Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1905-07-26

Attorneys all over Mdllt ana eSpe-
cil!lN at Bangor, who have rumsellers
III: riirfts are much exercised over one
VI TN. eases In the Maine report Just
ISSUED. 1t appears to knock the props
from under one of their most promising
platforms. that of the plea of Cno beer
m, decision is that III the case OF
STATE ". Michael O'connell of Lewis
iru. I,.-scripts have previously been
n"t.+I. but the fun opinion is even
\. ~. dr,laratiVc.
O'Conncll WAS convicted of illegal
.l.. of Intoxicating liquors. Against
HIM there were two indictments for
.iid sale. one being under the nuisanc"
act. TIN. other as II common seller. Tn"
liquor sold WAS shown by cVidrIC" 10
~. Iun ANA counsel for the defence ar
Su.i that the beer was not intoXicat-
INK and that the State did not claim
that il was: that the only claim the
state made was that there was some
malt In the beer ANA that because al
that II came within the pale of the pro
hlbtory law under The clause "and all
other malt liquors" The opinion Of the
court is drawn by Justice Powers ANA
Is as follows:
TWO indictments. on" for maintain
ing il nuisance under Il. :. nSS3), Chap
ter Il. Paragraph |. ana the other for
hrin% Il common seller of intoxicating
liquors under K. :. nSS0. Chapter -.
Paragraph b. The evidence in each
c,tSc Was of tn" sale by the respondent
% t'nU beer, brrWrd from malt and
containing 80 per cent of alcohol. \
verdict Of guilty WAS returned in each
c,is". Counsel for respondent requested
the following Instructions:
Chat the jury must be satisfied be-
ynnd Il reasonable doubt:
i. That malt entered into the compo-
siti"r az this beer as Il substantial in
grelicnt.
Il. That if malt was used. but to such
y snail amount that the alcohol ger
min ted therefrom was not sufficient to
iru'lur" mtoXiCation. then the respond
~ must br discharged
q. That If malt was used to such 4
small amount that the alcohol grrmi-
last"l th"rcfrom together with the al
"'h"l terminated from the glucose. adj
llitt"dly in the beer. amounted to-
G"th"r but to 2.36 ner cent. then the
jdry must be satisfied that the beer is
irt"YiraiinS. in fact before they could
inid III" respondent guilty" The pre-
;:ding Justice declined Ia 60 instruct the
Jdry. aid TO such refusal exceptions
Wa" allowed to each case.
Rrn'h = \ was not given in terms The
1u'N w"r" instructed that if tn" beer was
'Halt h"upr tin statute declared it to =.
int"Ni iiinG: therefore thu question for
N'r' W consider il whctI"r this beer was
= r"lt lipucr ana is a NAL; liquor. wh.th-
e. it WIS Trudu'c from malt Il it WAS.
Il'n 4 - mt"NirItmE. IT II MIS- pro
'I'h'ri - IN H,.lli. malt must have, N
''l' into II Ie substantial ingredient
TIN ."-tru.tI"u actually given was quite
a. ltt"THt'l'. Il. I'll" Il 'fcndlut rs III" IN
s.i','Iun r'+it' .st''I. and II i NJ ground
hr 'NrtplIpn that the exact language OF
MI" '"lu'Nt was not adopted ~ the pre-
-atug n~tirr.
t;.Il"sts L. and g ar. hIs"d upon the
:.'amd that Notwithstanding the jury
cnf mud that tn" beer WITS i malt Ii
anon, Wlr-h tin. Legislature mas declared
:" h'- Illustrating and th' sale of which
u hts hV "Npi.sS act prohibited. in order
L. ''uNIrt III" respondent TIA" jury must
4" nih'r and lind hat II WAS int"Xicat /
~ tr f;t.t. Revised Statutes 1SS::. &. ~
T1ruP,iih -. amount I" i prohibition nl
tn >II" at malt liquor While the l.egis-
l'tur. ,Inu"t maxi that Intoxicating
With - IN fact not Intoxicating. it may
ri"lIht ia" sale ct =r'ciii" article. as
\ his d"u' in this cl~' ma IFS right "a
~ \" a., clearly Il constitutional exercise
90 tho polio" power The issue was
wrti.r the defend tut solid malt Liquor
Il h- did it Wis in violation of the stat
ni' and II was not necessary IN order t.
.sIlh,Ish bis guilt. TOR III" Jury to 90
inr'l.r. revise H. Judgment of the Leg
.-liturr and drtrrnu" whether malt Ii
"f"r WIS ar WIS not IN fact intoXicttlng
'"ru IS Antilles. l. Gray. 8: stat" Ns
"nnIr.-S. IL r. l. Ml. STATE IS. Gravclin
y 4; l. M. com. yS Br' 4fnrd. Ill Mass
- Tia, Jury W. property instructed that
81 II were. a malt nuIur il was inmate
VA how much alcohol i r"ntaincd;;
l.ll,r the jury pr''St nt"d the iollowinE
Un' Stlon Ia the court:
"pii the court ruiz. that. If the beer
~ question contained amy malt. it WIS =
matt lItIuor'
Ia reply the rr"siding Justice said: Il
Instructed you. ANA I now instruct Won
That II YOU find beyond any reasonable
Lrrwed from malt. it was malt beer an'
hnrS within the prohibition OF th'
statute"
The presiding Justice was not bound t
Starr d Maine. ~: State VS.. Wall. )
Maine 1s, While the court should de-
m 60 the jury legal terms to "hlcn ~,
lIw :ias attached 4 Specihc meaning, II
is not required to define words in CON
mon and ordinary use the Gehnitlon iIl'
meaning of which jurors are presume
10 understand as well rs the court Darl
Ing vs.. Dodge. ~ Maine, 3U .oIi;; y,
Bios. IL Mass, Sc: Com. VS.. Clrroli. IL
Mass 4n"
BY necessary implication n malt beer l.
n beer brewed from malt ana the statr
ment Of that fact could not have oe'i
prcIudical to the respondent The pre-
siding Justice did not undertake to ans"tl
the question propounded' put s slItr,ction.
Grated in another form the lnstr tr,,n, u;
You. and / now instruct YOU" that mai
liquor comes within the prohibition OF IN
statute: The Jury must have ;,no ,ts in
strrrtions given. In both cases. excep'io"
ovcfruled'