There was evidence tending to show that the defendant was engaged in business as a retail dealer in beverages, and that there was found in his possession at the place where that business was carried on quite a varied assortment of prohibited liquors. That the existence of such a state of facts furnished some support for an inference that the defendant maintained an unlawful drinking place, as charged in the indictment, seems too plain to require discussion, especially in view of the prima facie import given by the statute to one’s1 possession of such things at such a place.
The solicitor asked a witness for the state the following question: “Mr. Bell, I will ask you to state whether or not you have seen beverages sold in the defendant’s, place of business within 12 months before the finding of the indictment in this case, and if you have seen, at the defendant’s place of business, any beverages sold of the color and odor of liquor.” The defendant’s objection to the question having been overruled, the witness gave the following answer: “I can’t say that I ever saw the defendant sell liquor of the odor of intoxicating drinks. Within 12 months I have seen beverages sold at the dedefendant’s place of business that had the color of liquor.” The defendant duly excepted to the action of the court in overruling his motion to exclude the answer of the witness; the motion being based upon the ground, among others, that the evidence was illegal, irrelevant, and inadmissible. In such a prosecution as the present one the statute (Acts Special Session 1909, pp. 63, 93, § S2j4) permits the state to give in evidence the fact that *152the beverage which the evidence may tend to show that the defendant sold or otherwise disposed of possessed “the same color, odor and general appearance, or the same taste, color and general appearance of a prohibited liquor or beverage.” Evidence that a beverage has the color, odor, and general appearance of whisky, for instance, or that it has the taste, color, and general appearance of beer, has some tendency to prove that it is a prohibited liquor within the meaning of that statute. But it cannot be said that proof of the mere color of a beverage has a logical or legitimate tendency to identify it as a prohibited liquor. It is not believed that it is within the intention of the statute to permit one to be convicted of an offense against the state’s liquor laws by evidence having no more tendency to identify a beverage disposed of by him as whisky than it has to identify it as tea. It is a matter of common knowledge that evidence going no further than to show that a beverage looks like liquor does not legitimately tend to show that it is in fact a prohibited liquor. The groups of fact mentioned by the statute — the evidences furnished by both the senses of sight and smell, or by the two senses of sight and taste — have some probative value on an inquiry as to whether a given beverage comes within the prohibited class. The isolated feature' of the color of the beverage is not entitled to any such probative effect. The mere circumstance that a beverage has the color of liquor does not furnish a support for an inference that it is in fact a prohibited liquor. The court was in error in overruling the defendant’s motion to exclude the answer of the witness above quoted.
Reversed and remanded.