(13 Okla. Crim. Rep. 604, 166 Pac. 77.) state, and commonly sold as a proprietary medicine. Dr. W. G. Short, a public drug and food inspector, testified that the concoction was a proprietary medicine, and was commonly sold in drug stores throughout the state of Oklahoma; that it was not intoxicating. The proof on behalf of the state does not establish that this liquor is intoxicating liquor, nor that it was an intoxicating compound as to that matter. The most that is established is that five bottles of the stuff were sold, three to Dave Le Flore and two to Bill Purcell, and that it made Le Flore sick and dizzy and made Purcell sick and dizzy. Neither of them says that it made him drunk. There are a great many compounds used for treating ills of the human race which will render a person sick or dizzy if too much of the same is taken, but will not intoxicate him in the sense that he will become inebriated. The intoxication contemplated by the statute 1137 is an alcoholic one, and a liquor, in order to come under the ban of the law; must contain more than of 1 liquorIntoxicating per cent alcohol, or definition. a sufficient quantity of it, in a liquor or compound capable of being used as a beverage, to intoxicate a human being. Otherwise, the prohibitory liquor statute is not. applicable. In this case, after filing the amended information, the state should have proved of intoxicating Evidencesufficiency-sale that the liquor was liquor. intoxicating or should have dismissed the prosecution. Having failed to prove that the liquor was intoxicating, or that it contained more than of 1 per cent alcohol, the prosecution failed. The judgment should have been an acquittal instead of a conviction. The judgment is reversed, and the cause remanded, with directions to grant a new trial. Doyle, P. J., and Matson, J., con cur. ANNOTATION. Test of intoxicating character of liquor. I. Liquors in general: a. Presence of alcohol, 1137. b. Specific percentage of alcohol, e. Actual capacity to intoxicate: 1. Generally, 1141. 2. Under New York statute, II. Medicinal compounds: a. Use as beverage: 1. Generally, 1154. 2. Under Kansas statute, 1158. 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 4 A.L.R.-72. 4. Under New York statute, 1161. 5. Under North Dakota statute, 1161. 6. Under Oklahoma statute, 1162. b. Purpose of sale, 1163. III. Preserved fruits, 1165. 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) 127 Iowa, 632, 103 N. W. 968; State v. Martin (1910) 230 Mo. 1, 139 Am. St. Rep. 628, 129 S. W. 931; State v. Burk (1911) 234 Mo. 574, 137 S. W. 969, affirming (1910) 151 Mo. App. 188, 131 S. W. 883; State v. Hanson (1911) 234 Mo. 583, 137 S. W. 968; State v. Gamma (1910) 149 Mo. App. 694, 129 S. W. 734; State v. Wills (1911) 154 Mo. App. 605, 136 S. W. 25. An Iowa statute provides that the words, "intoxicating liquors," as used therein, "shall be construed to mean alcohol, wine, beer, spirituous, vinous, and malt liquors, and all intoxicating liquors whatever." The court held thereunder, in State v. Certain Intoxicating Liquors (1888) 76 Iowa, 243, 2 L.R.A. 408, 41 N. W. 6, that alcohol was, therefore, an intoxicating liquor, regardless of the fact that the quantity drank at any time would not intoxicate, and that it was immaterial, in a statutory sense, what effect alcohol might have on the human system; it was an intoxicating liquor. That was to say, the statute provided that alcohol was an intoxicant, whenever and however used as a beverage; and no matter how it might be diluted or disguised, it so remained, simply because the statute so declared. And in State v. Colvin (1905) 127 Iowa, 632, 103 N. W. 968, the court said: "The statute (Code, § 2382) specifically declares that alcohol is an intoxicating liquor, and proof that liquor used as a beverage contains alcohol is sufficient to establish its character as intoxicating liquor, however much the alcohol may be diluted, or however weak its intoxicating effect as a beverage may be. The statute so declares, and it is conclusive." The term, "intoxicating liquor," as used in the Missouri Prohibition Statutes, the Dramshop Law (Rev. Stat. 1855, chap. 57, § 31; Rev. Stat. 1909, § 7222), and the Local Option Act (Rev. Stat. 1909, § 7243),-embraces any beverage containing alcohol in any quantity whatever. State v. Martin (1910) 230 Mo. 1, 139 Am. St. Rep. 628, 129 S. W. 931; State v. Burk (1911) 234 Mo. 574, 137 S. W. 969, affirming judgment (1910) 151 Mo. App. 188, 131 S. W. 883; State v. Hanson The definition such beverage. of 'intoxicating liquor,' as contained in the statute at this date, was first adopted by the general assembly in the year 1855, and has remained in full force as the law of this state from that date to the present time. In our opinion, the general assembly in the adoption of the Local Option Act of 1887, in the employment of the term, 'intoxicating liquor,' had in contemplation intoxicating liquor as defined by the general Dramshop Law, and such act was leveled at the evils of intemperance which might result from the sale of intoxicating liquor in the manner provided by the general Dramshop Law.. The law of this state having definitely determined as to what the term, 'intoxicating liquor,' should be construed to mean, it follows that it is not permissible, and there is no necessity for so doing, to examine into the actual intoxicating properties of the composition sold as a beverage, which contains any alcohol whatever. Entertain ing the views upon this proposition to which we have given expression, our conclusion is that the term, 'intoxicating liquor,' as employed in the title of the act, necessarily embraced any beverage containing alcohol in any quantity whatever. Doubtless, the central idea in the minds of the lawmakers when defining intoxicating liquor, and in avoiding the dealing with any percentages of alcohol in compositions in order to make them an intoxicating liquor, and simply making compositions sold as a beverage, containing any alcohol whatever, intoxicating liquors, was to prevent the facilities for violating the laws of this state regulating the sale of intoxicating liquors. Manifestly, the legislature deemed it best to definitely state what should be termed and treated as intoxicating liquors, rather than to leave. that subject to be determined by experts in the numerous prosecutions by the state, which would have necessarily arisen, had the general assembly failed to have definitely settled as to what should constitute intoxicating liquors. We are unwilling, in view of the legislation in this state upon the subject of the sale of intoxicating liquors, to hold that there must at least be of 1 per cent of alcohol in the composition sold as a beverage, in order for it to be termed 'intoxicating liquor' under the provisions of the Local Option Act. To so hold would give rise to hundreds of prosecutions by the state for the violation of the Liquor Laws, and furnish a field for the display of the knowledge of the expert, both as to the amount of alcohol contained in the composition sold as a beverage, and as to whether or not the beverage was in fact intoxicating." So in State v. Hanson (1911) 234 Mo. 583, 137 S. W. 968, the court said: "The fact that some people would become intoxicated by the use of a very small quantity of alcoholic stimulants, while others could imbibe an indefinite quantity of the same beverage and remain sober, made it necessary to have some fixed rule for determining what were intoxicating liquors. Accordingly, as early as 1855, the following section was inserted in the Dramshop Law of our state: 'Sec. 31. The term intoxicating liquor, as used in this act, shall be construed to mean fermented, vinous, and spirituous liquors, or any composition of which fermented, vinous, or spirituous liquor is a part.' This section has been carried through all subsequent revisions of our statutes, and is now § 7222, Rev. Stat. 1909. It will not be denied that all fermented, vinous, and spirituous liquors contain alcohol. Consequently, the words, 'intoxicating liquor,' as used in our dramshop statutes for more than half a century, have meant any beverage containing any percentage of alcohol, however small. The Local Option Law deals with the same subject as the Dramshop Law, to wit, the sale of beverages containing alcoholic stimulants, and was intended, wherever adopted, to suspend and supplant the Dramshop Law. The words, 'intoxicating liquor,' as they had stood in our statutes nearly half a century, having meant, and having been construed to embrace, all beverages containing alcohol in any quantity, it is perfectly clear to our minds that those words, as used in the title to the Local Option Law, were likewise intended to include every beverage composed in whole or in part of alcohol." The quantity has nothing to do with the matter, whether more or less; the sale of a beverage containing any alcohol is prohibited by this law. State v. Gamma (1910) 149 Mo. App. 694, 129 S. W. 734. In a prosecution for violation of the law, it is not necessary for the state to show that the liquor or composition in question was sold as a beverage. Nor is it any defense to show that it was sold in good faith for medicinal purposes. The only issues that can be raised are the questions whether or not the liquor sold contained alcohol and was of such character that it could be used as a beverage, or whether it contained alcohol and was used as a beverage. State v. Wills (1911) 154 Mo. App. 605, 136 S. W. 25. percentage of alcohol shall be conclusive. A California statute (Wyllie Local Option Law, Stat. 1911, p. 559, § 21) provides that "the term, 'alcoholic liquors' as used in this act, shall include spirituous, vinous, and malt liquors, and any other liquor or mixture of liquors which contains 1 per cent by volume, or more, of alcohol, and which is not so mixed with other drugs as to prevent its use as a beverage." Thereunder, in People v. Strickler (Cal.) supra, it was held that by specifying the quantity of alcohol which, when used in liquors, would bring them within the condemnation of the statute, the legislature intended to and did establish a test applicable to all liquors, the sale of which was designed by the statute to be prohibited in any territory to which the law might appropriately be made applicable. See also the following subdivision for statutes which, while making actual intoxicating property the test, provide that the presence of a specific A Massachusetts statute (Pub. Stat. 1882, chap. 100, § 27) enacted as follows: "Ale, porter, strong beer, lager beer, cider, all wines, and any beverage containing more than 3 per cent of alcohol, by volume, at 60 degrees Fahrenheit, as well as distilled spirits, shall be deemed to be intoxicating liquor within the meaning of this chapter." Thereunder, in Com. v. Magee (Mass.) supra, it was held that to convict of keeping for sale an intoxicating liquor, the government must prove beyond a reasonable doubt that, at the time of the keeping for sale, the liquor contained more than 3 per cent of alcohol, by volume, at 60 degrees Fahrenheit. And under a later statute (Stat. 1888, chap. 219), enacting that "any beverage containing more than 1 per cent of alcohol, by volume, at 60 degrees Fahrenheit, shall be deemed to be intoxicating liquor within the meaning of" the previous statute, it was held in Com. v. Brelsford (Mass.) supra, that under a complaint for the illegal sale and keeping of intoxicating liquors, the issue was not whether the liquor illegally kept for sale was actually intoxicating, but whether it contained more than 1 per cent of alcohol. The Oklahoma prohibition statute (Comp. Laws 1909, § 4180) provides in part as follows: "It shall be unlawful for any person, individual or corporate, to manufacture, sell, barter, give away, or otherwise furnish, except as in this act provided, any spirituous, vinous, fermented or malt liquors, or any imitation thereof or substitute therefor; or to manufacture, sell, barter, give away, or otherwise furnish any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as of 1 per centum of alcohol, measured by volume, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States," etc. Thereunder, in the case of Ex parte Hunnicutt (1912) 7 Okla. Crim. Rep. 213, 123 Pac. 179, the court held that the words, "which contain as much as of 1 per centum of alcohol, measured by volume," were a limitation on, and gave a fixed and definite legal meaning to, the words "imitation" and "substitute," and that it was the presence of of 1 per centum of alcohol which made such substitutes and imitations unlawful. The court said: "From reading the entire statute, it clearly appears to be the purpose of the legislature to prohibit the manufacture, sale, barter, giving away, or otherwise furnishing of any intoxicating liquors, or any substitute or imitation thereof which contains the elements of intoxication to such an extent as would make the use of such substitutes harmful or dangerous. The statute does not leave this to conjecture, but goes further and establishes of 1 per centum of alcohol, measured by volume, as the amount of the intoxicating element which would make the use of such substitutes or imitations unlawful." In Markinson v. State (1909) 2 Okla. Crim. Rep. 323, 101 Pac. 353, it was held that in the prohibition ordinance of the Oklahoma Constitution, prior to the passage of the Prohibition Law, the words, "intoxicating liquors," rea sonably construed, meant meant liquors which would intoxicate, and which were commonly used as beverages for such purposes, and also any and all mixtures thereof, compounds, or substitutes for such liquors that possessed intoxicating qualities. So, in the reported case (ESTES v. STATE, ante, 1135), it is held that the intoxication contemplated by the statute is an alcoholic one, and that a liquor, in order to come under the ban of the law, must contain more than of 1 per cent alcohol, or a sufficient quantity of it, in a liquor or compound capable of being used as a beverage, to intoxicate a human being. A Rhode Island statute (Pub. Laws, chap. 596, § 1, of May 27, 1886, as amended by Pub. Laws, chap. 634, § 1, of May 4, 1887) enacts that "wherever the words 'intoxicating liquors' shall be used in this act they shall be deemed to include ale, wine, rum, or other strong or malt liquors, or any mixed liquors a part of which is ale, wine, rum or other strong or mixed liquors, or any liquor or mixture of liquors which shall contain more than 2 per cent by weight of alcohol." These words do not purport to change the nature of things, and make liquors intoxicating which are not intoxicating, but simply enact that the words, "intoxicating liquors," where used in the act, shall be deemed to incude "any liquor or mixture of liquors which shall contain more than 2 per cent, by weight, of alcohol," whether intoxicating or not. State v. Guinness (1889) 16 R. I. 401, 16 Atl. 910. 66 A Vermont statute (Act of 1902, No. 90, § 21; Pub. Stat. 1906, § 5101) provides that the words, 'intoxicating liquor,' or 'liquor,' as used in this chapter, shall include spirituous or intoxicating liquor, malt liquors, lager beer, fermented wine, fermented cider, distilled spirits, and any beverage which contains more than 1 per cent of alcohol, by volume, at 60 degrees Fahrenheit." State v. Krinski (1905) 78 Vt. 162, 62 Atl. 37. c. Actual capacity to intoxicate. 1. Generally. In a majority of jurisdictions. |