Goode v. State , 87 Miss. 495 ( 1905 )

Truly, J.,

delivered the opinion of the court.

The third instruction asked by the defendant was properly refused. It did not state the law. The presumption of law is that every intoxicating liquor sold without authority of a license is in violation of law. TJpon a prosecution for an unlawful sale of intoxicating liquor, the general rule is that the state, by proving the sale and the intoxicating nature of the liquor, makes out a prima facie case authorizing a conviction.

There is, however, a certain class of liquors or preparations which, though intoxicating in their nature, may nevertheless be lawfully sold under certain circumstances by persons not having license to sell intoxicants, such as proprietary or pharmaceutical preparations prepared primarily as medicines. As to such compounds, their sale is not forbidden under any and all circumstances, but a criminal intent on the part of the seller must exist in order to make a sale thereof a crime. A druggist or other dealer having lawful authority to sell such preparations is not guilty of a crime on every occasion when he makes a sale, even though the purchaser, through a morbid craving for alcoholic stimulants, may convert the medicinal preparations into the medium to produce a drunken debauch. As said by this court in King & Wall v. State, 58 Miss., 737 (38 Am. St. Rep., 344), “one authorized to sell' medicines ought not to be held guilty of violating the laws relative to the sale of intoxicants because the purchaser of a medicine containing alcohol misuses it and becomes intoxicated.” Otherwise, every time a druggist or other dealer sold a bottle of any one of many recognized medicinal preparations, however innocent the sale might be on his part, he would be liable to a criminal prosecution, if the purchaser, though a stranger to him, should devote the preparation to the purposes of intoxication— and this, too, even though the druggist or dealer was ignorant of the intoxicating nature of the preparation sold. This is not the law. The true rule is that expressed in the case of King & Wall, supra. In that .case the instruction for the state, which was upheld, in effect charged the jury “that if the compound was intoxicating, and was sold by the defendants as a spirituous beverage, and not as a medicine, they ought to find the defendants guilty.” And that instruction clearly expresses the real test of guilt in the state of case made by this record. If three things appear from the evidence to the satisfaction of the jury they should convict — (1) -that the defendant sold the article; (2) that the compound was intoxicating; and (3) that it was sold by the defendant as a spirituous beverage, and not as a medicine. But all three of these elements of guilt must be proven in order to sustain a conviction, where the compound is intended primarily as a medicine. It is not enough that the sale should have been made by the defendant, and that the compound, if drunk to an excess, would be intoxicating; the evidence must go further, and show from the attendant circumstances of the sale, the conduct and demeanor of the parties, and all other things shedding light upon the transaction, that the sale was made by the defendant, not as a medicine; but as a beverage. “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 either 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 or 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.” King & Wall v. State, supra.

The instruction for the state does not comply with the rule announced. It charges the jury that if the defendant sold the preparation to the witness, and the witness bought the preparation as a beverage, and “the defendant asked no questions as to whether he wanted it to drink as a beverage or as a medicine,” then the defendant was guilty, if the compound when drunk to excess would produce intoxication. This was in effect, under the facts of this case, a peremptory instruction to convict the defendant. The record shows that appellant did not deny the sale; the uneontradicted proof by several witnesses is that the compound, if drunk to.excess, would produce intoxication; and the defendant admitted that he made the sale in the ordinary course of business, without asking any questions as to what disposition was to be made of it. The legal effect of this instruction was to say to the jury that-the mere fact that the defendant asked no questions when he made the sale was conclusive proof that it was sold by the defendant as a spirituous beverage. The instruction ignored the defense of appellant that he made the sale in good faith as a medicine. This was error. Under the facts of the case, it may be that the conduct of the defendant and the circumstances of the sale would be sufficient to justify the jury in deciding that the defendant did make the sale, knowing the compound was to be used as a beverage. While this may be true as a question of proof, it was error to charge that such conduct as a matter of law constituted proof of guilt. To this extent, also, the instruction was upon the weight of the evidence.

For the reason indicated, the judgment is reversed and the cause remanded.