STATE v. LAGER BEER, 70 N.H. 454 (1900)

49 A. 575

STATE v. LAGER BEER a.

Supreme Court of New Hampshire Carroll.
Decided December, 1900.

Whiskey kept for sale in violation of law is not subject to seizure upon a complaint charging the unlawful keeping for sale of lager beer and other malt, spirituous liquor.

LIBEL, for forfeiture of liquor kept for sale in violation of law and seized upon a warrant issued upon a complaint, the material part of which is as follows: “Hayes L. Whiting . . . did unlawfully keep for sale a large quantity of lager beer and other malt,

Page 455

spirituous liquor, to wit, one hundred gallons of lager beer and other malt, spirituous liquor.” Upon this complaint a warrant was issued, both lager beer and whiskey were seized, and the libel was subsequently filed.

Josiah H. Hobbs, solicitor, for the state.

Arthur L. Foote, for the claimant.

BLODGETT, C. J.

So far as appears, the libel may be maintained against the lager beer. The complaint upon which it was seized sets forth with sufficient legal certainty the kind and quantity of the liquor (State v. Jenkins, 64 N.H. 375), alleges that it was unlawfully kept for sale, and charges that it was spirituous. By statute, “any spirituous liquor kept for sale in violation of law . . . may be seized,” etc. (P.S., c. 112, s. 30), and “by the words . . . `spirituous liquor’ . . . shall be intended all spirituous or intoxicating liquor, . . . unless otherwise expressly declared.” Ib., c. 2, s. 33. There being no such declaration as to fermented intoxicating liquor, lager beer, if intoxicating, is consequently subject to seizure and forfeiture (State v. Lager Beer, 68 N.H. 377); and whether it is intoxicating may be shown by evidence. Walker v. Prescott, 44 N.H. 511, 512.

As to the whiskey a different case is presented, and the libel cannot be maintained. Being produced by distillation and not by fermentation, the whiskey was not subject to lawful seizure upon the complaint, which, it must be borne in mind, was for unlawfully keeping for sale “lager beer and other malt, spirituous liquor” only.

Case discharged.

All concurred.

Page 456