The evidence for the state tends to show that defendant was found in the possession of a barrel of what the witness called "beer." On cross-examination the witness said it was not lager beer, but —
"It was a preparation that they put up for fermentation or something that whisky is made of. It was almost ready to make. I don't know how long it had been put up."
There was no evidence that the beer had fermented or that it contained alcohol or that it was suitable to be used as a beverage. A person grinds apples, presses the juice, and puts it in a jar. The possession at that time is not a violation of law. He leaves it until it has fermented and becomes "hard." It then becomes an alcoholic liquor and his possession is a violation of law. The same is true of grapes or any other fruit from which a fermented liquor containing alcohol may be made. Likewise it is true of corn meal. The mixture when first made contains no alcohol; it may never contain any alcohol; until it does its possession is not a violation of the law. That it has reached a stage where it is a violation of law is a material ingredient of the offense and must be proven by the state beyond a reasonable doubt. Glaze v. State, ante, p. 7, 100 So. 629.
Prohibited liquors as defined by the statutes of this state are: (1) Alcohol, alcoholic liquors, spirituous liquors and all mixed liquors any part of which is spirituous; (2) vinous liquors and beverages; (3) malt, fermented or brewed liquors of any name or description manufactured from malt wholly or in part or from any substitute therefor; beer, lager beer; porter and ale; and other brewed or fermented liquors and beverages by whatever name called; hop jack, hop ale, hop weis, hop tea, malt tonic, or any other beverage which is the production of moltose or glucose or in which moltose or glucose is a substantial ingredient; (4) any other drinks, liquors or beverages containing one-half of 1 per cent. of alcohol; (5) any intoxicating bitters or beverages, etc., Acts 1915, p. 1, § 1; (6) all liquors, etc., made in imitation of any of the foregoing, Acts 1919, p. 6, § 1.
To constitute the crime of unlawful possession the act must be in violation of one of the foregoing statutes, and the burden is on the state to produce evidence of that fact. There was no evidence that the liquid found contained alcohol. We may therefore eliminate subdivision 1. It was not vinous. So we need not consider 2. There was no evidence that the liquor was fermented or brewed as condemned by 3. There was no evidence that as found it was suitable for a beverage or that it contained one-half of 1 per cent. alcohol, and so 4 goes out. It was not a bitters or a beverage containing alcohol, nor was it made as a substitute for any of the liquors, the possession of which is condemned under 5 and 6. The defendant was entitled to the affirmative charge. For this error the judgment is reversed and the cause is remanded.
Reversed and remanded.