Section 28-4-323


Published: 2015

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Section 28-4-323

Section 28-4-323Admissibility and effect of evidence showing similarity in color, odor and general appearance between prohibited liquor or beverage and beverage shown to be manufactured, sold, kept, etc., by defendant; applicability of rule as to admissibility, etc., of said evidence in proceedings for abatement of liquor nuisances, etc.

(a) In all prosecutions against any person for manufacturing, selling, offering for sale, keeping or having in possession for sale, bartering, exchanging, furnishing, giving away or otherwise disposing of prohibited liquors and beverages or for any one of the said acts, it shall be competent for the state to give in evidence the fact that the beverage which the evidence may tend to show the defendant had manufactured, sold, bartered, exchanged, furnished, given away or otherwise disposed of, possesses the same color, odor and general appearance or the same taste, color and general appearance of a prohibited liquor or beverage such as whiskey, rum, gin, ale, porter, beer and any other prohibited liquor or beverage. The fact that the beverage in question as above stated is of the same color, odor and general appearance or same taste, color and general appearance as beer shall constitute prima facie evidence that the beverage is a beer or a malt liquor or a substitute or device therefor and within the inhibition of the statutes of this state for the suppression of intemperance, and the like rule of evidence shall apply in respect to whiskey and the other beverages named, and, in the event the defendant claims that the beverage in question as above referred to is not within the inhibition of the statutes when it possesses the same color, odor and general appearance or the same taste, color and general appearance as a prohibited liquor or beverage, such as whiskey, beer or the other beverages named hereinabove, the burden of proof shall be upon him to establish to the reasonable satisfaction of the judge, court or jury trying the case that the beverage in question is not within the inhibition of the said statutes and that it is a beverage not prohibited by law to be manufactured, sold, offered for sale or otherwise disposed of.



(b) The same rule of evidence shall be applicable in all cases for the abatement of liquor nuisances and in all prosecutions for violations of statutes of the state for the suppression of the evils of intemperance when it becomes necessary to determine whether the liquor or beverage in question is a prohibited liquor or beverage.

(Acts 1909, No. 191, p. 63; Acts 1915, No. 2, p. 8; Code 1923, §4650; Code 1940, T. 29, §125.)