40 So. 12 | Miss. | 1905
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—
For the reason indicated, the judgment is reversed and the cause remanded.