#### Commonwealth *v.*Nunamaker, Appellant.

*Criminal procedure*— Charge *of the court*— Reasonable doubt— *Insufficiency.*

A charge of the court on the subject of reasonable doubt is improper and insufficient when the jury might have deduced therefrom that the ease was governed (1) by the correct rule of law, or (2) they might have understood that the case was to be governed by the preponderance of the evidence, or (3) they might have assumed that the innocence of the defendant as to the offense charged in the indictment must be established beyond a reasonable doubt or even (4) that with a reasonable doubt present in their minds as to the guilt of the defendant, they could exercise their discretion as to returning a verdict of “not guilty.”

In the trial of an indictment for the possession of intoxicating liquors, a witness who has drunk the liquor may testify, if he knows, that it was whiskey. A chemical analysis is not absolutely necessary to prove the fact.

Argued October 7, 1924.

Appeal, No. 6, April T., 1925, by defendant, from judgment of Q. S. Clarion Co., Dec. Sessions, 1923, No. 14, on verdict of guilty in the *98case of Commonwealth v. Samuel Nunamaker.

Before Orlady, p. J., Porter, Henderson, Trexler, Linn and Gawthrop, JJ.

Reversed.

Indictment for selling liquor for beverage purposes. Before Harvey, P. J.

The facts are stated in the opinion of the Superior Court.

Verdict of guilty on which judgment of sentence was passed. Defendant appealed.

*Errors assigned*were, among others, the charge of the court, refusal to withdraw a juror for improper remarks and refusal to direct a verdict of not guilty.

*George F. Whitmer,*and with him *W. J. Geary*and *E. O. Golden,*for appellant.

*Don C. Corbett,*and with him *John M. Myers,*District Attorney, for appellee.

November 17, 1924:

Opinion by

Keller, J.,

On full consideration of the record in this case we are obliged to sustain the eighth and eleventh assignments of error. We might pass over either of them, if it stood alone, on the principle that it could not have misled the jury, (Com. v. Daily, 280 Pa. 59), but taken together, we are not satisfied that the jury were not confused by the court’s charge. After, instructing the jury substantially correctly on the subject of reasonable doubt, the trial judge went on to say: “Preponderance of evidence does not necessarily mean the greater number of witnesses, but it means the degree or condition of the proof which, considered in the light of all the evidence of the case, seems to be most reasonable, most consistent and most satisfactory” [8th assignment]; and then closed his charge by saying: “If you find beyond a reasonable doubt that this defendant did not commit the offenses *99charged, and it is not necessary to tell you that he need not have committed all of the offenses named in the indictment to make him guilty, but if he did not commit any of the offenses there under the' evidence presented to you, you can bring him in not guilty” [11th assignment]. From these three parts of the charge, the jury (1) might have deduced the correct rule of law, or (2) they might have understood that the case was to be governed by the preponderance of the evidence, or (3) they might have assumed that the innocence of the defendant as to the offense charged in the indictment must be established beyond a reasonable doubt, (Com. v. Wilson, 266 Pa. 236), or even, (4) that with a reasonable doubt present in their minds as to the guilt of the defendant, they could exercise their discretion as to returning a verdict of “not guilty.” See Com. v. Rider, 29 Pa. Superior Ct. 621.

We find no reversible error in the remaining assignments. The lower court did not abuse its discretion in refusing to withdraw a juror and continue the case, in the circumstances here present; nor did it err in refusing defendant’s request to direct a verdict of not guilty at the conclusion of the Commonwealth’s case: Com. v. Sonis, 81 Pa. Superior Ct. 205. A witness who has drunk liquor may testify, if he knows, that it was whiskey. A chemical analysis is not absolutely necessary to prove the fact: Com. v. Retacco, 82 Pa. Superior Ct. 79.

The court below rightly held that under the single count in this indictment evidence of violations of the Woner Law (Act of May 5, 1921, P. L. 407) was not admissible. While the saving clause (section 15) of the Act of March 27, 1923, P. L. 34, provides that as to crimes committed prior to the date of its approval, offenders may be prosecuted and punished under and in accordance with the laws then in force, “as if this act had not been passed,” it does not authorize a prosecution for such prior offenses under the present act, and to *100include them in the indictment, a separate count would be necessary. See Com. v. Price, 80 Pa. Superior Ct. 291.

As the case goes back for a retrial it should be noted that under the Act of March 27, 1923, supra, an indictment which charges the defendant with the illegal possession, transportation and sale of intoxicating liquors in one count can be sustained only on the theory that they are connected with the same transaction and may be considered as phases of the same event or offense, (Com. v. Zeitler, 79 Pa. Superior Ct. 81; Com. v. Miller, 107 Pa. 276; Com. v. Lewis, 140 Pa. 561; Com. v. Mentzer, 162 Pa. 646; Com. v. Holstein, 76 Pa. Superior Ct. 74). There was not sufficient evidence in this case to connect the defendant with the sale of intoxicating liquors to Mineo; but only with the transportation of such liquors. And this transportation was not connected in any way with the alleged sale of intoxicating liquors to Grazier or Milford, on a different date and at a different place. On the retrial the Commonwealth should elect as to which offense it will proceed against the defendant.

The judgment is reversed and a new trial awarded.