People v. Mueller

SHAW, J.

The defendant was convicted of an unlawful sale of alcoholic liquors in a district which had been declared “no-license territory,” under the provisions of the act generally known as the “Wyllie law.” (Stats. 1911, p. 599.) His appeal is from the judgment of conviction and from an order denying a new trial.

Specifically, the charge against him was that he “did willfully and unlawfully sell alcoholic liquor, to wit: wine, 'to one Sam Stephens, within no-license territory, to wit: in the city of Red Bluff, in said county (Tehama), said wine not having been manufactured on the premises where the same was sold,” etc.

[528]

Section 13 of the act declares it to be unlawful for any person, “within the boundaries of any no-license territory to sell, furnish, distribute or give away any alcoholic liquors, except as provided in section 16 ’ ’ thereof. It is not claimed that the case comes within any of the exceptions mentioned in section 16, and they need not he considered.

1. It was not necessary to aver that the wine alleged to have been sold contained one per cent, or more, by volume, of alcohol. The act forbids the sale of “alcoholic liquors” within “no-license territory.” Section 21 reads thus: “The term' ‘alcoholic liquors,’ as used in this act, shall include spirituous, vinous and malt liquors, and any other liquor or mixture of liquors which contains one per cent, by volume, or more, of alcohol, and which is not so mixed with other drugs as to prevent its use as a beverage.”

' Wine is a well known form of vinous liquor and it is common knowledge that it contains alcohol. It is an alcoholic liquor of the class described in the act as “vinous liquor.” Its character is so well known that the court takes judicial notice of these qualities and also that it contains considerably more than one per cent, by volume, of alcohol, that it is intoxicating when taken into the stomach and that it may be used as a beverage. (Black on Intoxicating Liquors, sec.

5;

23 Cyc. 61.) We are not aware of any ease holding specifically that judicial notice will be taken of the fact that ordinary wine contains more than one per cent of alcohol, but we do not doubt that it will. The fact itself may easily be ascertained by reference to any dictionary or treatise on the subject. (Cent. Dic.; Stand. Dic.; Webster’s Dic.; Enc. Brit., vol. 29.) The designation of the liquor as “wine,” therefore, is equivalent to a statement that it was a drinkable vinous liquor containing more than one per cent, by volume, of alcohol, and no further or more specific allegation was required. If there is any liquor known as “wine,” containing less than one per cent, by volume, of alcohol, it is a fact so unusual and exceptional that it need not be contradicted in the information. It is unnecessary to determine whether or not such fact would be a defense, if proven, for there is no claim that the wine sold by the defendant did not contain more than one per cent of alcohol.