Merkle v. State

37 Ala. 139

• Court: Supreme Court of Alabama
• Decided: January 15, 1861
• Status: Published

Opinion

R. W. WALKER, J.

It may be admitted, that the bill of exceptions excludes the idea, that the witness Thornton was at all aided by his knowledge of chemistry, in the formation of his opinion that lager beer is a fermented liquor. It is shown, however, that he had frequently drunk fermented liquors, and that he was able to distinguish, by' their taste, liquors which have undergone the process of fermentation. We hold, that such a witness, even though he may have no special knowledge of the science of chemistry, may be permitted to testify, that a particular liquor, which he has tasted, is, or is not, fermented. The answer to the question, whether a liquor has gone through the process of fermentation, does not necessarily demand a knowledge of chemical science, but is usually determinable by the senses; and consequently, the judgment of ordinary persons, having an opportunity of personal observation, and of forming a correct opinion, is admissible. — McCreary v. Turk, 29 Ala. 245 ; Wilkinson v. Mosely, 30 Ala. 572 , Ward v. Reynolds, 32 Ala. 384; Pullman v. Corning, 14 Barb. 174, 181.

[2.] The book, a portion of which was read in evidence, was shown to be a standard medical work; and under the rule adopted in Stoudenmeier v. Williamson, (29 Ala. 558,) the objection to the extract as evidence was properly overruled.

[3.] Under sections 3280 and 3281 of the Code, it is not necessary to the conviction of the defendant, that the liquor sold, delivered or given to a student or minor, should be intoxicating. The prohibitions of these sections extend to any fermented liquor which is commonly used as a beverage. There was, therefore, no error in the charge of the court.

Judgment affirmed.