in 149 S. W. 1094, the same court held (quot- | were not sold to a resident of the plaintiff's ing from the syllabus):

had been found in vacant store adjoining defendants' regular place of business, and that there was a beaten path between the cellar of Dec. 23, such store and the cellar of defendants' regular place of business, the question of whether the vacant store was used by the defendants as a hiding place for liquor which the defendants sold, or intended to sell, at the regular place of business, held for the jury.

Whether

1. Intoxicating liquors 238 (3)
liquor was intoxicating held for the jury.
In prosecution for maintaining a liquor
nuisance, positive uncontradicted testimony that
liquor introduced in evidence by the state, not
only contained alcohol, but was alcohol, held
to take the question of whether the liquor was
intoxicating liquor to the jury.

2. Criminal law 1172(1)-Charge referring
to liquor in evidence as "ordinary, drinkable
alcohol" held not projudicial to defendants.
In prosecution for maintaining a liquor nui-

sance in which witness had testified that liq-
uor introduced in evidence was "straight alco-
hol, grain alcohol," and also that it was “ordi-
nary, drinkable alcohol," charge, referring to
such liquor as "the small bottle of alcohol,"
and submitting question of whether it was
other than what witness had "testified it to be,
ordinary, drinkable alcohol," held not prejudi-
cial to defendants.

3. Criminal law 304(2), 862-Trial court and jury presumed to know what world

knows.

What all the world knows and discusses, the trial court and jury may be presumed to know.

4. Criminal law 862-Jury could take judicial notice that liquor testified to being alcohol is intoxicating liquor.

Under Rev. St. c. 127, § 21, as amended by Laws 1919, c. 235, the jury, in prosecution for maintenance of liquor nuisance, had the right to take judicial notice of the fact that liquor introduced in evidence, which had been testified to as being alcohol, was intoxicating liquor.

5. Criminal law 452(I)-Officer who seized liquor competent to testify as to nature thereof.

In prosecution for maintenance of liquor nuisance, testimony of officer who seized liquor was competent to show the nature of its contents.

6. Intoxicating liquors 233 (2)-Testimony as to liquor found in vacant store adjoining defendants' place of business held admissible.

Where indictment charged maintenance of liquor nuisance in "a certain place, to wit, a tenement there situate," without specifying any particular place, testimony that liquor was found in a vacant store adjoining the regular place of business of the defendants, and that there was a beaten path between the cellar of such vacant store and the cellar of the defendants' regular place of business held admissible. Whether

7. Intoxicating liquors 238(1)
liquor in vacant store adjoining defendants'
place of business was stored therein by de-
fendants held for jury.

In prosecution for maintaining a liquor nuisance, in which there was evidence that liquor

Exceptions from Superior Court, Cumberland County, at Law.

James Wallace and Harry H. Clancy were found guilty of maintaining a liquor nuisance, and they except. Exceptions overruled. Judgment for the State.

Argued before CORNISH, C. J., and SPEAR, HANSON, DUNN, MORRILL, and DEASY, JJ.

Clement F. Robinson, Co. Atty., and Ralph M. Ingalls, Asst. Co. Atty., both of Portland, for the State.

William C. Eaton, of Portland, for respondents.

HANSON, J. This was an indictment for maintaining a liquor nuisance, and was returned by the grand jury at the January term, 1921, of the superior court for the county of Cumberland.

The jury returned a verdict of guilty as to each respondent, and the case is before the court on exceptions.

[1] Exception 1 relates to State's Exhibit 2, claimed by the state to be intoxicating liquor. After the evidence was closed, and before the case was given to the jury, respondents requested the presiding justice to instruct the jury:

"That there was not sufficient evidence in the case to warrant them in finding that the contents of State's Exhibit 2 was intoxicating liquor within the meaning of those words as used in the statutes of the state of Maine."

The request was refused, and properly so. There was positive evidence, uncontradicted. that Exhibit No. 2 not only contained alco hol, but was alcohol. It was for the jury, not the court, to decide whether or not "the contents of State's Exhibit 2 was intoxicating liquor."

Exception 2 relates to the following lan

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

guage of the presiding justice in his charge to the jury concerning the exhibit in the case, and the testimony of the officer who seized the exhibit and testified to the nature of its contents, namely:

"Counsel for the defense has alluded to the Exhibit No. 2, the small bottle of alcohol" -and in the next sentence but one of the charge the following:

"You will judge of his knowledge of whether it was or was not [alcohol], and judge of whether you think there is any reason to believe that it was anything except what he testified it to be-ordinary, drinkable alcohol." [2] Respondents' counsel contends:

"That the words of the phrase underlined were objectionable and exceptionable because, in the first phrase, his use of the words 'ordinary, drinkable alcohol' were absolutely unwarranted and legally improper."

It is true that the witness did not use the exact words, "ordinary, drinkable alcohol," but he did testify in answer to defendants' counsel in cross-examination as follows:

"Q. What do you know about it? A. I know it is straight alcohol."

liquor, and when diluted, or mixed with other ingredients, if the resultant liquid used in sufficient quantity produces intoxication, that mixture is, under our law, intoxicating liquor.

The statute names "wine, ale, porter, strong beer, lager beer and all other malt liquors * * * and all distilled spirits, as well as any beverage containing a percentage of alcohol, which by federal enactment, or by decision of the Supreme Court of the United States, now or hereafter declared, renders a beverage intoxicating," and declares that "this enumeration shall not prevent any other pure or mixed liquors from being considered intoxicating." Rev. Stat. c. 127, § 21. as amended by Laws 1919, c. 235.

[3-5] It is idle at this late day, in view of the world-wide knowledge and action upon the matter of suppression of the liquor traffic, to further discuss or to seek to refine a phase of the subject settled ages ago. the world knows and discusses, the trial court What all and jury may oe presumed to know. It is a matter of common knowledge that alcohol is an intoxicating liquid. Used in sufficient quantity with other ingredients to produce intoxication, under our law it is an intoxicat

Further answering in cross-examination, ing liquor. When the question is submitted the witness repeated, "It is straight alcohol, as in this case, in addition to the affirmative grain alcohol;" that he could tell it was al- evidence, the jury had the right to take jucohol by smelling it; that it would burn, dicial notice of the fact that alcohol is an and that he had burned it, and that it did intoxicant. The testimony of the officer was not contain formaldehyde. In fact the only competent to show what Exhibit 2 was. other question raised as to Exhibit 2 was Commonwealth v. Leo, 110 Mass. 414; Com"whether it was a beverage or not," and up-monwealth v. Peto, 136 Mass. 155. In Comon this point defendants' counsel stated his position very clearly, so clearly in fact that the use of the words "ordinary, drinkable alcohol" could not have prejudiced the respondents. The presiding justice very properly left the question as to whether it was intoxicating liquor to the jury.

monwealth v. Peckham, 2 Gray (Mass.) 514, where in overruling exceptions to the refusal of the trial judge to instruct the jury that the commonwealth must prove that gin was intoxicating, and to an instruction that the jury might infer that it was intoxicating, the

court said:

The language objected to was not prejudi- "Jurors are not to be presumed ignorant of cial to the respondents, in view of the posi- what everybody else knows. And they are altion of counsel and the instructions as a lowed to act upon matters within their general whole. State v. Piche, 98 Me. 348, 56 Atl. knowledge, without any testimony on those 1052; State v. Starr, 67 Me. 242; State v. is knows, not only that it is a liquor, but matters. Now everybody who knows what gin McCafferty, 63 Me. 223.

*

* * that it is intoxicating. And it might Counsel cites Heintz v. Le Page, 100 Me. as well have been objected that the jury could 545, 62 Atl. 606, as defining the term "intoxicating liquor," viz.:

"So I repeat, any liquor containing alcohol, which is based on such other ingredients or by reason of the absence of certain ingredients that it may be drank by an ordinary person as a beverage and in such quantities as to produce intoxication, is intoxicating liquor. If its composition is such that it is practicable to commonly and ordinarily drink it as a beverage and to drink it in such quantities as to produce intoxication, it is intoxicating liquor."

The case thus cited but recognizes a conclusion reached in earliest times, and takes judicial notice that alcohol is an intoxicating

not find that gin was a liquor, without evidence that it was not a solid substance, as that they could not find that it was intoxicating, without testimony to show it to be so. No juror can be supposed to be so ignorant as not to know what gin is. Proof, therefore, that the defendant sold gin is proof that he sold intoxicating liquor. If what he sold was not intoxicating liquor, it was not gin."

[6] Exceptions 3 and 4 are based upon the same grounds. The indictment in the usual form charges the respondents with maintaining a liquor nuisance at Portland in said county in "a certain place, to wit, a tenement there situate." The "place" of business of re

(115 A.)

spondents was at No. 30 India street, and objected to, the presiding Justice instructed the state introduced evidence tending to show the jury as follows: sales of intoxicating liquor at that place, "So if you have a question about No. 32, you which has already been considered under Ex-will inquire what the evidence leads you to ceptions 1 and 2. Exception 3 is to the admission of testimony connected with a vacant store adjoining No. 30 India street, and numbered 32. The testimony objected to disclosed that No. 32, which had been vacant for some months, was bolted and barred on the inside, and inaccessible from the outside, except by breaking a door or window. Access was had in this manner by the officers, and the evidence shows that in that building was found a hide containing alcohol and whisky in large quantities, and that from the cellar of No. 32 a well-beaten path had been made from the stairway to and through a board partition to the cellar of No. 30.

Counsel in his brief urges that under such an allegation it is elementary that only one "place" is covered by the indictment, and cites State v. Lashus, 67 Me. 564, in support of his contention, but in that case the indictment for nuisance specified a certain locality, and the court held that evidence could not be offered by the state as to a nuisance in any other locality. That is the settled law in such cases, but, as has been seen, no specific place was named in the instant case, and, that being so, we think upon reason and the weight of authority that the evidence offered by the state was clearly admissible in connection with the other testimony in the case, and that the presiding justice was cor rect in his ruling.

It is doing no violence to settled rules of procedure to so hold, and, while there has been no similar case in Maine heretofore, the same necessities from the nature of the business involved have produced such cases in other states, and will no doubt furnish other

cases here.

"Now, if either of these places were used for the transaction of this business in any of these methods, any of these respects, which are de scribed in the indictment and are specified in the law, if either of these places, you find, have that characteristic, or if both of them have, and you find that '32' was actually used and occupied, although only for this purpose of hiding liquor, by the defendants, why, then, the defendants would be responsible under this statute and under this indictment."

We discover no error in the instruction. Analyzed, the language used presents but one question, Was No. 32 used by the respondents as a hiding place for intoxicating liquor which the respondents sold, or intended to sell, in No. 30? This was an issue in the case, a question of fact for the jury and the

conclude about No. 32 as well as No. 30. That
is a case of inferential conclusion from certain
known facts, or facts brought before you in
You
testimony which you find to be facts.
There is noth-
will conclude what they mean.
ing unusual about that. * * *
introduced here that kind of evidence in regard
Now you have
to the hide, in regard to the No. 32. Was
that No. 32 used in connection with No. 30
by these defendants? Was there a passageway,
a place there with these planks, these boards,
in it, in the partition, so arranged that the
Was there any-
body else using that No. 32? Was it accessi-
two places were accessible?
ble, as it stood, to anybody else? What the
sheriff said about a path there, the ladder and
the trapdoor, and the oilcloth, and the hide,
and the liquor-does that lead you to a con-
clusion as to the purpose of that liquor, as to
the control of that liquor as to the control of
that belongs in this case, and it is for you to
If you find that is so, then
find as to that part of the testimony what
your conclusion is as a matter of common
sense and a matter of common judgment."

that tenement?

The contention of respondents' counsel is that Nos. 30 and 32 were separate and distinct "places or tenements," "and that any contention to the contrary is absolutely without foundation." That contention was very properly submitted to and determined by the jury, and they found that the "places" were not separate and distinct, and in this they were fortified by the law and the evidence. The jury could find from the evidence that No. 32 was used in connection with No. 30 by these defendants. Such connection, once established, it follows that the illegal use of any part of the premises thus connected to form one place or tenement would constitute

a nuisance.

In Commonwealth v. Fraher, 126 Mass. 56,

the evidence offered under an indictment for

nuisance was in part that the defendant occupied the second story of a certain building for a dwelling, and the rest for other purposes, including one room on the ûrst floor, which contained a bar. There was no direct evidence of illegality in this barroom, but there was evidence of illegality in a rear room connected with it. The defendant asked that the government be required to elect as to the premises on which it relied to make out the nuisance, but the judge refused, and ruled that

The tenement might consist of two rooms used together, and immediately connected with each other, and "if the two were thus used, alternately or might be considered to be parts of one and the interchangeably * they same tenement, and the illegal use of either, while thus connected and used, would be an

Exceptions were overruled with the state-building the tenement was, and to rule that ment that

"The instructions given to the jury were appropriate and sufficient."

two separate tenements were disclosed, but the judge refused. The court said in part:

"The word 'tenement' in its modern use often occupied by a single person or family, in consignifies such part of a house as is separately tradistinction to the whole house. ** It may consist of a single room or of contiguous rooms, or of rooms upon different stories, if such rooms are controlled by a single person and are used in connection with each other."

5,

In Commonwealth v. Wallace, 143 Mass. 88, 9 N. E. 5, an indictment for nuisance, it appeared that the defendant was licensed to sell liquor at No. 107 South Water street. He also occupied the premises next adjoining. Evidence was offered that both premises were being used for liquor selling, and the defendant requested instructions that if the jury were satisfied that there was insufficient evidence of a nuisance in the adjoining premises, then all evidence regarding the use of these adjoining premises must be dis-eral tenements, it was not so divided, but was regarded in passing on the question of whether the defendant was conducting a nuisance at No. 107 by transgressing the terms of his license. The judge refused so to instruct, and exceptions were overruled, the court say-him in his regular place of business, is a

ing:

"The situation of the premises No. 107 South Water street, and of the premises next south of these may have been such in reference to each other that the use made of the latter by the defendant was properly some evidence that the former were kept by him for the illegal sale of intoxicating liquors."

In Commonwealth v. Buckley, 147 Mass. 581, 18 N. E. 571, the defendant was convicted of a nuisance, where it appeared among other facts that the defendant kept and sold liquors in a barroom on the ground floor, and also had a dumb-waiter connecting from it to a room on the second floor, where he also sold liquor. The defendant requested an instruction that the two rooms were separate tenements, to only one of which could the evidence offered be applied, and that the jury must acquit the defendant unless the government should elect on which tenement to seek a conviction. The judge refused this instruction, and ruled that the government must prove the single offense of keeping one tenement, but that such tenement might consist of one or several rooms; the jury having the right to decide which rooms made up the tenement. Exceptions were overruled; the court saying in part:

"The only tenement was the hotel. What rooms were included in that tenement was plainly a question of fact for the jury. There was evidence sufficient to warrant a finding that the room below was a part of it."

In Commonwealth v. Clynes, 150 Mass. 71, 22 N. E. 436, it appeared that two separated rooms were used in connection with the one purpose, and here too a conviction for nuisance was affirmed; exceptions being overruled. The defendant asked the judge to require the state to elect in which part of the

In Commonwealth v. Patterson, 153 Mass. 26 N. E. 136, separate buildings on the same lot were held part of the same "tenement" in a nuisance charge. The court said: "While it may have been divisible into sevused as one tenement and constituted one nuisance, the keeping of which was one offense."

[8] A nearby room, which a person uses in connection with the business conducted by

part of his "place of business" within the
purview of the general prohibition statute.
Bashinski v. State, 5 Ga. App. 3, 62 S. E.
577; Holland v. State, 9 Ga. App. 831, 72
S. E. 290; Mundy v. State, 9 Ga. App. 835,
72 S. E. 300; Flahive v. State, 10 Ga. App.
401, 73 S. E. 536.

We are of opinion that the instructions of
the presiding justice were correct.
The entry will be:
Exceptions overruled.
Judgment for the state.

(121 Me. 67)

WAUGH et al. v. PRINCE et al. (Supreme Judicial Court of Maine. Dec. 23, 1921.)

1. Towns 31-Have implied powers to defend and indemnify officers who have incurred liability in bona fide discharge of duty.

Among the implied powers of a town is that of defending and indemnifying its officers who have incurred liability in the bona fide discharge of their duty.

2. Words and phrases-"In good faith."

"In good faith" means honestly, without fraud, collusion, or deceit; really, actually, without pretense (citing Words and Phrases, First Series, In Good Faith).

3. Towns 31-Libelous statement in report of selectmen to town meeting held not made in good faith.

A statement in the report of the selectmen at a town meeting that among the assets of a culvert, was not made in good faith so as of the town was a claim against S. for larceny to authorize the town to indemnify them for the liability incurred, as the use of the libelous words was not called for by the requirements of the law in making the report,