(2 of 2)
The decision does not greatly alter the force of the Volstead Act. That Act forbids the manufacture, etc., for sale, of intoxicating beverages and defines such beverages as those containing more than ½% of alcohol. But tucked away in the Act is a sentence which says:
"The penalties provided in this act against the manufacture of liquor without permit shall not apply to a person for manufacturing non-intoxicating cider and fruit juices exclusively for use in his home. . ."
Federal Judge Morris A. Soper interpreted this to mean that the home juicemaker was exempt from the arbitrary definition that ½% alcoholic content makes a beverage "intoxicating." For beverages on sale, he held that the ½% criterion was legal and unassailable, but within the walls of a man's home what he made exclusively for his own use was not to be so strictly governed.
Judge Soper therefore charged the jury that, for the purposes of this case, "the question for you to determine is whether these articles were intoxicating in fact. . . . Intoxicating liquor is liquor which contains such a proportion of alcohol that it will produce intoxication when imbibed in such quantities as it is practically possible for a man to drink. . . . Perhaps I might interpolate here that the intoxication in this law means what you and I ordinarily understand as average human beings by the word 'drunkenness' . . ."
As far as regards the two counts charging John Philip with maintaining a public nuisance, the Judge instructed the jury to return a verdict of not guilty, since none of the questionable beverages was sold.
Then the jury went out to determine whether wine containing from 3.34% to 11.64% of alcohol and cider containing 2.7% alcohol was intoxicating in the ordinary meaning of the word. For 17 hours the jurymen were closeted. Two of them held out for a verdict of guilty. At last they gave in. "Not guilty."
John Philip, shaking hands vigorously, exclaimed: "Well, boys, you can make all the cider and wine you want now."
Then he added more formally:
"Independent of the verdict, the opinion of Judge Soper to the effect that fruit juices and cider made in the home for use there must be intoxicating in fact and are not limited to ½% alcoholic content, fixed by other sections of the act to regulate other beverages, is of the utmost importance.
"It strengthens us tremendously in our position in asking Congress to give us light wines and beer. It proves what I have always maintained—that the Volstead act is hypocritical, crooked and marked by two standards. . .'