Carl v. State , 87 Ala. 17 ( 1888 )

SOMERVILLE, J.

The defendant, being indicted, was convicted of selling spirituous liquors without a license, and contrary to law. The article sold was labelled “Elixir Cinchona,” or “Cinchona Bitters.” The evidence on the part of the State tended to prove that it contained spirituous liquor sufficient to make it intoxicating in its ordinary use as a beverage, and that it was frequently sold and used as a beverage in the community, especially since the enactment of a local law prohibiting the sale of spirituous liquors in Escambia county, and that it was sold by the defendant more as a beverage than as a medicine. The testimony offered by the defendant, on the contrary, tended to prove that the decoction contained twenty per cent, of proof spirits, or only enough to prevent it from fermentation, and no more; that it was manufactured in good faith as a medicine, and that it was a valuable tonic and stimulant, and not as an intoxicant in its ordinary use; that it contained barks and herbs of known medicinal qualities, and was sold in good faith as a medicine, and not as a beverage.

The purpose of prohibitory liquor laws is to promote the cause of temperance, and prevent drunkenness. The mode adopted to accomplish this end is the prevention of the sale, the giving away, or other disposition of intoxicating liquors. The evil to be remedied is the use of intoxicating liquors as a beverage, rather than as an ingredient of medicines and articles for the toilet, or for culinary purposes; and the object of the law in this particular must not be lost sight of in its interpretation. It is true, and we have so held in Carson's case, that if the article sold was spirituous, or other intoxicating liquor, the fact that it was sold for medicine would be no defense, unless there was an express exception in the statute. But we observed in that case as follows: “We are not to be supposed as intimating that physicians or druggists would be prohibited, under such a statute as the one in question, from the bona fide use of spirituous liquors in the necessary compounding of medicines manufactured, mixed or sold by them. This would not be within the evils intended to be remedied by such a prohibitory enactment, nor even within the strict letter of the statute.” — Carson v. State, 69 Ala. 235, 241; Woods v. State, 36 Ark 36; s. c., 38 Amer. Rep. 22. We again said in discussing this same subject, in Wall v. State, 78 Ala. 417: “There may be cases, perhaps, where the bona fide use of a moderate quantity of spirituous liquor, in a medicinal tonic, would not alone bring a beverage [or decoction] within the statute.”

This question is exhaustively discussed in the Intoxicating Liquor Cases, 25 Kans. 751; 37 Amer. Rep. 384, decided in the year 1881. The Kansas statute prohibited the sale of “all liquors, and mixtures, by whatever name called, that will produce intoxication.” It was held not to embrace standard medicines, and toilet articles, not ordinarily used ás beverages, such as tincture of gentian, bay-rum, and essence of - lemon, although containing alcohol. Whether it embraced certain cordials, or bitters, was held to be a question of fact, dependent on the evidence as to their intoxicating qualities and ordinary use. It was said that “bay-rum, cologne, paregoric, and tinctures generally, all contain alcohol, but in no fair or reasonable sense are they intoxicating liquors, or mixtures thereof.” And as to the cordials and bitters, the question was said to be one of fact, which should be referred to the jury. “If the compound or preparation,” said the court, “be such that the distinctive character and effect of intoxicating liquor are gone — that its use as an intoxicating beverage is practically impossible by reason of the other ingredients — it is not within the statute. The mere presence of the alcohol does not bring the article within the prohibition. The influence of the alcohol may be counteracted by +he other ingredients, and the compound be strictly and fairly only a medicine. On the other hand, if the intoxicating liquor remains as a distinctive force in the compound, and such compound is reasonably liable to be used as an intoxicating beverage, it is within the statute, and this though it contain many other ingredients, and ingredients of an independent and beneficial force in counteracting disease, or strengthening the system. ‘Intoxicating liquors, or mixtures thereof;’ this, reasonably construed, means liquors which will intoxicate, and which are commonly used as beverages for such purposes, and also any mixture of such liquors as, retaining their intoxicating qualities, it may be fairly presumed may be used as a beverage, and become a substitute for the ordinary intoxicating drinks.”

In King v. State, 58 Miss. 737; 38 Amer. Rep. 344 (1881), the defendants were indicted for selling intoxicating liquor without a license, and contrary to law. The article sold was “Home Bitters,” a decoction composed of thirty per cent, of alcohol, and the rest of water, barks, seeds, herbs, and other like ingredients. It was alleged by the defendant to have been sold as a medicine. It was held that, if the compound was intoxicating, and was sold as a beverage, the jury should convict; but, if it was sold in good faith, only as a medicine, they should acquit. It was said: “One authorized to sell medicines ought not to be held guilty of violating the laws relative to retailing, because the purchaser of a medicine containing alcohol misuses it, and becomes intoxicated; but, on the other hand, these laws can not be evaded by selling as a beverage intoxicating liquors containing drugs, barks, or seeds which have medicinal qualities. The uses to which the compound is ordinarily put, the purposes for which it is usually bought, and its effect upon the system, are material facts, from which may be inferred the intention of the seller. If the other ingredients are medicinal, and the alcohol is used as a necessary preservative or vehicle for them — if, from all the facts and circumstances, it appears that the sale is of the other ingredients as a medicine, and not of the liquor as a beverage — the seller is protected; but, if the drugs and roots are mere pretenses of medicines, shadows and devices under which an illegal traffic is to be conducted, they will be but shadows when interposed for protection against criminal prosecution.” See, also, Wall's Case, 78 Ala. 417; Ryall's Case, Ib. 410. To the same effect, substantially, is the case of Com. v. Ramsdell, 130 Mass. 68 (1881).

We have quoted at length from the foregoing authorities, because they seem to be carefully considered, and furnish suitable tests for the determination of what may be considered intoxicating liquors within the meaning of our prohibition liquor laws, as accurate and just as seems to be practicable. We accordingly adopt the doctrine of these cases, as the correct rule for the government of this case on another trial.

The rulings of the Circuit Court are not in accord with this view, and for this reason the judgment must be reversed.

It was competent to prove the intoxicating qualities of the elixir, or bitters in question, by the experimental effect of its use.- Knowles v. State, 80 Ala. 9. Or the same fact could be proved by any witness who is shown to have had an opportunity of personal observation, or of experience, such as to enable him to form a correct opinion. He need not be a technical expert, and it is no objection that his statement of the fact is made in the form of an opinion. Carson v. State, 69 Ala. 236; Merkle v. State, 37 Ala. 139. So, it was proper to prove that this article was bought and used for a beverage, and drank as such by many persons in the community, or elsewhere. Its nature was illustrated by the uses to which it was put. The court did not err in its rulings on the evidence.

The judgment is reversed, and the cause remanded for a new trial.