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other ingredients, it is not within the statute.' 'If the intoxicating liquor remain as a distinctive force in the compound, and such compound is reasonably liable to be used as an intoxicating beverage, it is within the statute, and this, though it contain many other ingredients, and ingredients of an independent and beneficial force in counteracting disease or strengthening the system.' Intoxicating-Liquor Cases (1881) 25 Kan. 751. Our Local Option Statute was designed to prohibit the sale of all intoxicating beverages in those counties which adopted its provisions in the manner prescribed by the statute. It was not intended that the people were to be deprived of the remedial benefits of alcohol as a constituent element of medicinal concoction; neither was it intended that by a combination of medicinal ingredients alcohol or intoxicating liquor could be sold as a beverage. The test applied in the Kansas case from which we have quoted has been approved by the courts in many of our sister states.

. . The justice of the test seems apparent, and is supported by reason and authority."

In Pearce v. State (1905) 48 Tex. Crim. Rep. 353, 88 S. W. 234, 13 Ann. Cas. 636, wherein the question was whether the sale of a preparation called "Kidney Specific" was a violation of the Local Option Law, in that the liquor was intoxicating liquor, the court said: "The rule in regard to matters of this sort is well stated in vol. 17, Am. & Eng. Enc. Law, 2d ed. 204. 'It has been held that whatever is generally and popularly known as medicine or an article for the toilet, recognized and the formula of its preparation prescribed by the United States Dispensatory or like standard authority, and not among the liquors ordinarily used as intoxicating beverages, such as tincture of gentian, paregoric, bay rum, cologne, etc., is not an intoxicating liquor within the meaning of the statutes regulating and prohibiting the traffic in intoxicating liquors; and the courts may so de-. clare as a matter of law, notwithstanding such articles contain alcohol and

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may produce intoxication. . the compound or preparation be such that the distinctive character and effects of intoxicating liquors are gone, and its use as a beverage is rendered undesirable or practically impossible. by reason of the other ingredients, and the liquor is used merely as a vehicle for or preservation of the other ingredients, or to extract their virtues and hold them in solution, the article will not be within the prohibition of the statute, although its use may produce intoxication. On the other hand, if the liquor is the predominant ingredient, and sufficiently retains its intoxicating qualities to render the mixture reasonably susceptible of use as a beverage, it is within the prohibition of the statute. The laws cannot be evaded by disguising intoxicating liquors sold as a beverage with some tincture or preparation which will give to the liquor, to some extent, the flavor or appearance of medicine, or by mixing with the liquor drugs, barks, or seeds which have medicinal qualities.' .. If this was a medical compound with only sufficient amount of gin included to preserve it, or to extract the properties from the ingredients, and was not usually sold as a beverage, but as a medicine, it would not be violative of the statute to sell it, and the jury should have been given some criterion by which this question, which is the crucial point in the case, could be decided by them." The court also held that the following special charges should have been given: "You are further charged, as a part of the law of this case, if you find the liquor sold was a medical preparation, and was not an intoxicating liquor when drank in such quantities as could be practically drank, you will find the defendant not guilty." And again: "You are further charged, as a part of the law of this case, that if the liquor sold contained various drugs as ingredients, and that a person taking same in such quantities as could be practically drank would be influenced by the same, or made drunk, but that such effect or drunk produced by the preparation was the result of the drugs so con

tained in same, and was not the result of any intoxicating liquor so contained in said preparation, you will find the defendant not guilty.”

In Arbuthnot v. State (1909) 56 Tex. Crim. Rep. 517, 120 S. W. 478, the defendant requested the court to charge the jury as follows: "You are charged as a part of the law in this case, if you find from the evidence that the liquor sold was popularly known as a medicine, recognized as such, and the formula of its preparation prescribed in the United States Dispensary, or like standard authority, and not among the liquors ordinarily used as intoxicating beverages, it is not an intoxicating liquor. And if you find that the preparation be such as that the distinctive character and effects of intoxicating liquors are gone and its use as a beverage is rendered undesirable by reason of other ingredients, and the liquor is used merely as a vehicle for the preserving of the other ingredients, or to extract their virtues and hold them in solution, although it produce intoxication, the article will not be in prohibition of the statutes, and you will find the defendant not guilty." The court said, however, in holding that the giving of the charge was properly refused: "The Pearce Case (Tex.) supra, seems to suggest that this would probably be a correct charge, but a careful reading of said decision will show that it was not intended to lay down such a proposition. Clearly, the sheer fact that a formula to prepare a certain compound be found in the United States Dispensary or like standard authority would not per se make it a nonintoxicating liquor, nor would the fact, as we understand the decisions of this court, that the distinctive character and effects of intoxicating liquors are gone, render it any the less an intoxicating liquor when drank in such quantities as may be practically taken into the human stomach."

produce intoxication, is intoxicating liquor. If its composition is such that it is practicable to commonly and ordinarily drink it as a beverage, and to drink it in such quantities as to produce intoxication, it is intoxicating liquor." Heintz v. Le Page (1905) 100 Me. 542, 62 Atl. 605.

"Any liquor containing alcohol, which is based on such other ingredients, or by reason of the absence of certain ingredients, that it may be drank by an ordinary person as a beverage, and in such quantities as to

In order to determine whether the Massachusetts statute forbidding the sale, without due authority, of spirituous or intoxicating liquors, applies to a sale, the true test is to inquire whether the article sold is in reality an intoxicating liquor. If it is, the sale is illegal, although it is sold to be used as a medicine, or it is attempted to disguise it under the name of a medicine, or it is a mixture of liquor and other ingredients. But if the article sold cannot be used as an intoxicating drink, it is not within the prohibition of the statute, although it contains as one of its ingredients some spirituous liquor. Com. v. Ramsdell (1881) 130 Mass. 68.

In James v. State (1886) 21 Tex. App. 353, 17 S. W. 422, it was held that medicated bitters producing intoxication were intoxicating liquors, within the meaning of that term as used in the state Constitution.

2. Under Kansas statute. The Kansas Liquor Law of 1881 (Laws 1881, chap. 128, § 1) prohibited the manufacture or sale of any spirituous, malt, vinous, fermented, or other intoxicating liquors. The tenth section provided as follows: "All liquors mentioned in § 1 of this act, and all other liquors or mixtures thereof, by whatever name called, that will produce intoxication, shall be considered and held to be intoxicating liquors within the meaning of this act." This law was interpreted in the Intoxicating-Liquor Cases (1881) 25 Kan. 751, 37 Am. Rep. 284, wherein the court said: "This section, whose language is unfortunately chosen, is the one which has provoked this litigation, and has tended to create so much prejudice against the statute; for its letter reaches to preparations which no man can believe were within the intent of the legislature, and any inter

ference with whose sale, if within the power of the legislature, would be felt by everyone to be unnecessary and unreasonable. Alcohol is the intoxicating principle, the basis of all intoxicating drinks. Whatever contains alcohol will, if a sufficient quantity be taken, produce intoxication. Hence, whatever liquor contains alcohol is within the statute. So reads its letter. But, when we come to inquire as to the liquors which contain alcohol, we find a lengthy list of fluids which are never used as beverages. Cologne, extract of lemon, bay rum, paregoric, tincture of gentian, and many other medicinal preparations contain alcohol, and all will produce intoxication. They are seldom used as a beverage, and yet they may be. Intoxication produced by drinking bay rum has been known. Yet few drink it. Its uses are for the toilet. But three of the cases before us are prosecutions for the sale of bay rum, essence of lemon, and tincture of gentian, respectively. These preparations contain alcohol, and will each, it is charged, produce intoxication. If the statute includes such articles, many of them are absolutely and wholly shut out from sale. The excepted purposes in the statute are 'medical, scientific, and mechanical.' But toilet and culinary purposes are strictly inIcluded within no one of the three.

But the legislature never intended such a sweeping prohibition. The use of intoxicating liquors as a beverage was the evil, and the statute must be read in the light thereof. It intended to put a stop to such use, and limit the use to the necessities of medicine. Now, the cases before us group themselves into three classes; and the same division is far-reaching and of general application. The first embraces what are generally and popularly known as intoxicating liquors, unmixed with any other substances. Thus, in one case the sale of brandy is charged. The second includes articles equally well known, standard articles, and which, while containing alcohol, are never classed as intoxicating beverages. Their uses are culinary, medical, or for the toilet. They are named in the United States Dis

pensatory and other similar standard authorities; the formulæ for their preparation are there given; their nized and known by their names as uses and character are as well recogthose of a horse, a spade, or an arithmetic. The possibility of a different and occasional use does not change their recognized and established character. A particular spade may be fixed up for a parlor ornament, but the spade does not belong there. So essence of lemon may contain enough alcohol to produce intoxication,-more alcohol proportionately than many kinds of wine or beer. It is possible that a man may get drunk upon it, but it is no intoxicating liquor. Bay rum, cologne, paregoric, tinctures generally, all contain alcohol, but in no fair or reasonable sense are they intoxicating liquors or mixtures thereof. The third class embraces compoundspreparations in which the alcoholic stimulant is present, which are not of established name and character, which are not found in the United States Dispensatory, or other like standard authorities, and which may be purely medicinal in their purpose and effect, or mere substitutes for the usual intoxicating beverages. If not intoxicating liquors, they may be 'mixtures thereof' within the scope of the statute. Here belong many of the patent medicines, the bitters, cordials, and tonics of the day. Here also are such compounds as that charged in one of the informations before us,-a compound of whisky, tolu, and wild cherry. Now, in reference to these classes, we think these rules may be laid down: The first class is within and the second without the statute; and the court, as matter of law, may SO declare. It is unnecessary, in charging the sale of whisky or brandy, etc., to allege that it will produce intoxication; nor will it bring the sale of essence of lemon within the statute to allege that such essence will produce intoxication. The courts will take judicial notice of the uses and character of these articles. You need not prove what bread is, or for what purposes it is used. No more need you in respect to whisky or gin on the

one hand, or cologne or bay rum on the other. They are all articles of established name and character. In reference to the third class, the question is one of fact, and must be referred to a jury. If the compound or preparation be such that the distinctive character and effect of intoxicating liquor are gone, that its use as an intoxicating beverage is practically impossible by reason of the other ingredients, it is not within the statute. The mere presence of alcohol does not necessarily bring the article within the prohibition. The influence of the alcohol may be counteracted by the other elements, and the compound be strictly and fairly only a medicine. On the other hand, if the intoxicating liquor remain as a distinctive force in the compound, and such compound is reasonably liable to be used as an intoxicating beverage, it is within the statute; and this, though it contain many other ingredients, and ingredients of an independent and beneficial force in counteracting disease or strengthening the system. Intoxicating liquors, or mixtures thereof: this, reasonably construed, means liquors which will intoxicate, and which are commonly used as beverages for such purposes, and also any mixtures of such liquors as, retaining their intoxicating qualities, it may fairly be presumed may be used as a beverage, and become a substitute for the ordinary intoxicating drinks. Whether any particular compound or preparation of this class is then within or without the statute is a question of fact, to be established by the testimony and determined by a jury. The courts may not say as a matter of law that the presence of a certain per cent of alcohol brings the compound within the prohibition, or that any particular ingredient does or does not destroy the intoxicating influence of the alcohol, or prevent it from ever becoming an intoxicating beverage. Of course, the larger the per cent of alcohol and the more potent the other ingredients, the more probably does it fall within or without the statute; but in each case the question is one of fact, and to be settled as other questions of fact." See, to the same effect,

State v. Coulter (1888) 40 Kan. 87, 19 Pac. 388; State v. Raynolds (1896) 5 Kan. App. 515, 47 Pac. 573. But the Liquor Law of 1909 (Laws 1909, chap. 164, § 1), which likewise prohibits the manufacture or sale of any spirituous, malt, vinous, fermented, or other intoxicating liquors, contains a section reading as follows: "All liquors mentioned in § 1 of this act shall be construed and held to be intoxicating liquors within the meaning of this act." In State v. Miller (1914) 92 Kan. 994, L.R.A.1917F, 238, 142 Pac. 979, Ann. Cas. 1916B, 365, it was held that this statute was intended to change the law, with the result that the classification established under the Law of 1881, and the decision in the Intoxicating-Liquor Cases (Kan.) supra, were abrogated. Liquors belonging to the first class there described, such as whisky, brandy, gin, wine, beer, and the like, were still to be construed as intoxicating, the court held. All other liquors belonged to the third class, and the rule or test was stated as follows: "If the liquor be such that the distinctive character and effect of intoxicating liquor be absent, it is outside the statute; if the distinctive character and effect of intoxicating liquor be present, it is within the statute. The fact is to be determined by the jury, or by the court when sitting as a trier of the facts. If in any case the liquor sold or kept for sale be identified by the proof as plain whisky or brandy or gin or wine or beer, or other spirituous, malt, vinous, or fermented liquor of the kind specifically mentioned in the statute, it shall be construed and held to be intoxicating. As to such liquors, the statute simply declares what the courts and everybody else know. If the liquor sold or kept for sale be not so identified, but belongs by name or qualification to some other class, or be unclassified, its intoxicating character must be submitted to the jury, or to the court when trying the facts, as a question of fact. In such cases the evidence may relate to its nature and constituent elements, its ordinary use, its susceptibility to use as an intoxicant, the extent of such use, and all

other matters which in the particular instance will aid in determining the issue."

3. Under Missouri statute.

V.

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 State any quantity whatever. 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. Hence, in a prosecution for violation of the law by the sale of medicinal preparations, as Peruvian strengthening elixir, Harter's Wild Cherry Bitters, and Waukaska Cream Ale, it is not necessary for the state to show that the liquid 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 liquid sold contained alcohol, and was of such character that it could be used as a beverage, or that it contained alcohol, and was used as a beverage. State v. Wills (Mo.) supra.

4. Under New York statute. The New York statute (Liquor Lax Law, § 2; 33 McKinney, Consol. Laws, p. 11) provides as follows: "The term 'liquors,' as used in this chapter, includes and means all distilled or rectified spirits, wine, fermented, and malt liquors." In People v. Cox (1905) 106 App. Div. 299, 94 N. Y. Supp. 526, affirming (1904) 45 Misc. 311, 92 N. Y. Supp. 125, the court declared that it seemed to have been the deliberate intention and purpose of the legislature in passing the Liquor Tax Law, to omit therefrom the words, "strong," "spirituous," and "intoxicating," and to include within the prohibitive parts thereof the traffic in

all alcoholic beverages within the definition of "liquor," as construed in that statute, and to relieve the court from determining as a fact whether the liquor sold or given away was intoxicating.

That the liquor is intoxicating is, therefore, the test under the present statute. Clement v. Dwight (1910) 137 App. Div. 389, 121 N. Y. Supp. 788. Still, the question as to whether a liquor comes within the statute depends on, and so one of the tests applied to any mixture for the purpose of ascertaining whether it is liquor within the meaning of the Liquor Tax Law is, the quantity of alcohol it contains. Ibid. So, when there is found in any preparation 27 per cent of alcohol and 73 per cent of water, it is clear that it must be a liquor within the act, unless its effect is destroyed or largely neutralized by its mixture with other ingredients. Ibid.

5. Under North Dakota statute. The North Dakota statute (Rev. Codes 1899, § 7598) provides as follows: "All spirituous, malt, vinous, fermented, or other intoxicating liquors or mixtures thereof, by whatever name called, that will produce intoxication, or any liquor or liquids which are made, sold or offered for sale as a beverage and which shall contain coculus indicus, copperas, opium, cayenne pepper, picric acid, Indian hemp, strychnine, tobacco, darnel seed, extract of logwood, salts of zinc, copper or lead, alum or any of its compounds, methyl alcohol or derivations, amyl alcohol or any extract or compound of any of the above ingredients, shall be held to be intoxicating liquors within the meaning of this chapter." Thereunder, in State v. Virgo (1905) 14 N. D. 293, 103 N. W. 610, the court held that the statute only prohibited the sale of intoxicating liquors; that was, liquors that would produce intoxication. The court held that the term, "intoxicating liquors," included spirituous, malt, vinous, fermented, or other intoxicating mixtures thereof "that will produce intoxication;" also all liquors or liquids, sold as a beverage, which were compounded from the

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