98 Ala. 610 | Ala. | 1893
Tbis action is on certain notes given by Wadsworth to F. P. & 0. L, Dunnam’ in settlement of an
Ginseng Cordial is not what is generally known as intoxicating liquor, such as whisky, brandy, gin and the like, nor, on the other hand, is it what is generally and properly known as medicine, or as a toilet or culinary article recognized as such in standard authority, the United States Dis-pensatory for instance, such as tincture of gentian, paregoric, bay-rum, cologne, essence of lemon, and the like, which, though containing alcohol and capable of producing intoxication, are not intoxicating liquors, bitters or beverages within prohibitory statutes. And it is not therefore to be declared as matter of law, either that this cordial is, or that it is not, within the provisions of the act referred to. Whether it is so or not is a question of fact for the jury under the instructions of the court.—Black on Intox. Liq. § 8; Intoxicating Liquor Cases, 25 Kan. 7 1; s. c. 37 Am. Rep. 284; Carl v. State, 87 Ala. 17.
On this issue of fact there was evidence — indeed, it was not controverted — that the cordial in question contained alcohol; and the evidence for the defendant was that the proportion of alcohol was so great as that the mixture was about as intoxicating as whisky. There was no pretense on the part of plaintiffs that the decoction was useful, or intended to be used, as an article for the toilet, or for culinary or mechanical purposes ; their sole theory was, that it was a medicine containing only sufficient alcohol to prevent fermentation ; but the only evidence adduced in support of this theory was, that “the mixture consisted of thirty parts of water, eight parts of alcohol, two parts of simple syrup and ginseng, and other roots and herbs possessing medicinal properties.” On the other hand, an expert testified for defendant that he had analyzed the cordial, and that the ginseng and other herbs it contained possessed no medicinal properties whatever. And the evidence further went to show that the cordial was not sold to or used by sick persons, but was sold to persons having no occasion for a medicine, and dr^nk by them to intoxication as a beverage. In
In giving many of the charges requested by the plaintiffs and in refusing some of those asked by the defendant, the court below proceeded on the idea that, aside from other considerations, “Ginseng Cordial” could not be said to be an intoxicating bitters or beverage, if it produced intoxication only when used unreasonably, inordinately, immoderately or excessively, and would not have this effect if used reasonably and moderately, or in ordinary and not excessive potations. Thus charge 2, given for plaintiffs, in its last sentence declares : “If the bitters sold in this case would not in ordinary and reasonable use intoxicate, the jury must find for the plaintiffs.” Charge 4 for plaintiffs is in the following language: “It is not the question whether it was possible to use the bitters as an intoxicating beverage, but whether it is reasonably susceptible of such use, and it must be such by moderate and practical use, not by immoderate or excessive use. If the jury believe from the evidence that the bitters must have been drunk immoderately or excessively in order to make it practically or reasonably susceptible of use as an intoxicating beverage, then they must find for the plaintiffs. Charge 7 of plaintiffs’ series is as follows : “If the evidence shows that the bitters sold by plaintiffs were only intoxicating when used excessively or immoderately, then the jury must find for the plaintiffs.” And so with several other instructions given at plaintiff’s request, while one or two charges asked by defendant and refused were intended to instruct the jury that the decoction might be held to be an intoxicating beverage, notwithstanding moderate use of it would not produce intoxication. In giving these charges for the plaintiffs, the court below, in our opinion, set up a false criterion for the determination of the question involved. The words employed, in their construction are, of course, to be taken in their ordinary significance. The word “intoxication,” as therein used, means an abnormal mental or physical condi
What we have said will suffice for tbe guidance of tbe Circuit Court on another trial.
Reversed and remanded.