(45 Misc. Rep. 311.)

#### PEOPLE v. COX.

(St. Lawrence County Court

November, 1904.)

*X*Criminal Law—Special Verdict—Effect.

On a prosecution for sale of liquor in a town in which it had been forbidden, where the jury returned a special verdict finding that the defendant had sold one pint of “malt rose,” that the liquor contained between .74 per cent, and 1.18 per cent, in volunte of alcohol, that defendant had at the time no liquor tax certificate, and that the traffic in liquors was unlawful, the duty was cast on the court of determining whether “malt rose,” so called, was “distilled or rectified spirits or fermented or malt liquor,” within Liquor Tax Law (Laws 1897, p. 207, c. 312) § 2, defining the term “liquors.”

*2.*“Liquors”—Statute—Construction.

Liquor known as “malt rose,” but containing between .74 per cent, and 1.18 per cent, in volume of alcohol, is within the Liquor Tax Law (Laws 1897, p. 207, c. 312) § 2, defining the term “liquors,” as used in the act, to include all distilled or rectified spirits or fermented or malt liquors.

Henry Cox was prosecuted for violation of the liquor tax law. •On special verdict. Finding of guilty.

Indictment for violation of liquor tax law in a town in which the liquor traffic had been forbidden by the last town meeting. The charging part of the indictment was that the defendant “unlawfully did sell to one Owen O. Wiard distilled and rectified spirits, wine, fermented and malt liquors in quantities less than five wine gallons at a time, to wit, two glasses of lager beer, without having paid any tax,” etc.

The jury brought in the following special verdict: “The jury finds that on the 31st day of August, 1904, the defendant, at the town of Potsdam, in this county, did sell and deliver to one Owen O. Wiard one pint of a certain liquor called ‘malt rose’; that said liquor then and there contained between seventy-four hundredths of one per cent, and one and eighteen-hundredths per cent, in volume of alcohol; that said alcohol was formed therein by fermentation, ■or added in the process of manufacture; that he had at the time no liquor tax certificate; and that the traffic in liquors in said town at said time was unlawful.”

Clarence S. Ferris, Dist. Atty., for the People.

Lowen E. Ginn, for defendant.

HALE, J.

The j'ury has cast upon the court in this case the duty of determining whether “malt rose,” so called, is distilled or rectified spirits, or fermented or malt liquor, within the meaning of section 2 of the liquor tax law (Laws 1897, p. 207, c. 312). Phil-put, the manufacturer of the beverage sold by defendant under the name of “malt rose,” testified that" one of the ingredients was the lager beer known as “export lager.” Mr. Williams, the chemist called by defendant, testified that, on the assumption that the export beer used by Philput was an average sample of American export beer, the mixture resulting from the ingredients enumerated by Philput would contain .11 per cent, in volume of alcohol. But the analyses of five samples of malt rose by Mr. Williams showed from .74 per cent, to 1.18 per cent, in volume of alcohol. The excess, amounting to from seven to ten times the original quantity, can be accounted for only upon the theory of fermentation, or the *126intentional addition of alcohol in some form. The resultant was therefore, to some degree at least, fermented liquor or distilled spirits.

The sole remaining question is the practical one—whether the quantity of alcohol is so small that the law ought to ignore it. It was in evidence, and is undisputed in this case, that Schlitz Milwaukee lager beer contains only 2.45 per cent, of alcohol. Clearly, a lager beer containing this amount of alcohol cannot be lawfully dealt in in a no-license town. If the contents of a bottle of this beer were to be diluted by two parts of water to one of beer, I have no doubt the resulting beverage would still be within the prohibition of the law, and yet it would contain a less percentage of alcohol than some of the samples of malt rose submitted to Mr. Williams. On the trial of this action, Philput, the manufacturer, was unable to determine by inspection whether a bottle shown him was malt rose manufactured by him, or lager beer. If the. product is manufactured as a substitute for lager beer, and sold either for the purpose of deceiving the purchaser or evading the law, the charity of the law should not be exercised towards it. In practically all of the trials in this court involving alleged violations of the liquor tax law in the town of Potsdam since the last biennial town meeting, the last line of defense has been that in any event the defendant could not be guilty of any offense because he only kept for sale or sold malt rose. I incline, therefore, to hold, after considerable observation in other cases as well as in this, that the article in question is peculiarly intended to aid in the evasion and defeat of the law, and that its sale with the quantity of alcohol shown to be contained is a violation of the liquor tax law.

The United States commissioner of internal revenue, passing upon a beverage called “beerine” in April, 1902, which contained .49 per cent, of alcohol in volume, held that the amount of alcohol was so small that he did not regard it as among those fermented malt liquors for the manufacture and sale of which a special tax is required to be paid. But the commissioner added:

> “This ruling will not apply, however, to the article called ‘beerine,’ which contains a larger per cent, of alcohol, or in which a larger proportion of lager beer is used. On account of the similarity of the article to lager beer, and the name given to the beverage, also the fact of its seeming to be intended as a substitute for fermented malt liquor or lager beer, dealers will be liable to more or less surveillance on the part of internal revenue agents or local revenue officers.”

I am informed that the above ruling has been reversed by the Treasury Department, and that it is now held by the department that dealers in like preparations must pay the special tax.

I therefore hold that the facts prove the defendant guilty of the offense charged in the indictment, and give judgment accordingly.