Defendant was charged, under section 4621 of the Code of 1923, with possessing illegally prohibited liquors contrary to law.
The evidence for the state tends to prove that the officers went to defendant's house and "found two fruit jars and another half full of home-brew. It looked like home-brew. It was out on the water shelf in fruit jars in the water bucket." Prohibited liquors are defined by section 4615 of the Code of 1923. Among the definitions there given as to what constitutes prohibited liquors is:
"Brewed or fermented liquors and beverages by whatever name called."
The courts do not judicially know that "home-brew" is a brewed or fermented liquor or beverage. There was no evidence that the "home-brew" had fermented, or that it contained alcohol, or that it was suitable to be used for beverage purposes. The statute is penal and cannot be extended by implication to embrace liquids not clearly described as being a prohibited liquor. For a full discussion of this subject, see Anderson v. State, 20 Ala. App. 154, 101 So. 162, and Glaze v. State, 20 Ala. App. 7, 100 So. 629, and majority and dissenting opinion.
The motion for a new trial should have been granted.
The judgment is reversed and the cause is remanded.
Reversed and remanded.