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212 Pa. Super. 174

Commonwealth v. Erney

Superior Court of Pennsylvania

Decided March 21, 1968

Superior Court of Pennsylvania · decided 1968-03-21

Cited by 11 later decisions — most recently May 1997

11 state decisions

Key passage — most relied on by later courts

“MR. WIGGINS [Attorney for the Commonwealth]: Your Honor, at this time I’d ask you to take judicial notice of the Pennsylvania Bulletin Volume 22 Number 32 August 8th 1992 [at 4146-4155] under the heading Liquor Control Board Products Registered by Manufacturers as Malt or Brewed Beverages. These are malt or brewed beverages that are defined as any beer, lager beer, ale, porter or similar fermented malt beverage containing one half of one percent or more of alcohol by volume. The board intends to publish periodically additions to this list. I would ask you to take judicial notice that the following beers appear on this list, Busch and Busch Light, and I would ask you to take judicial notice that those two beers appear on the list and are on this list because they have been registered with the Liquor Board as having in excess of one-half of one percent of alcohol by volume. THE COURT: Ail right. Mr. Marlowe? MR. MARLOWE [Attorney for the defendant]: Your Honor, I would agree that those beers have been published in the Pennsylvania Bulletin. * * * * * * THE COURT: Ladies and gentlemen, the reason this is an important practice is — I should explain it to you. One of the statutes with which the defendant is charged with violating, I can’t remember the exact language, but furnishing or selling liquor or beer to minors. Under the liquor code, malt or brewed beverages is defined as any beer, lager beer, ale or porter or similar fermented malt beverage containing one half percent or m”

quoted by 1 later decision, including 446 Pa. Super. 395 - Commonwealth v. Harvey

“Any beer, lager beer, ale, porter or similar fermented malt beverage containing 0.50% or more of alcohol by volume, by whatever name such beverage may be called.”

quoted by 1 later decision, including 399 Pa. Super. 168 - Commonwealth v. Weller

Relies on 185 Pa. Super. 214 - Green Gate Inn Liquor License Case

Good law ✅— No negative treatment on recordhow we know

Decided 1968-03-21

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¶1 Opinion

Per Curiam,

¶2 This is an appeal from the grant of a demurrer in a prosecution for furnishing malt and brewed beverages *176 to minors, the basis of which was that the Commonwealth had failed to prove beyond a reasonable doubt that the beverage served was in fact that type of beverage which is specifically prohibited by statute. Commonwealth v. Hefferman and Brodski, 96 Pa. Superior Ct. 351 (1929).

¶3 Article IV, §493(1) of the Liquor Code, Act of April 12, 1951, P. L. 90, Art. IV, §493, as amended, 47 P.S. §4-493(1), provides that it shall be unlawful “for any . . . person to . . . furnish or give any . . . malt or brewed beverages ... or to permit any . . . malt or brewed beverages to be . . . furnished or given ... to any minor . . . .”

¶4 Article I, §102, defines “malt or brewed beverages” as “any beer, lager beer, ale, porter, or similar fermented malt beverage containing one-half of one per centum or more of alcohol by volume, by whatever name such beverage may be called.” (Emphasis added.)

¶5 The Commonwealth made no effort to prove that the beverage was a “malt or brewed beverage” as defined in the Code, apparently being content to rest on statements by the minors involved that they were served “beer” and that they saw “beer” being served to others.

¶6 The Green Gate Inn Liquor License Case, 185 Pa. Superior Ct. 214, 138 A. 2d 292 (1958), cited by appellant is inapplicable, since in that case the defendant was licensed to serve liquor and the men who testified as to intoxicating beverages being served were agents of the Pennsylvania Liquor Control Board, admittedly competent and specially qualified to judge the nature of the beverage.

¶7 The order of the court below is affirmed.

Weight, P. J., and Montgomery, J., dissent and would grant a new trial.
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