any alcoholic, spirituous, vinous, or within either the letter or the spirit of malt liquors, intoxicating bitters or the act. But the phrase, "alcoholic or beverages, or other liquors or bever- spirituous liquors,” in this law, inages by whatsoever name called, which cludes only those liquors which conif drunk to excess will produce intox- tain a sufficient quantity of alcohol ication." Thereunder, in Marks v. (the intoxicating element of all liqState (1909) 159 Ala. 71, 133 Am. St. uors) to produce intoxication when Rep. 20, 48 So. 864, it was held that drunk to excess, and necessarily imthe clause, “which, if drunk to excess, ports intoxicating liquors. And liqwill produce intoxication," qualified or uors are neither alcoholic nor spirreferred only to the clause, “or other ituous unless they are also intoxliquors or beverages," which imme- icating Roberts v. State (1908) diately preceded it, and was intended 4 Ga. App. 207, 60 S. E. 1082. "It to include any and all other classes or seems to us absurd and utterly unkinds of liquors or beverages not em- reasonable to say that a trace of braced in the first five classes named. alcohol in a liquid, not enough to The court held that the statute did intoxicate, or a liquid not in proper not embrace every liquor or beverage form to be used as a beverage, fits the which contained a trace of alcohol or description given in this statute of maltose, or even that contained one ‘spirituous and alcoholic liquors.' or both in appreciable quantities, if

This construction of the law incapable of being used as an intox- would call a liquid that contained an icating beverage. On the other hand, ounce of whisky in a barrel of water, the court held, it embraced all articles and a teaspoonful of sugar, a whisky which contained alcohol or malt in toddy, or an ounce of brandy in a barsuch proportions or form or state, rel of milk, a milk punch. This conwhich were or might be used as an struction would prohibit the sale of intoxicating beverage, no matter what what are commonly known as soft it was called, or for what other pur- drinks, that contain only an apprecipose it was intended or was used, or able amount of alcohol, not enough to for which it might be used.

produce intoxication, however much is The words, "intoxicating liquors," or drank, as a beverage, and would ban"alcoholic and spirituous liquors," as

ish from the drug store all drugs and used in the Georgia Prohibition Stat

medicines and all culinary and toilet ute, include liquors intended for use

articles which contain any alcohol, as a beverage, or capable of being so

even when it is well known that such used, containing alcohol, obtained

things are not only not in proper form either by fermentation or distillation,

to be used as beverages, but, if so or both, in such proportion as would

used, would cause death." Roberts v.

State (Ga.) supra. produce intoxication when drunk to excess. Chapman v. State (1896) 100

A Mississippi statute (Code of 1906,

§ 1746) prohibits the sale or keeping Ga. 311, 27 S. E. 789; Colwell v. State

for sale without a license of "any vi. (1900) 112 Ga. 75, 37 S. E. 129; Mason

nous, alcoholic, malt, intoxicating, or v. State (1907) 1 Ga. App. 534, 58 S.

spirituous liquors, or intoxicating bitE. 139; Roberts v. State (1908) 4 Ga.

ters, or other drinks, which if drunk App. 207, 60 S. E. 1082; Stoner v. State (1909) 5 Ga. App. 716, 63 S. E.

to excess will produce intoxication."

Thereunder, in Fuller v. Jackson 602. So, the Georgia Prohibition Law

(1910) 97 Miss. 237, 30 L.R.A.(N.S.) (Acts 1907, p. 81), which has for its

1078, 52 So. 873, the court held that purpose the suppression of the evils

the language, "which, if drunk to exof intemperance, cannot be violated by

cess, will produce intoxication," qualselling or keeping on hand at a place ified the terms "vinous, alcoholic, malt, of business liquids which cannot be intoxicating, or spirituous liquors, or used as a beverage; for that which intoxicating bitters, or other drinks." cannot be drunk cannot produce Hence, the court held, the sale of aldrunkenness, and liquids which can- coholic liquors was prohibited, providnot be used as beverages do not fall ed they contained sufficient alcohol to intoxicate when drunk to excess. In an offense to sell strong or spirituous Bacot v. State (1908) 94 Miss. 225, 21 liquors in quantities less than 5 galL.R.A.(N.S.) 524, 136 Am. St. Rep. 574, lons without a license therefor, it was 48 So. 228, the court said: "Aside held in Board of Excise v. Taylor from the well-known exception in the (1860) 21 N. Y. 173, that the liquors, case of pharmaceutical preparations, the traffic in which was to be thus regthe law punishes the fact of selling in- ulated, were such as were known to toxicants, regardless of the intent of be capable, when drank, of producing, the seller. He must see to it that the and which generally resulted in, parbeverages he dispenses are nonalco- tial or total intoxication. The court holic to the extent that intoxication stated that but one safe and sensible in any degree will not be produced line of distinction could be drawn beby even excessive consumption of the tween the different kinds of liquor beverage.”

containing alcohol, in order to deter

mine on which of them the statute was 2. Under New York statute.

intended to operate; and that was beThe New York statute (Liquor Tax

tween those which were capable of Law, $ 2; 33 McKinney, Consol. Laws,

causing intoxication, and those conp. 11) provides as follows: "The term

taining so small a percentage of al‘liquors,' as used in this chapter, in

cohol that the human stomach could cludes and means all distilled or rec

not contain sufficient of the liquor to tified spirits, wine, fermented and malt

produce that effect. liquors."

In People v. Schewe (1883) 29 Hun In People v. Cox (1905) 106 App.

(N. Y.) 122, the court said (after quotDiv. 299, 94 N. Y. Supp. 526, affirming

ing the foregoing rule): “Of course (1904) 45 Misc. 311, 92 N. Y. Supp.

we are not unmindful of the fact that 125, the court declared that it seemed

different liquors and different quanto have been the deliberate intention

tities will produce different effects upand purpose of the legislature in pass

on different persons, and that the efing the Liquor Tax Law, to omit there

fect on persons may depend upon their from the words, "strong," "spir

habits, their health, their age and conituous," and "intoxicating," and in

stitutions." This rule was also quotclude within the prohibitive parts

ed and followed in Prussia v. Guenththereof the traffic in all alcoholic bev.

er (1884) 16 Abb. N. C. (N. Y.) 230. erages within the definition of "li

The presence of alcohol in so slight quor," as construed in that statute,

a quantity as not to unduly excite the and to relieve the court from determin

human system will not constitute an ing as a fact whether the liquor sold

intoxicating liquor. People v. Zeiger or given away was intoxicating.

(1865) 6 Park. Crim. Rep. (N. Y.) 355. That a liquor is intoxicating is,

The various kinds of domestic beers, therefore, no longer the test under the

such as spruce beer, spring beer, ginpresent statute. Clement v. Dwight

ger beer, molasses beer, etc., are, there(1910) 137 App. Div. 389, 121 N. Y.

fore, never considered as strong liSupp. 788; People v. Palluch (1918) 182 App. Div. 603, 169 N. Y. Supp. 917,

quors or intoxicating liquors, though

they do contain a certain percentage affirmed without opinion in (1918) 224

of alcohol, either because it was supN. Y. 648, 121 N. E. 884. Still, the

posed that the human stomach had not question as to whether a liquor comes

capacity to contain a sufficient quanwithin the statute depends on, and so

tity of those kinds of beer, if they were one of the tests applied to any mixture properly made, unduly or injuriously for the purpose of ascertaining wheth

to excite the person who used them as er it is liquor within the meaning of a beverage, or for the reason that the Liquor Tax Law is, the quantity of those who were in the habit of using alcohol it contains. Ibid.

them never got intoxicated by such Under a former statute (Act of use. Nevin v. Ladue (1846) 3 Denio 1857, chap. 628), regulating the sale (N. Y.) 437. See also Board of Excise of intoxicating liquors, and making it v. Taylor (N. Y.) supra.

Y.) supra.

.

all per

But as to lager beer, the circum- effect found to follow the use of lager stance of intoxication following its use beer is entire or partial intoxication. in very rare exceptional cases would If it frequently or ordinarily is attendbe insufficient to characterize it as an ed with that result, then all the coninebriating drink; for if the question sequences are produced by it which whether the sale without license vi- render it a proper subject for legislaolated the statute was made to depend tive regulation. People v. Zeiger (N. on that, then it would follow that what should be legally declared a criminal So, with respect to beer, it has been offense in one part of the state would held that it must be strong liquor, that be an innocent act in others, depend is, strong enough with the inebriating ing entirely on the local habitation of principle or element, whether obtained the person or persons capable of being by distillation or fermentation, to prothus affected. Under such a construc- duce intoxication. Board of Excise v. tion of the law, persons charged with Taylor (1860) 21 N. Y. 173; People v. its violation could only be convicted Hart (1862) 24 How. Pr. (N. Y.) 289. when proof was made that actual intoxication of some one person had been

II. Medicinal compounds. produced by imbibing the liquor in

a. Use as beverage. question; and if no such person could be found when the prosecution was

1. Generally. carried on, an acquittal would neces- The test for determining what mesarily take place. While in other lo- dicinal compounds or preparations calities, where intoxication could be may be considered intoxicating, within shown, even in one instance, to have

the meaning of the term “intoxicating followed the use of lager

liquors” as used in the Prohibition sons selling it without license, in the

Laws adopted in a majority of the jurquantities mentioned in the statute, isdictions, is as to the capability of would as surely be convicted. On the the article in question for use as a contrary, the general intent affecting beverage. this, as well as all other laws made to

United States.-United States define and prohibit criminal offenses, Stubblefield (1889) 40 Fed. 454. is that the offense shall be so clearly Alabama.-Carl v. State (1888) 87 described that the public will encoun

Ala. 17, 4 L.R.A. 380, 6 So. 118, 8 Am. ter no serious difficulty in discovering

Crim. Rep. 404, subsequent appeal in its distinguishing attributes. In this

(1889) 89 Ala. 93, 8 So. 156; Compton view of the statute, lager beer falls

v. State (1891) 95 Ala. 25, 11 So. 69. within the term "intoxicating li

Georgia.—Chapman v. State (1896) quors,” if the use of it is ordinarily or

100 Ga. 311, 27 S. E. 789; Colwell v. commonly attended with entire or par- State (1900) 112 Ga. 75, 37 S. E. 129; tial intoxication; if the use is not or- Bradley v. State (1904) 121 Ga. 201, dinarily or commonly attended with

48 S. E. 981; Mason v. State (1907) this effect, the sale of it without li

1 Ga. App. 534, 58 S. E. 139; Roberts cense is not embraced within the pro- v. State (1908) 4 Ga. App. 207, 60 S. E. hibition of the statute. It is not neces

1082. sary, in order to constitute an offense

Iowa.—State V. Laffer (1874) 38 under this statute, that persons or- Iowa, 422; Berner v. McHenry (1915) dinarily or commonly using the article

169 Iowa, 483, 151 N. W. 450. should become intoxicated by means Maine.-Heintz v. Le Page (1905) of the effects produced by it; for that

100 Me. 542, 62 Atl. 605; STATE V. INis not the effect of using many other

TOXICATING LIQUORS & VESSELS, ante, liquors conceded and assumed to be

1128, intoxicating. Whether intoxicating or Massachusetts.-Com. v. Ramsdell not must depend very much on the (1881) 130 Mass. 68. quantity used, and the sensibility of Texas.-Pearce v. State (1905) 48 the stomach of the person using it. Tex. Crim. Rep. 352, 88 S. W. 234, 13 It is sufficient to constitute an offense Ann. Cas. 636. under this statute that an ordinary Whether a compound, consisting of

drugs, barks, or other medicinal sub

erage, which contained alcohol in such stances, and spirituous liquor, is with

a percentage as to produce intoxicain the prohibition of the statute, de- tion when drunk to excess. To the pends on the question whether the same

effect was Colwell v. State article sold is, in reality, an intoxicat- (1900) 112 Ga. 75, 37 S. E. 129. ing liquor. If the liquor and other in- In United States Stubblefield gredients are used and mixed in such (Fed.) supra, in holding that preparamanner and proportions as to counter- tions known as "lemon ginger" and act the intoxicating force and char- "empire tonic bitters" should be acter of the liquor, fairly constituting classed as medicinal preparations, the a medicine, and rendering its use as a court said: “The fact that men with a beverage practically impossible, it strong appetite for drink may occadoes not come within the statute. On sionally buy one of these preparations, the other hand, if the liquor is the and by an immoderate use of the same predominant element, or sufficiently become drunk, is not an adequate rearetains its intoxicating qualities so as son for classifying them as distilled to render the mixture reasonably sus- spirits. It is safe to assume that alcoceptible of use as a beverage, or of hol enters into the preparation of some substitution for the ordinary intox- other compounds that no one would icating drinks, it is within the stat- think of classifying as distilled spirits, utory prohibition. Carl v. State and in such quantity that a man might be Compton v. State (Ala.) supra. made drunk by imbibing them too free

Thus, in Compton v. State (Ala.) su- ly. The fact, therefore, that a mixture pra, wherein, under an indictment possesses so much alcohol that persons charging the sale of spirituous, vinous, may become intoxicated by drinking or malt liquors, it appeared that the such a quantity as may be drunk withreal inquiry was whether the tonic or out imperiling life, cannot be accepted cordial sold by the defendant con- as the sole test by which to determine tained sufficient spirituous, vinous, or if the mixture should be classed as malt liquors to make the same an “in- distilled spirits, and dealers therein toxicating mixture, compound, or bit- as liquor dealers. If a preparation is ters," the court said: “The rule for not intended as a beverage, but is put determining that question has been up in good faith as a medicinal prepdeclared by this court as follows: 'If aration, and is only advertised and the liquors and other ingredients are sold as such, and there are reasonable used and mixed in such manner and grounds to believe that it possesses proportions as to counteract the in- curative qualities, and no more spirtoxicating force and character of the

its are used in the preparation than liquor, fairly constituting a medicine, are reasonably necessary to extract and rendering its use as a beverage and hold in solution the medicinal practically impossible, it does not properties of the various drugs emcome within the statute. On the oth- ployed, such preparation is medicinal, er hand, if the liquor is the predomi- and does not lose its character as nant element, or sufficiently retains its such, although it is intoxicating when intoxicating qualities so as to render used to excess." the mixture reasonably susceptible of

The true inquiry is whether the liuse as a beverage, or the substitution

quor used is necessary to extract and for the ordinary intoxicating drinks,

preserve the medicinal properties of it is within the statutory prohibition.' the other ingredients, and its distincCarl v. State (1889) 89 Ala. 93, 8 So. tive intoxicating character is so coun156.”

teracted, or greatly impaired, that its In Chapman v. State (Ga.) supra, reasonable and ordinary use will not it was held that a statute prohibiting intoxicate,-whether it is, in reality, the sale of “spirituous, malt, or intox- a medicine. Carl v. State (Ala.) suicating liquors," without a license, in- pra. cluded within its meaning a medicinal If the compound would nauseate bepreparation capable of use as a bev- fore it would intoxicate, it is not desir

as

able, and is not reasonably susceptible er in fact its distinctive character of being used as a beverage, or as a as intoxicating liquor was in fact substitute for the ordinary intoxicat- changed into that of a medicine, or ing drinks. Ibid.

whether certain roots or tinctures, In Geer Drug Co. v. Atlantic Coast which had not in fact changed the Line R. Co. (1916) 104 S. C. 207, 88 character of the liquor, had been comS. E. 448, Ann. Cas. 1917C, 908, it was pounded therewith. The court held held that a liquor which, owing to its that this was the true test, saying: composition, would not intoxicate any "So long as the liquors retain their person by its immoderate use, for the character as intoxicating liquors, capreason that a person so using it would able of use as a beverage, notwithbecome sick long before he became in- standing other ingredients may have toxicated, was not an “intoxicating li- been mixed therewith, they fall under quor" within the statute (Acts 1915, p. the ban of the law; but when they are 140, § 1) prohibiting the delivery of so compounded with other substances any intoxicating liquors within the as to lose the distinctive character of state.

intoxicating liquors, and are no longer So, testimony offered to prove, with desirable for use a stimulating respect to a mixture of quinine and beverage, and are in fact medicine, whisky, that "no reasonable person then their sale is not prohibited." would drink it as a beverage, or would An Iowa statute (Code, $ 2385) prodrink sufficient of it to become intox- vides that druggists holding permits icated upon it," would present no prop- may sell and dispense intoxicating lier test. People v. Sharrer (1910) 164 quors, not including malt liquors, but Mich. 267, 127 N. W. 901, 130 N. W. forbids the sale of any preparation or 693.

compound under any name, form, or It should not be understood, howev- device which may be used as a bever, that a preparation is considered in- erage, and which is intoxicating in its toxicating, in the estimation of the character. Thereunder, it has been statute, because it may intoxicate if held that the character of the comused in unreasonable and excessive pound, rather than the good faith of quantities. The excessive and immod- the seller, is the test by which to deerate use of any preparation, in which termine the legality of the sale. State alcohol is used in sufficient quantity v. Gregory (1900) 110 Iowa, 624, 82 to preserve the other ingredients, may N. W. 335. In other words, if its disintoxicate; but the mixture does not tinctive character as an intoxicating fall under the ban of the statute be- liquor is so destroyed that it cannot cause spirituous liquor is present. be used as a beverage, and it becomes Carl v. State (1889) 89 Ala. 93, 8 So. in fact a medicine that cannot, in rea156.

son, be styled or used as an intoxicatMedicinal, toilet, or culinary prep- ing drink, its sale is not in violation arations, recognized as such by stand- of law. Berner v. McHenry (1915) ard authorities, and generally used as 169 Iowa, 483, 151 N. W. 450. medicines, and not reasonably capable So, in Bradley v. State (Ga.) supra, of use as intoxicating beverages, are wherein the question was whether the not to be regarded as within the mean- defendant had sold an intoxicating ing of the expression, "intoxicating beverage or a medicine, the court said: liquors," although such articles are "The supreme court of Kansas, conliquid, contain alcohol, and may pro

struing a statute very similar to ours duce intoxication. Bradley V. State as applied to a mixture of intoxicating (1904) 121 Ga. 201, 48 S. E. 981; Ma- liquors with certain medicinal inson v. State (1907) 1 Ga. App. 534, 58 gredients, held that 'if the compound S. E. 139; Roberts v. State (1908) 4 or preparation be such that the disGa. App. 207, 60 S. E. 1082.

tinctive character and effect of intoxIn State v. Laffer (1874) 38 Iowa, icating liquor are gone, that its use 422, it appeared that the instructions as an intoxicating beverage is pracgiven left it to the jury to find wheth- tically impossible by reason of the

а