Carl v. State

89 Ala. 93 | Ala. | 1889

OLOPTON, J.

The defendant is charged with the violation of a statute which declares, “it shall be unlawful for any person or persons to sell, keep for sale, or dispose of any spirituous, vinous or malt liquors, or other intoxicating bitters or beverages,” within the county of Escambia. — -Acts 1884-5, p.- 601. The evidence shows that the defendant sold a preparation, which is styled “Elixir Cinchona and Gentian Compound,” consisting of herbs and other substances possessing medicinal properties, and alcohol. The defense is, that it is a proprietary medicine, that he sold it in good faith as a medicine, and that it is not an intoxicant.

Whether a compound, consisting of drugs, barks, or other medicinal substances and spirituous liquor, is within the prohibition of the statute, depends upon the question, whether the article sold is, in reality, an intoxicating bitters. If the liquor and other ingredients are used and mixed in such manner and proportions as to counteract the intoxicating force and character of the liquor, fairly constituting a medicine, and rendering its use as a beverage practically impossible, it does not come within the statute. On the other hand, if the liquor is the predominant element, or sufficiently retains its intoxicating qualities so as to render the mixture reasonably susceptible of use as a beverage, or of substitution for the ordinary intoxicating drinks, it is within the •statutory prohibition. In State v Laffer, 38 Iowa, the rule of distinction is thus stated: “So long as the liquors retain their character as intoxicating liquors, capable of use as a beverage, notwithstanding other ingredients may have been mixed therewith, they fall under the ban of the law; but, when they are so compounded with other substances as to lose the distinctive character of intoxicating liquors, and no longer desirable for use as a stimulating beverage, and are, in fact, medicine, then their sale is not prohibited.” This test for determining what compounds may be considered intoxicating within the meaning of the term intoxicating bitters, as used in the prohibition laws, was adopted in the opinion delivered in this case on the former appeal. 87 Ala. 17.

The statute, under which defendant, is indicted, makes the specific act of selling intoxicating bitters indictable, irrespective of defendant’s belief, motive, or intention. His ignorance of the character of the mixture, or his belief that it is not intoxicating, based on a mistake of fact, is no defense. And where there is no exception, taking out of the general provision of the statute sales in good faith for medical purposes, the fact that the article was sold in good faith as a medicine, does not operate to acquit the defendant of a violation of the statute, if it be in reality intoxicating.—Com. v. Hallett, 103 Mass. 452; 2 Whart. Cr. Law, §§ 1506-1507; 38 Amer. Rep. 345. This doctrine was emphatically declared in Carson v. State, 69 Ala. 235. The defendant in that case, who was a practicing physician, and prescribed the bitters to a patient under his treatment, claimed an

acquittal, on the ground that he sold the bitters as a prescription, and in good faith. The statute under which he was indicted, contained no exception in favor of physicians, or any other persons. It was ruled that, there being no exception in the statute, such exception could not be incorporated by the court, and the fact that defendant sold the bitters to a patient in good faith, and as a prescription, was no defense. It was said: “The application of any other rule would be fraught with difficulty, if not impracticability. The frequency of imposture on the one hand, and abuse on the other, would be imminent, and sagacious foresight in this respect may have been a potent reason with the General Assembly for excluding exceptions which found place in former statutes relating to the same subject-matter.” These observations are especially applicable in view of the legislative history of the statute under which defendant was convicted. As originally enacted, it contained a proviso, that any licensed practicing physician in the. county may keep and dispose of, for medical purposes alone, spirituous or vinous liquors; provided that the quantity kept on hand shall in no case exceed five gallons, and they shall be disposed of in no other way than under prescription. By the amendatory act, passed four years thereafter, the exception and proviso were stricken out, so that the statute, as it now stands, contains no exception. The evident purpose of the amendment was, to avoid the devices which had been or might be adopted to evade the law. It is tantamount to a legislative declaration, that intoxicating bitters shall not be sold in-the county of Escambia by a physician, or any one else, for medical purposes; and, since the amendment, if the bitters be in fact intoxicating, a sale of them is illegal, although sold to be used as a medicine.—Com. v. Ramsdell, 130 Mass. 68. To incorporate an exception of sales of intoxicating bitters in good faith as a medicine, would render the statute easy of evasion, and virtually effect its repeal in this respect.

We do not mean to have it understood, however, that a preparation is considered intoxicating in the estimation of the statute, because it may intoxicate if used in unreasonable and excessive quantities. The excessive and immoderate use of any preparation, in which alcohol is used in sufficient quantity to preserve the other ingredients, may intoxicate; but the mixture does not fall under the ban of the statute because spirituous liquor is present. The true inquiry is, whether the liquor used is necessary to extract and preserve the medicinal properties of the other ingredients, and its distinctive intoxicating character is so counteracted, or greatly impaired, that its reasonable and ordinary use will not intoxicate' — whether it is, in reality, a medicine. If the compound, as one of the medical witnesses testified in respect to the elixir in question, would nauseate before it would intoxicate, it is not desirable, and is not reasonably susceptible of being used as a beverage, or as a substitute for the ordinary intoxicating drinks.

The charges given, and the refusals to charge, are in accordance with these views, except the refusal to give the instruction asked by the defendant, to the effect, that if the jury believed the amount of alcohol used is necessary to extract the medicinal properties of the herbs used, and to prevent fermentation; that the elixir was 'manufactured for medicinal purposes, and sold by the manufacturers as a medicine only; and that its reasonable and ordinary use will not intoxicate, then the defendant can not be convicted. This charge should have been given. "We discover no error in the rulings of the court on the evidence.

Beversed and remanded.