The crime of drunkenness as set forth in the Gen. Sts. o. 165, § 25, is “ drunkenness by the voluntary use of intoxicating liquor.” It is possible, therefore, that one may be drunk without being guilty of the offence described. Arrested in a public place, kept in custody till sober, and then brought before a court of justice, he may be able to show that the intoxication, which he admits existed, was produced by some other cause or means than the voluntary use of intoxicating liquor. If he does this, he is entitled to acquittal and discharge.
The right of an officer to arrest without a warrant reaches, by the St. of 1876, c. 17, the case of any person found in a public place in a state of intoxication, and does not depend on the intoxication having been produced by means which render the intoxicated person guilty of the crime of drunkenness. The mere fact therefore, that one arrested, by an officer without a warrant, for drunkenness, was acquitted at the trial of the complaint, is not conclusive evidence that he was .not drunk when arrested, nor that the officer was not in the discharge of his duty in making the arrest and keeping him in custody afterward, as a preliminary to making complaint against him. The in structions asked for by the defendant were therefore properly refused; and there is nothing in the exceptions to show that the instructions given were not warranted by the evidence in the case. Exceptions overruhcL