* Corpus Juris-Cyc. References: Criminal Law, 16 C.J., p. 571, n. 93; p. 926, n. 63; 17 C.J., p. 242, n. 47; Intoxicating Liquors, 33 C.J., p. 578, n. 83; p. 585, n. 97; p. 747, n. 55. Appellant was convicted of having intoxicating liquors in his possession and sentenced therefor, and appeals from said judgment to this court. *Page 730
The evidence was obtained by means of a search warrant. When the evidence was offered, it was objected to on the ground that the warrant was void because it was served after the expiration of the return day.
While the case was being tried, the defendant tried to show this to be true before the jury, but the court held that it was a question for the court to decide, and that the jury had nothing to do with the competency of the evidence, and offered to hear all of the evidence upon the point in the absence of the jury, and the evidence was, thereupon, produced before the judge and was conflicting. Some of the witnesses testified that the warrant was served at eleven o'clock on the return day while it was a valid and existing warrant. Some of appellant's neighbors testified that the search was made after twelve o'clock on the return day, the different witnesses giving time varying from twelve-fifteen to one-thirty at night. The judge, in ruling upon the admissibility of the evidence, stated that he was acquainted with the witnesses and knew their records, and that he believed the testimony of the officers that the warrant was served before midnight.
The appellant contended that the jury should have been allowed to pass upon the question of validity of the warrant as a question of fact, and if they found as a fact that it was served after midnight, they should have been allowed to return a verdict of not guilty upon that ground.
We held in the case of McNutt v. State, 108 So. 721, that the question of competency of the evidence, or whether there was probable cause in the search of an automobile without a warrant, was a question for the decision of the judge.
It is familiar learning that in admitting dying declarations and confessions, their admissibility is for the judge to decide, and we know of no law in this state which authorizes a jury to pass upon facts as to admissibility of *Page 731 evidence. They may, of course, take the facts into consideration, where they are pertinent as to whether the evidence is true in fact or not. But that rule does not seem to be applicable to this case, as there is no doubt as to the fact of the liquors being possessed, as they were found in the possession of the defendant by the search which followed.
It is also insisted that the court erred in giving the following instruction:
"The court instructs the jury for the state that if you believe from the evidence beyond a reasonable doubt that the defendant had in his possession a compound called `beer' or `home brew,' and that said `beer' or `home brew' was intoxicating liquor, at the time and place, and in the manner and form, as charged in the indictment, then you should find the defendant guilty as charged."
It is suggested that the statute allows parties to make and have possession of wine fermented from the juice of fruits, so long as same will only ferment by its own fermentation, and that this should have been submitted to the jury as a hypothesis in that instruction. There is no evidence to disclose how the home brew or beer was made, or what its ingredients were. The witnesses testified that they found the home brew or beer in the home of the appellant, and that it was intoxicating. It does not appear to have been wine, and as it is to come within the exception of the statute, the defendant should have so shown. It is not permissible to manufacture intoxicating liquors which ferment by their own fermentation through the laws of nature in all cases. Domestic wine alone is excepted, and there is nothing to suggest in the evidence that the intoxicating liquor here involved is a wine.
Appellant also complains that the court refused the following instruction:
"The court instructs the jury for the defendant that the state must prove, beyond a reasonable doubt and *Page 732 to a moral certainty, that the defendant was the original possessor of the liquor in question, controlled it, or owned it with the present right to deal with it to the exclusion of every other person, or in such a condition of facts under which one can exercise power over same at his pleasure, to the exclusion of all other persons."
The judge noted the following on this instruction:
"Refused because law does not require exclusive possession and control."
We think the refusal was proper. The instruction, when first given, was modified by the court to read as follows:
"The court charges the jury for the defendant that the state must prove beyond a reasonable doubt and to a moral certainty that defendant was in the possession of the liquor in question, controlled it or owned it, with the present right to deal with it and control it at his pleasure," — which instruction correctly gave the law applicable to the possession involved, but after this was so modified, the original instruction was re-asked and was refused as above stated.
We find no reversible error in the record, and the judgment of the court is therefore affirmed.
Affirmed.