definition.

Evidence

(13 Okla. Crim. Rep. 604, 166 Pac. 77.) state, and commonly sold as a pro- is an alcoholic one, and a liquor, in prietary medicine.

order to come under the ban of the Dr. W. G. Short, a public drug law; must contain

Intoxicating and food inspector, testified that the more than 1 of 1 liquor concoction was a proprietary medi- per cent alcohol, or cine, and was commonly sold in drug a sufficient quantity of it, in a listores throughout the state of Okla

quor or compound capable of being homa; that it was not intoxicating. used as a beverage, to intoxicate a

The proof on behalf of the state human being. Otherwise, the prodoes not establish that this liquor is hibitory liquor statute is not appliintoxicating liquor, nor that it was cable. In this case, after filing the an intoxicating compound as to that amended informamatter. The most that is estab- tion, the

state samiciency-wale lished is that five bottles of the should have proved it intoxicating

liquor. stuff were sold, three to Dave Le that the liquor was Flore and two to Bill Purcell, and

intoxicating or should have disthat it made Le Flore sick and missed the prosecution. Having dizzy and made Purcell sick and

failed to prove that the liquor was dizzy. Neither of them says that it intoxicating, or that it contained made him drunk.

more than 1 of 1 per cent alcohol, There are a great many com

the prosecution failed. The judg

ment should have been an acquittal pounds used for treating ills of the

instead of a conviction. human race which will render a person sick or dizzy if too much of

The judgment is reversed, and

the cause remanded, with directions the same is taken, but will not intoxicate him in the sense that he

to grant a new trial. will become inebriated. The intoxi. Doyle, P. J., and Matson, J., concation contemplated by the statute cur.

ANNOTATION.

Test of intoxicating character of liquor.

I. Liquors in general:

a. Presence of alcohol, 1137.
b. Specific percentage of alcohol,

1140.
c. Actual capacity to intoxicate:

1. Generally, 1141.
2. Under New York statute,

1153.
II. Medicinal compounds:
a. Use as beverage:

1. Generally, 1154.
2. Under Kansas statute, 1158.

II. 2-continued.

3. Under Missouri statute,

1161. 4. Under New York statute,

1161. 6. Under North Dakota stat

ute, 1161.
6. Under Oklahoma statute,

1162.
b. Purpose of sale, 1163.
III. Preserved fruits, 1165.

I. Liquors in general.

a. Presence of alcohol. Where a statute regulating the sale and manufacture of intoxicating liquors provides that the words, "intoxicating liquors," as used therein, shall be construed to mean "alcohol,” or provides that they shall be construed to mean "fermented, vinous, or spirituous liquors, or any composition of which fermented, vinous, or spirituous

liquors is a part," it being a matter of general knowledge that alcohol is a constituent element of fermented, vinous, or spirituous liquors, a liquor is held to be intoxicating thereunder which contains alcohol in any quantity whatsoever, and is sold or used as a beverage, regardless of the amount of alcohol actually present in it, or of its capacity in fact to produce intoxication. State v. Certain Intoxicating Liquors (1888) 76 Iowa, 243, 2 L.R.A.

408, 41 N. W. 6; State v. Colvin (1905) 188, 131 S. W. 883; State v. Hanson 127 Iowa, 632, 103 N. W. 968; State v. (-911) 234 Mo. 583, 137 S. W, 968; Martin (1910) 230 Mo. 1, 139 Am. St. State v. Gamma (1910) 149 Mo. App. Rep. 628, 129 S. W. 931; State v. Burk 694, 129 S. W. 734; State v. Wills (1911) 234 Mo. 574, 137 S. W. 969, af- (1911) 154 Mo. App. 605, 136 S. W. 25. firming (1910) 151 Mo. App. 188, 131 Thus, in State v. Martin (Mo.) supra, S. W. 883; State v. Hanson (1911) 234 the court said: “At the date of the Mo. 583, 137 S. W. 968; State v. Gamma passage of the Local Option Act of (1910) 149 Mo. App. 694, 129 S. W. 1887 we had in this state, as we now 734; State v. Wills (1911) 154 Mo. have, a general Dramshop Law, which App. 605, 136 S. W. 25.

made full provision for the obtaining An Iowa statute provides that the of a license as a dramshop keeper to words, "intoxicating liquors," as used dispense intoxicating drinks. No pertherein, "shall be construed to mean son was permitted, directly or indirectalcohol, wine, beer, spirituous, vinous, ly, to sell intoxicating liquors in any and malt liquors, and all intoxicating quantity less than 3 gallons, either at liquors whatever." The court held retail or in the original package, withthereunder, in State v. Certain Intoxi- out taking out a license as a dramcating Liquors (1888) 76 Iowa, 243, shop keeper. The lawmakers of this 2 L.R.A. 408, 41 N. W. 6, that alcohol state, to the end that there should be was, therefore, an intoxicating liquor, no misunderstanding as to what was regardless of the fact that the quan- meant by 'intoxicating liquor,' defined tity drank at any time would not in- the term, 'intoxicating liquor,' in this toxicate, and that it was immaterial, way: "The term, "intoxicating liin a statutory sense, what effect alco- quor,” as used in this chapter, shall hol might have on the human system; be construed to mean fermented, it was an intoxicating liquor. That vinous, and spirituous liquors, or any was to say, the statute provided that composition of which fermented, vialcohol was an intoxicant, whenever nous, or spirituous liquors is a part, and however used as a beverage; and and all the foregoing provisions shall no matter how it might be diluted or be liberally construed as remedial in disguised, it so remained, simply be- their character.'

The general cause the statute so declared. And Dramshop Law regulating the sale of in State v. Colvin (1905) 127 Iowa, 632, intoxicating liquors recognized that 103 N. W. 968, the court said: “The any composition of which alcohol statute (Code, § 2382) specifically de- formed a part was an intoxicating liclares that alcohol is an intoxicating quor, and this was true regardless of liquor, and proof that liquor used as the percentage of alcohol forming the a beverage contains alcohol is suffi- part of the composition; hence, it folcient to establish its character as in- lows that, under the general Dramtoxicating liquor, however much the

shop Law in existence at the time of alcohol may be diluted, or however the adoption of the Local Option Act weak its intoxicating effect as a bever- involved in this proceeding, any comage may be. The statute so declares, position of which any amount of alcoand it is conclusive."

hol whatever formed a part was treatThe term, "intoxicating liquor," as ed as an intoxicating liquor, and its used in the Missouri Prohibition Stat- sale prohibited, except upon the obutes,-the Dramshop Law (Rev. Stat. taining of a license as a dramshop 1855, chap. 57, § 31; Rev. Stat. 1909, keeper for the purpose of making such § 7222), and the Local Option Act sale. Therefore, prior to the adop(Rev. Stat. 1909, § 7243),-embraces tion of the Local Option Law, any perany beverage containing alcohol in

son selling as a beverage any comany quantity whatever. State v. Mar- position of which any alcohol whattin (1910) 230 Mo. 1, 139 Am. St. Rep. ever formed a part was guilty of a 628, 129 S. W. 931; State v. Burk misdemeanor, unless it should be made (1911) 234 Mo. 574, 137 S. W. 969, af- to appear that he was duly licensed as firming judgment (1910) 151 Mo. App. a dramshop keeper authorized to sell

.

such beverage... The definition subject of the sale of intoxicating liof 'intoxicating liquor,' as contained in quors, to hold that there must at least the statute at this date, was first adopt- be of 1 per cent of alcohol in the ed by the general assembly in the composition sold as a beverage, in oryear 1855, and has remained in full der for it to be termed 'intoxicating force as the law of this state from that liquor' under the provisions of the date to the present time. In our opin- Local Option Act. To so hold would ion, the general assembly in the adop- give rise to hundreds of prosecutions tion of the Local Option Act of 1887, by the state for the violation of the in the employment of the term, 'intoxi- Liquor Laws, and furnish a field for cating liquor,' had in contemplation the display of the knowledge of the intoxicating liquor as defined by the expert, both as to the amount of alcogeneral Dramshop Law, and such act hol contained in the composition sold was leveled at the evils of intemper- as a beverage, and as to whether or not ance which might result from the sale the beverage was in fact intoxicating." of intoxicating liquor in the manner So in State v. Hanson (1911) 234 Mo. provided by the general Dramshop 583, 137 S. W. 968, the court said: Law.

The law of this state "The fact that some people would behaving definitely determined as to come intoxicated by the use of a very what the term, 'intoxicating liquor,' small quantity of alcoholic stimulants, should be construed to mean, it fol- while others could imbibe an indefinite lows that it is not permissible, and quantity of the same beverage and rethere is no necessity for so doing, main sober, made it necessary to have to examine into the actual intoxicat- some fixed rule for determining what ing properties of the composition sold were intoxicating liquors. Accordas a beverage, which contains any ingly, as early as 1855, the following alcohol whatever.

Entertain- section was inserted in the Dramshop ing the views upon this proposition to Law of our state: 'Sec. 31. The term which we have given expression, our intoxicating liquor, as used in this act, conclusion is that the term, 'intoxicat- shall be construed to mean fermented, ing liquor,' as employed in the title vinous, and spirituous liquors, or any of the act, necessarily embraced any composition of which fermented, vibeverage containing alcohol in any nous, or spirituous liquor is a part.' quantity whatever. Doubtless, the This section has been carried through central idea in the minds of the law- all subsequent revisions of our statmakers when defining intoxicating li- utes, and is now § 7222, Rev. Stat. quor, and in avoiding the dealing with 1909. It will not be denied that all any percentages of alcohol in composi- fermented, vinous, and spirituous litions in order to make them an intoxi- quors contain alcohol. Consequently, cating liquor, and simply making com- the words, 'intoxicating liquor,' as positions sold as a beverage, contain- used in our dramshop statutes for ing any alcohol whatever, intoxicating more than half a century, have meant liquors, was to prevent the facilities any beverage containing any percentfor violating the laws of this state age of alcohol, however small. The regulating the sale of intoxicating li

Local Option Law deals with the same quors. Manifestly, the legislature subject as the Dramshop Law, to wit, deemed it best to definitely state what

the sale of beverages containing alcoshould be termed and treated as intoxi

holic stimulants, and was intended, cating liquors, rather than to leave

wherever adopted, to suspend and supthat subject to be determined by ex

plant the Dramshop Law. The words, perts in the numerous prosecutions

'intoxicating liquor,' as they had stood by the state, which would have neces

in our statutes nearly half a century, sarily arisen, had the general assem

having meant, and having been conbly failed to have definitely settled as

strued to embrace, all beverages conto what should constitute intoxicating taining alcohol in any quantity, it is liquors. We are unwilling, in view of perfectly clear to our minds that those the legislation in this state upon the words, as used in the title to the Local Option Law, were likewise intended percentage of alcohol shall be conto include every beverage composed in clusive. whole or in part of alcohol.”

A California statute (Wyllie Local The quantity has nothing to do with Option Law, Stat. 1911, p. 559, $ 21) the matter, whether more or less; the provides that "the term, 'alcoholic sale of a beverage containing any alco- liquors' as used in this act, shall inhol is prohibited by this law. State v. clude spirituous, vinous, and malt liGamma (1910) 149 Mo. App. 694, 129 quors, and any other liquor or mixture S. W. 734.

of liquors which contains 1 per cent In a prosecution for violation of the by volume, or more, of alcohol, and law, it is not necessary for the state to which is not so mixed with other drugs show that the liquor or composition as to prevent its use as a beverage." in question was sold as a beverage. Thereunder, in People v. Strickler Nor is it any defense to show that it (Cal.) supra, it was held that by specwas sold in good faith for medicinal ifying the quantity of alcohol which, purposes. The only issues that can be when used in liquors, would bring raised are the questions whether or them within the condemnation of the not the liquor sold contained alcohol statute, the legislature intended to and and was of such character that it did establish a test applicable to all could be used as a beverage, or wheth- liquors, the sale of which was deer it contained alcohol and was used signed by the statute to be prohibited as a beverage. State v. Wills (1911) in any territory to which the law 154 Mo. App. 605, 136 S. W. 25.

might appropriately be made appli

cable. b. Specific percentage of alcohol.

A Massachusetts statute (Pub. In some jurisdictions the statutes

Stat. 1882, chap. 100, § 27) enacted as regulating the manufacture and sale

follows: "Ale, porter, strong beer, of intoxicants provide that the term

lager beer, cider, all wines, and any “liquors” shall include any beverage,

beverage containing more than 3 liquor, or mixture of liquors, which

per cent of alcohol, by volume, at 60 contains a certain specified percent

degrees Fahrenheit, as well as disage of alcohol. Under these statutes,

tilled spirits, shall be deemed to be inof course, the presence of alcohol, in

toxicating liquor within the meaning the stated percentage or more, brings

of this chapter." Thereunder, in Com. the liquor within the prohibition of

v. Magee (Mass.) su ra, it was held

that to convict of keeping for sale an the statute, irrespective of its actual intoxicating qualities when used as a

intoxicating liquor, the government beverage.

must prove beyond a reasonable doubt California. People v. Strickler

that, at the time of the keeping for

sale, the liquor contained more than 3 (1914) 25 Cal. App. 60, 142 Pac. 1121. Massachusetts. Com. v. Magee

per cent of alcohol, by volume, at

60 degrees Fahrenheit. And under a (1886) 141 Mass. 111, 4 N. E. 819;

later statute (Stat. 1888, chap. 219), Com. v. Brelsford (1894) 161 Mass.

enacting that "any beverage contain61, 36 N. E. 677.

ing more than 1 per cent of alcohol, by Oklahoma. — Ex parte Hunnicutt

volume, at 60 degrees Fahrenheit, (1912) 7 Okla. Crim. Rep. 213, 123

shall be deemed to be intoxPac. 179. And see the reported case

icating liquor within the meaning of" (ESTES v. STATE, ante, 1135).

the previous statute, it was held in Rhode Island.—State V. Guinness Com. v. Brelsford (Mass.) supra, that (1889) 16 R. I. 401, 16 Atl. 910.

under a complaint for the illegal sale Vermont.--State v. Krinski (1905) and keeping of intoxicating liquors, 78 Vt. 162, 62 Atl. 37.

the issue was not whether the liquor See also the following subdivision illegally kept for sale was actually infor statutes which, while making ac- toxicating, but whether it contained tual intoxicating property the test, more than 1 per cent of alcohol. provide that the presence of a specific The Oklahoma prohibition statute

(Comp. Laws 1909, § 4180) provides sonably construed, meant liquors in part as follows: “It shall be un- which would intoxicate, and which lawful for any person, individual or were commonly used as beverages for corporate, to manufacture, sell, bar- such purposes, and also any and all ter, give away, or otherwise furnish, mixtures thereof, compounds, or subexcept as in this act provided, any stitutes for such liquors that posspirituous, vinous, fermented or malt sessed intoxicating qualities. So, in liquors, or any imitation thereof or

the reported case (ESTES V. STATE, substitute therefor; or to manufac- ante, 1135), it is held that the intoxiture, sell, barter, give away, or other- cation contemplated by the statute is wise furnish any liquors or compounds an alcoholic one, and that a liquor, in of any kind or description whatsoever, order to come under the ban of the whether medicated or not, which law, must contain more than 1 of 1 per contain as much

as } of 1 per cent alcohol, or a sufficient quantity centum of alcohol, measured by vol- of it, in a liquor or compound capable ume, and which is capable of being of being used as a beverage, to intoxused as a beverage, except prepara- icate a human being. tions compounded by any licensed A Rhode Island statute (Pub. Laws, pharmacist, the sale of which would

chap. 596, § 1, of May 27, 1886, as not subject him to the payment of the amended by Pub. Laws, chap. 634, $ 1, special tax required by the laws of of May 4, 1887) enacts that “wherever the United States," etc. Thereunder, the words 'intoxicating liquors' shall in the case of Ex parte Hunnicutt be used in this act they shall be (1912) 7 Okla. Crim. Rep. 213, 123 Pac. deemed to include ale, wine, rum, or 179, the court held that the words, other strong or malt liquors, or any "which contain as much as 1 of 1 per mixed liquors a part of which is ale, centum of alcohol, measured by vol- wine, rum or other strong or mixed ume," were a limitation on, and gave liquors, or any liquor or mixture of a fixed and definite legal meaning to, liquors which shall contain more than the words "imitation" and "substi- 2 per cent by weight of alcohol." tute," and that it was the presence of These words do not purport to change

of 1 per centum of alcohol which the nature of things, and make liquors made such substitutes and imitations intoxicating which are not intoxicatunlawful. The court said: "From ing, but simply enact that the words, reading the entire statute, it clearly “intoxicating liquors," where used in appears to be the purpose of the leg. the act, shall be deemed to incude "any islature to prohibit the manufacture, liquor or mixture of liquors which sale, barter, giving away, or otherwise shall contain more than 2 per cent, by furnishing of any intoxicating liquors, weight, of alcohol,” whether intoxicator any substitute or imitation thereof ing or not. State v. Guinness (1889) which contains the elements of in- 16 R. I. 401, 16 Atl. 910. toxication to such an extent as would A Vermont statute (Act of 1902, make the use of such substitutes harm- No. 90, 8 21; Pub. Stat. 1906, 8 5101) ful or dangerous. The statute does provides that the words, “ 'intoxicatnot leave this to conjecture, but goes ing liquor,' or 'liquor,' as used in this further and establishes of 1 per chapter, shall include spirituous or incentum of alcohol, measured by vol- toxicating liquor, malt liquors, lager ume, as the amount of the intoxicating beer, fermented wine, fermented cider, element which would make the use of distilled spirits, and any beverage such substitutes or imitations unlaw- which contains more than 1 per cent ful."

of alcohol, by volume, at 60 degrees In Markinson v. State (1909) 2 Okla. Fahrenheit.” State v. Krinski (1905) Crim. Rep. 323, 101 Pac. 353, it was 78 Vt. 162, 62 Atl. 37. held that in the prohibition ordinance

c. Actual capacity to intoxicate. of the Oklahoma Constitution, prior to the passage of the Prohibition Law,

1. Generally. the words, "intoxicating liquors," rea

a majority of jurisdictions,