones,*Attorney General, and *Bernard A. Brown,*Assistant Attorney General, for the State.

BROWN, J.

Defendant, who conducted a pool hall in Lead City, was found guilty of keeping and storing therein, on *568September 16, 1926, intoxicating liquor with intent to evade the •provisions of the prohibitory law. On this appeal he assigns a number of errors in the'.reception of evidence and instructions of the court, and also contends that the evidence is insufficient to justify his conviction. Appellant contends that the court erred in refusing *to-*strike out as a conclusion the statement of a witness •that liquor he procured in defendant’s pool hall “had a tart taste "to it, and it was fermented — well, right- in the stage of fermenting.” .The witness did not undertake to state the alcoholic content . of the wine as argued by appellant, and the statement that what he drank was in a state of fermentation, in the act of fermenting, was no more a conclusion than wouldi be the statement of one that the milk which he drank was turning sour. It does not require a skilled chemist to determine when grape juice or any other fruit juice is fermenting; that is a fact which the observation of ordinary persons can determine.

Defendant complains that evidence was received which tended to show that he sold intoxicating liquors in his pool hall on •two occasions in the month preceding the date of the offense charged and before any evidence had been given tending to establish the offense charged. The first witness for the state testified •to facts from which the jury could have found that he knowingly had intoxicating liquors in his possession on .the premises on the date charged in the information, and proof of the sale of such liquors on various dates during the preceding month was properly received as tending to show knowledge on his part of the character of the liquor sold.

. He contends that the court erred to his prejudice in permitting witnesses who testified to these previous sales to state that defendant at the time invitedi them to gamble. This testimony came out in stating what was going on at the time the witnesses pro- . cured the liquor which they testified was intoxicating. The wit- - nesses testified that while they were drinking the liquor they played a little game with dice.

What was said-about gambling was merely., a part of .the narrative of what occurred while they were purchasing and drinking the liquor, and in our opinion its admission was not error. Even if it was, we do not see that it was prejudicial, in view of all the evidence. A witness, who stated that he was an “under-cover” *569man under the direction of the. federal prohibition enforcement officer, was asked on cross-examination as to the amount of his compensation and by whom he was paid, and, having answered on these points;' was further asked by defendant’s- attorney where he got the -money'With which t'o go to Sioux Falls and stay-about 'a •■month.. -The objection to-this line of'questioning was-properly sustained. The "witness having'fully answered as to the'amount ."and manner of his .compensation for his services' as under-cover .man, it was - of no concern to. the defendant where he got the m.oney to go-.to. S.iou-x Falls,. Defendant '.complains of an instruction to the effect that, if the jury should find he was conducting a •pool hall and selling'soft'drinks in'thé place-charged in the infor-ma'tión and that he kept and -stored intoxicating liquors therein, he was violating- the provisions of the intoxicating liquor law. The criticism is. that this. removed from the consideration Of'the jury the question.of knowledge.and intent oh.the part'of the defendant. But in another-portion of the-charge the court instructed the jury - that: -

“Intent necessarily means a knowledge on the part of defendant that the liquor in question was intoxicating, and unless you find that defendant knew that said liquor was intoxicating you can-mot find hind guilty as'-charged.” -

The exception to tlie instructions cannot be sustained.

'  -It appears that defendant procured through another person in Lead City barreled grape juice and that this was-not-'intoxicating- liquor, -and it is defendant’s ..contention that this alone is what he kept or sold, but chemical analysis of the liquor sold by him to the witnesses for the state showed an alcoholic content of 6 to' 9 .per cent,’ and there is testimony to the effect that the defendant said he had put raisins and sugar in the barrel to give the contents “a kick.” The question of the intoxicating character of the liquor was submitted to the'jury under the proper instructions, and we cannot say that the verdict is not supported 'by the evidence. - Other assigned errors have been carefully -considered, but we find nothing- that would warrant a reversal. Judgment’ and order appealed from are affirmed.

POLLEY and SHERWOOD', JJ., concur.

CAMPBELL, J-, concurs in result.,

BURCH, P. J., not sitting.