DISSENTING' OPINION.
GRAY, J.I do not think the judgment in this case should be affirmed. It will be seen from the instruction given in behalf of the state, that the court told the jury if the defendant sold “beer” to find him guilty. If the state’s witness had only testified that he bought beer of the defendant, then the instruction would have been proper, as under the statutes of this state and the decisions of the court, the word “beer” in its ordinary sense, means an intoxicating liquor, to-wit: a fermented liquor. [R. S. 1899; sec. 3032; State v. Houts, 36 Mo. App. 265; State v. Heinze, 45 Mo. App. l. c. 411; State v. Watts, 101 Mo. App. l. c. 660; 74 S. W. 376.] The information specifically charged a sale of “béer.” The defendant was notified that he was charged with having illegally sold “beer” and the state was bound to prove a sale of “beer” to secure a conviction. [State v. Watts, supra.; State v. Houts, supra; State v. Hesner, 55 Ia. 494, 8 N. W. 329; Williams v. State, 35 Ark. 430; Lindsay v. State, 19 Ala. 560; State v. Adams, 51 N. H. 568.]
The first instruction given in behalf of the state submits to the jury the single issue of a sale of “beer,” and the triers of the fact were plainly told that if the defendant sold “beer,” to convict him. It is my contention that the state’s evidence did not show a sale of “beer” as the term is commonly understood, and therefore, the instruction was wrong.
In the majority opinion the court says: “It is a well known fact that in localities where the Local Option Law has been adopted, so-called “beverages” are offered for sale, and they are used and become substi*202tutes for the ordinary intoxicating drinks. The Local Option Law not only strikes at such liquors and mixtures as were recognized as intoxicating liquors, hut prohibits the sale of beverages of every kind which contain alcohol in any per cent. ’ ’ This language was used by the court because the evidence in this case shows that the article'sold by the defendant was not ordinary beer, as defined in our decisions, but was a “beverage” sold as a substitute therefor.
Our local option statute, section 7243, recognizes that such beverages would he offered for sale’where local option has been adopted, as it reads: “It shall be unlawful to directly or indirectly sell, give way or barter in any manner whatever, any kind of intoxicating liquors or beverage containing alcohol, in any quantity whatever.” The question, therefore, in this ease is: Is the court authorized, where the information charges the defendant with selling some well known drink, such as beer, whiskey or alcohol, and the evidence shows that he did not sell any of those, but sold some beverage used as a substitute therefor, and the state’s testimony shows that it is doubtful whether it is intoxicating, to instruct the jury that if the defendant sold whiskey, beer or alcohol, to convict him, and ignoring the question whether the beverage contained alcohol in any quantity?
As to all such well known drinks as whiskey, brandy, gin, ale and beer, the courts, without proof, acting upon their own knowledge, will take notice that they are intoxicating, and will require no proof of the fact. But as to other beverages not so well known, and of whose character the 'courts could not take notice, I am of the opinion, as to all such, when the proof shows they were sold instead of the ordinary drinks, then it becomes a question for the jury whether they were intoxicating or whether they contained alcohol. And in my judgment this is a fair construction of the opinions of our courts. [State v. Houts, 36 Mo. App. *203265; State v. Watts, 101 Mo. App. l. c. 660, 74 S. W. 376; State v. Martin, 129 S. W. 931.]
There is no question hut what the gene'ral rule is as above stated. [Rau v. People, 63 N. Y. 277; Smith v. State, 39 S. E. 294; 113 Ga. 758; State v. Carmody, 91 Pac. 446, 12 L. R. A., N. S. 828; DeGraff v. State, 103 Pac. 538; Donithan v. Commonwealth, 64 S. E. 1050; State v. Piche, 56 Atl. 1052; State v. Gibbs, 123 N, W. 810; Locke v. Commonwealth, 74 S. W. 654; Gourley v. Commonwealth, 131 S. W. 34; Sizemore v. Commonwealth, 131 S. W. 37.]
In the New York case above cited, the court said: “As to such well known beverages as whisky, brandy, gin, ale and strong beer, the courts without proof, will take notice that they are intoxicating. But there are, doubtless, intoxicating beverages which are not so well known, and of whose character the courts could not take notice. As to all such, when one is charged with selling them in violation of law, there must be proof that they are intoxicating before a conviction may be had. The plain and obvious intention of the law is to prohibit the sale of all intoxicating liquors, and when the liquors are not such as are known to the courts to be intoxicating, their character as intoxicating or not must be determined upon competent evidence as a question of fact. ’ ’
In the late case of DeGraff v. State, supra, decided by the appellate court of Oklahoma, the following plain language is used: “In order that no one may misunderstand our position, and to prevent mistakes in the future, we suggest to county attorneys that the sale of substitutes of prohibited liquors, forbidden and made criminal by section 1 of article 3, constitutes a new and distinct offense, and that in prosecutions based alone upon the sale of such substitutes it may be well questioned if the sale of such substitutes would support an allegation of the sale of the originals. In such prosecutions the wise and safe course to pursue would be *204to set out the Mud of substitute soM, and bring it within the language of the statute. ’ ’
In. Smith v. State, supra, the Supreme Court of Georgia disposed of the point in the following language: “While the words ‘lager beer,’ in their ordinary use and acceptation, indicate an intoxicating liquor to warrant a conviction of selling liquor of that character, when the proof shows a sale of lager beer and nothing more, yet where, in a given case, there was affirmative testimony to the effect that a liquid which contained not exceeding two per cent of alcohol would not intoxicate, and that the liquid sold did not contain more than two per cent alcohol, it was erroneous to charge generally that all beer was intoxicating. ’ ’
In the case of Locke v. Commonwealth, supra, the Kentucky appellate court declares: “We think that it is a matter of common knowledge that the word ‘beer,’ when used without a prefix, signifies malt liquor, and that whenever malt liquor is not intended to be expressed by the use of this word, some prefix is used, such as root beer, ginger beer, etc.; but when the word ‘beer’ is used alone it means either common, lager, or bock beer.”
In State v. Piche, supra, the Supreme Court of Maine declares: “By the statutes of this state, wine, ale, lager beer, and all other malt liquors, and cider, as well as all distilled spirits, are declared intoxicating. As to liquors which fall within any of the enumerated classes, there is no question but that they are intoxicating. The statute so declares them. The same section provides that the above enumeration shall' not prevent any other pure or mixed liquors from being considered intoxicating. Whether such liquors are intoxicating is a question of fact, to be proved by any competent evidence, the same as any other question of fact, and the force and effect of such evidence are for the jury to determine.”
*205In State v. Carmody, supra, the Supreme Court of Oregon, after reviewing the authorities, says: “In a number of decisions it is held that the word ‘beer’ is a generic term, including both a class of alcoholic liquors and a class of non-intoxicating beverages, such as ‘root beer,’ ‘ginger beer,’ ‘spruce beer,’ and the like; and therefore it cannot be said, in its ordinary meaning, to imply an intoxicating drink, unless such import has been given it either by statute or by decisions of the courts. On the contrary, the preponderance of authority is to the effect that, when the word ‘beer’ is used, without any restriction or qualification, it denotes an intoxicating malt liquor; that, when thus occurring in an indictment, or in the evidence, it is presumed to include only that species of beverage. As long as laws for licensing the sale of intoxicating liquors have existed, brandy, whiskey, gin, rum, and other alcoholic liquids have been held to be intoxicating, simply because it is within the common knowledge and ordinary understanding that they are intoxicating. Beer is a fermented liquor made from any malted grain, with hops and other bitter flavoring matter. It is true that to a limited extent there are other kinds of beer, such as ‘ spruce beer, ’ ‘ ginger, beer, ’ etc. When beer is called for at the bar, the bartender would know at once, from the common use of the word, that strong beer — a spirituous or intoxicating beer— was wanted; and if any other kind was wanted, the word would be qualified. When, therefore, the word ‘beer’ is used in court by a witness, the court will take judicial notice that it means a malt and an intoxicating liquor. ’ ’
Prom all of the above decisions, the rule is established that where the state’s testimony shows a sale of beer and nothing further, the court is authorized to tell the jury that beer is an intoxicating liquor, and if the defendant sold the same, to convict him. But when the state’s testimony shows that beer, was *206not sold, but some substitute therefor, then the court is not justified in telling the jury if the defendant sold “beer,” to convict him. The point I have tried to make will be made clear by an examination of the above authorities.
The question of variance is not the only question in the case. Under the evidence it is a question of fact whether the beverage sold to the states’ witness contained alcohol in any per cent whatever. There is a declaration made by the defendant that he handled two brands, one containing one-half of one per cent alcohol, and the other about two per cent. This was only a declaration, and the truth of it was a question for the jury and not for the court.
While I do not concur in all the court has said about the question of variance in this case, I do not dissent from that part of the opinion of the majority of the court. The question of variance is one of difference between the allegation and the proof and does not apply to a bad instruction. In this case the court,.instead of submitting the question to the jury whether the beverage contained alcohol in any quantity, told the jury in plain words to find the defendant guilty if he sold beer, while all the testimony showed that “beer” 'was not sold.
I'believe the opinion of the majority is in conflict with the cases of State v. Houts, supra; State v. Watts, supra, and State v. Martin, supra, and therefore, ask that the case be certified to the'' Supreme .Court for final decision.