I cannot agree to the conclusion reached by my Brothers.
Section 4620 of the Code of 1923 provides, among other things, that:
"This chapter (i. e., the chapter dealing with the subject of 'Intoxicating and Prohibited Liquors') shall be liberally construed so as to accomplish the purpose thereof, which is to further suppress the evils of intemperance and secure obedience to and the enforcement of the laws of the state for the promotion of temperance, and for the suppression of the manufacture of and traffic in prohibited liquors and beverages, and to prevent evasions and subterfuges by which such laws may be violated."
Section 4615, Code of 1923, the first section in the chapter referred to above, defines the terms "prohibited liquors and beverages," and one of the definitions is as follows:
"* * * Other brewed or fermented liquors and beverages by whatever name called."
The prosecution in this case is for having in possession "home-brew."
I think the court judicially knows that this is either a "liquor or beverage." In fact, there is testimony, in addition to that stated in the majority opinion, which, I think, tends to show it. One witness stated, in reference to the substance which was found:
"Yes, sir; I say the cans had home-brew in them, but I did not drink any of it."
Another stated:
"It looked like home-brew and smelt like home-brew. When the cap was taken off, it spued up, boiled just like home-brew will do. I did not drink any of it."
Webster's New International Dictionary defines the noun "brew" as:
"That which is brewed or formed by brewing."
I think it clearly appears in this case that the substance for the unlawful possession of which this appellant was prosecuted, and which is denominated by the witnesses "home-brew," is, under the prohibition statutes, a "brewed beverage," and hence one of the prohibited liquors and beverages at the possession of which said statutes were aimed. Also, see Code, 1923, § 4650.
In my opinion, the judgment of conviction should be affirmed.