95 Ala. 25 | Ala. | 1891
Appellant was convicted under an indictment charging him with selling spiritous, vinous or malt liquors, without a license, and contrary to law.
The testimony for the State, as the bill of exceptions recites, tended to show that appellant sold “McLean’s Strengthening Cordial” and “Ginger Tonic”; that they were articles containing sufficient alcohol to produce intoxication; that persons bought them of appellant for the purpose of using them as a beverage “and did so use them and get drunk on them”; that appellant kept on hand a large quantity of said articles, which he sold regularly in quantities less than a quart. Appellant’s testimony tended to show that he sold said articles in good faith, as medicines; that they were put up for medical purposes, and used as such, and did not contain sufficient alcohol to produce intoxication, and that he did not “intentionally sell them as a beverage or intoxicant to any one.”
The indictment was found under a special prohibitory statute relating to the counties of Clark and Limestone. Acts 1880-1, p. 170. The first section of the act declares it unlawful for any person to “distill, brew, or otherwise manufacture, or sell, give away, or otherwise dispose of any vinous, spirituous, malt, or other intoxicating liquors, or any intoxicating decoction, mixture, compound, or bitters, whatever, in any quantity, or'for any use or purpose whatever, scientific, medical, or other use or purpose, within the limits of the counties of Clarke and Limestone.”
The only exceptions declared in the statute are, that it shall not apply to the use of wine for sacramental purposes, nor to the social or domestic use of such liquors in private residences, nor to the administering of such liquors, or compounds thereof, by regularly licensed physicians, when necessary, in their actual and legitimate practice.
The penalty prescribed for a violation of the statute is a fine of not less than one hundred, nor more than five hundred dollars, and also imprisonment in the county jail, or hard labor for the county, for not more than six months. Defendant was convicted and fined two hundred and fifty dollars. The exceptions reserved on the trial by appellant are confined to the refusal of the court to give to the jury certain charges, or instructions, requested by him in writing.
A defendant may be convicted, under an indictment such as this, on proof of a sale in violation of any special or local
None of the charges asked by appellant, and refused by the court, present a defense within any exception contained in the statute. They are based on the hypothesis, that if the tonic and cordial sold by defendant were medical preparations, and were sold by him as such in good faith, and not for use as a beverage, their misuse by the purchaser, though producing partial intoxication, does not render defendant liable under the statute.
Whether or not the cordial and tonic confessedly sold by appellant were medical preparations, or an “intoxicating de-coction, mixture, compound or bitters”, was a question of fact for the jury, and the bill of exceptions states that the testimony for the State tended to show such was their nature. If' so, the special statute prohibits their sale for medical purposes, in express terms, whether such sale is made in good faith or not. By the provisions of this statute, it is the fact of a sale of the prohibited article, and not the intent with which the sale is made, the statute denounces. The specific act of selling intoxicating bitters, or other compounds such as are described in the statute, constitutes the offense, irrespective of defendant’s belief, motive or intention. Ignorance of the character of the mixture, or even belief that it is not intoxicating, based on a mistake of fact, is no defense under this statute. And it has been declared generally, that where there is no exception, taking out of the general provision of the statute sales made 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.'— Carson v. State, 69 Ala. 235; Carl v. State, 89 Ala. 93; Com. v. Kimball, 24 Pick. 366; Com. v. Hallett, 103 Mass. 452; 2 Whart. Cr. Law, §§ 1506, 1507. In Carson v. State, supra, it is 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.”
Under this indictment charging the sale of spirituous, vinous or malt liquors, the real inquiry was whether the tonic or cordial sold by the defendant contained sufficient spirituous, vinous or malt liquors to make the same an “intoxicating mixture, compound or bitters”; and the rule for
Affirmed.