Opinion, of the Court by
Judge Clarke —Affirming.
Appellant was convicted of selling home brew, alleged to be an intoxicating liquor.
His first complaint is that the court erred in refusing to direct his acquittal because there was no competent proof the liquor was intoxicating. The two witnesses who bought it, however, testified without objection upon direct examination that they each drank a bottle of it, and that it was intoxicating,, and each was made to repeat the statement upon cross-examination..
*781It is therefore clear the competency of this evidence cannot now be questioned, and that it was amply sufficient to carry the case to the jury.
Neither of the cases relied upon, Gourley v. Commonwealth, 140 Ky. 221, 131 S. W. 34, and Deer v. Commonwealth, 195 Ky. 761, 243 S. W. 1028, lends any support to the contention, since they simply hold- that home brew, malt mead and the like are not judicially known to be intoxicating, and that therefore a conviction cannot be had for a sale thereof without proof that it is intoxicating.
The next and only other complaint is that the first instruction given by the court is fatally defective because it permits a conviction if the jury believe from the evidence, to the exclusion of a reasonable doubt, that the defendant, in Daviess county, Kentucky, and within twelve months next before the finding of the indictment, unlawfully sold, etc., without giving the date of the indictment or otherwise fixing the date of the sale.
The indictment, however, was read to the jury, and both the indictment and the evidence show that the sale was made within twelve months next before the indictment, and while the instruction is defective in'this respect, it is perfectly plain that the appellant was not and could not have been prejudiced thereby, since his only defense was a denial of the sale charged and proven to have occurred about the first of January, 19-24, and within less than two months before the indictment was returned. See Frey v. Commonwealth, 169 Ky. 528, 184 S. W. 896; Milburn v. Commonwealth, decided October 3, 1924.
Judgment affirmed.