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drugs enumerated, that would produce plied not only that the alcohol must intoxication. The court held that the be present in appreciable quantity, but requirement that they would produce that, being so present, it retained its intoxication

common to both characteristic intoxicating principle. classes. Later, the legislature passed The expression, “became a substitute an act (Laws 1909, chap. 187), the for the ordinary intoxicating drinks," purpose of which was to define the li- the court held, could only refer to quors that were to be presumed by the such beverages as common experience courts to be intoxicating, within the taught would be used in place of wellmeaning of the statute prohibiting the known intoxicating liquors, when, by sale and manufacture of intoxicating reason of a prohibitory statute or some liquors. Pursuant to this purpose, a

other extraordinary case, they could number of liquors or beverages were not be obtained by the usual means of enumerated, divided into four classes, sale and purchase. The court held the first class including only such as that in its view, therefore, under a were generally recognized as intoxi- true, fair, and reasonable interpretacating, viz., "alcohol, whisky, rum, tion, the clause of the statute defining brandy, beer, ale, porter, wine, and the third class of liquors that were to hard cider.” The second class includ- be deemed intoxicating was intended ed not by name, but by general desig- to describe a beverage which connation, “all spirituous, malt, vinous, tained alcohol, or other drug having fermented, or other intoxicating li- an intoxicating quality, in a quantity quors or mixtures thereof by whatso- reasonably appreciable, in which it ever name called .

that will pro

had not, by chemical combination, lost duce intoxication of any degree, or its intoxicating principle, and which any mixtures of such.” The third liquor, according to common expeclass, by a description more sweeping rience and observation, would be reand general than any in the act, em- sorted to on failure to procure the braced "any kind of beverage what- ordinary intoxicating drinks in the soever, which, retaining the alcoholic

usual way. In such a liquor, the court principle or other intoxicating quali- held, alcohol, or other drug of kindred ties as a distinctive force, may be used quality, preserving its native characas a beverage and become a substitute teristics, must be present, but not necfor the ordinary intoxicating drinks." essarily in such quantity as to proThe fourth class included any liquors duce intoxication. Whether it was or liquids which were made, sold, or present in a quantity reasonably reoffered for sale as a beverage and cognizable, and as a distinctive force, which should contain certain drugs was a question of fact to be determined specifically mentioned (those enumer- by the ordinary tests, among which ated in the previous statute). This was the consideration that it "may be statute was construed in State v.

used as a beverage, and become a subFargo Bottling Works Co. (1910) 19 stitute for the ordinary intoxicating N. D. 396, 26 L.R.A.(N.S.) 872, 124 N. drinks." W. 387. The court held that the term,

6. Under Oklahoma statute. "alcoholic principle,” had no reference whatever to quantity, but to quality, An Oklahoma statute (Snyder's and that in its use, therefore, of the ex- Comp. Laws, $ 4180) forbids the manupression, "retaining the alcoholic prin- facture, sale, barter, giving away, or ciple or other intoxicating quality,” the otherwise furnishing of "any liquors legislature evidently meant to connect or compounds of any kind or descripwithout reference to quantity two tion whatsoever, whether medicated or qualities, viz., the intoxicating quality not, which contain as much as present in alcohol with that found in of 1 per centum of alcohol measother poisonous drugs, possibly those, ured by volume, and which is capaor some of nose, mentioned in the lat- ble of being used as a beverage, exer part of the act. The phrase, “as a cept preparations compounded by any distinctive force," the court held, im- licensed pharmacist, the sale of which would not subject him to the interposed for protection against payment of the special tax required criminal prosecutions.” King v. State by the laws of the United States." In (1881) 58 Miss. 737, 38 Am. Rep. 344. Moss v. State (1910) 4 Okla. Crim. This rule or test was followed in Rep. 247, 111 Pac. 950, the court said: Bertrand v. State (1895) 73 Miss. 51, "'This provision is intended to forbid 18 So. 545, and in Goode v. State the sale of patent medicines and medi- (1905) 87 Miss. 495, 40 So. 12. cated drinks, and compounds which In Goode v. State (Miss.) supra, the contain alcohol and are capable of be- court said: “The true rule is that exing used as a beverage.”

pressed in the case of King v. State

(Miss.) supra. In that case the inb. Purpose of sale.

struction for the state, which was upIn some jurisdictions, the test for

held, in effect charged the jury 'that if determining whether a medicinal com

the compound was intoxicating, and pound or preparation is within the

was sold by the defendants as a spirstatutes relating to intoxicating li

ituous beverage, and not as a mediquors is held to depend on the pur

cine, they ought to find the defendants pose or use to be made of the article,

guilty.' And that instruction clearly and for which it is sold and bought,

expresses the real test of guilt in the the intent governing. Holcomb v. Peo

state of case made by this record. If ple (1892) 49 Ill. App. 73; King v.

three things appear from the evidence State (1881) 58 Miss. 737, 38 Am. Rep.

to the satisfaction of the jury they 344; Bertrand v. State (1895) 73 Miss.

should convict: (1) That the defend51, 18 So. 545; Goode v. State (1905)

ant sold the articles; (2) that the com87 Miss. 495, 40 So. 12; Russell v. Sloan (1861) 33 Vt. 656; State v.

pound was intoxicating; and (3) that

it was sold by the defendant as a spirKezer (1901) 74 Vt. 50, 52 Atl. 116; State v. Krinski (1905) 78 Vt. 162, 62

ituous beverage, and not as a mediAtl. 37; State v. Costa (1905) 78 Vt.

cine. But all three of these elements 198, 62 Atl. 38.

of guilt must be proved in order to "One authorized to sell medicines

sustain a conviction, where the com

pound is intended primarily as ought not to be held guilty of violat

medicine. It is not enough that ing the laws relative to retailing, be

the sale should have been made by cause the purchaser of a medicine con

the defendant, and that the taining alcohol misuses it and becomes

comintoxicated; but, on the other hand,

pound, if drunk to an excess, would these laws cannot be evaded by selling

be intoxicating; the evidence must go as a beverage intoxicating liquors con

further, and show from the attendant taining drugs, barks, or seeds which

circumstances of the sale, the conduct have medicinal qualities. The uses to

and demeanor of the parties, and all which the compound is ordinarily put,

other things shedding light upon the the purposes for which it is usually

transaction, that the sale was made

by the defendant, not as a medicine, hought, and its effect on the system,

but as a beverage.” are material facts from which may be

It would be, it has been said, "a narinferred the intention of the seller.

row construction" of the Vermont statIf the other ingredients are medicinal,

utes in regard to intoxicating liquors, and the alcohol is used either as a

a mere following of the letter, without necessary preservative or vehicle for

regard to the spirit and object of the them,-if, from all the facts and cir

law, to hold that the words, “intoxicatcumstances, it appears that the sale is ing liquors," should include medicines of the other ingredients as a medicine, or medicinal preparations when alcoand not of the liquor as a beverage,- hol is used in them in quantities capathe seller is protected; but if the drugs ble of producing intoxication. When, or roots are mere pretenses of medi- therefore, these medicines, bitters, and cines, shadows and ices nder tinctures are made and sold in good which an illegal traffic is to be con- faith for their true and legitimate use, ducted, they will be but shadows when to prevent or cure disease, they cannot


be regarded as within the class of in- arations, fluid extracts, and toilet toxicating liquors whose sale is pro- articles of which alcohol is the solhibited or regulated by law. But when vent principle, even though they conintoxicating drinks, intended to be tain more than 1 per cent of alcosold and used as a beverage, are, by hol. The act is not intended to effect some tincture or preparation, slightly any change of the law in this respect, disguised so as to have to some ex- and State v. Kezer (Vt.) supra, is still tent the taste, flavor, or appearance of applicable, as regards the purpose of medicines or bitters, when in fact they the keeping or sale, State v. Krinski are really meant to be sold and used (1905) 78 Vt. 162, 62 Atl. 37. In this as intoxicating drinks, such mixtures, case the court said: “The respondent however disguised, are within the pro- submitted several requests as to what hibition of the law. Russell v. Sloan constitutes a beverage, and excepted (1861) 33 Vt. 656. So the purpose of to the court's refusal to comply therethe Vermont statute (Vt. Stat. 4460), with, and to its charge upon that subprohibiting the sale of "spirituous or ject; and now argues that the court intoxicating liquor, or mixed liquor of erred in saying: 'If this preparation which a part is spirituous or intoxicat- ... is a beverage that is capable ing,” is to prevent the sale of those of producing intoxication, and may be liquors as a beverage commonly used for that purpose, then it is proknown as and called intoxicating, and hibited.' But this sentence must be to restrain intemperance; and it is a considered in connection with other reasonable view that where a medic parts of the charge. The court first cine, or other preparation containing took up the question whether this enough alcohol to make a man drunk, Jamaica ginger was a beverage within is sold and bought for that purpose, the meaning of the law. And in conit is, by the act of the parties, given sidering this question, after referring a status with intoxicating liquors. to the evidence in respect to its being Hence, when one of the preparations used as a beverage, the court said, in made for medicinal, culinary, and oth- substance, that the law did not mean er purposes, containing a large per that it must be classed among liquors cent of alcohol, but not made for a that are ordinarily used as beverages, beverage, is sold for the purpose of in- but that it is sufficient if the liquid is toxication or the seller has reasonable one that can practically be used as a cause to believe it is obtained for that beverage; and be drunk for the purpurpose, the question is whether the

pose of intoxication; but if the prepasale is not in contravention of the ration was a beverage capable of prostatute; whether the parties, by their ducing intoxication, and one that could voluntary act, do not take the prepara- be used for that purpose, then it fell tion out of its legitimate use, and place within the list of intoxicating liquors, it in the list of intoxicating liquors. and the sale or keeping for sale was State v. Kezer (1901) 74 Vt. 50, 52 Atl. prohibited. The evident meaning of 116.

this is that a preparation of this kind And it has been held that it is not may, in some circumstances, be classed the manifest purpose of a later statute

with intoxicating liquors, and so come (Act of 1902, No. 90, § 21; Pub. Stat.

within the prohibition, although not 1906, § 5101), providing that the

ordinarily used as a beverage; and words, "intoxicating liquor," or "li- the remainder of the charge makes it quor," as used in this chapter, shall

certain that it must have been so uninclude spirituous or intoxicating li

derstood by the jury. For the court quor, malt liquors, lager beer, fer- then proceeds to consider the purpose mented wine, fermented cider, dis

for which this article was kept; and tilled spirits, and any beverage which

states the claim of the respondent that contains more than 1 per cent of alco- he kept it to sell for medicinal purhol, by volume, at 60 degrees Fahren- poses, and not to sell as a beverage; heit, to exclude from the term “in- and declares it to be the leading questoxicating liquor," all medicinal prep- tion in the case whether the respond

ent kept it with intent to sell it as a beverage; and directs the attention of the jury to the evidence upon one side and the other bearing upon that point. The court said further that if they found the respondent had made sales of this preparation to be used as a beverage for the purpose of intoxication, that would be a circumstance tending to show that the stock on hand was designed for the same purpose. Later, the court concluded a restatement of the case in these words: "The important inquiry, I repeat, is, Was it kept for the purpose of sale, with intent to sell it as a beverage?' It is clear that the respondent was not harmed by the sentence complained of, if the court was right in holding that the liquid in question could be made a beverage under the law then existing." Under this latter statute, in the case of tinctures, essences, and compounds having a legitimate use for medicinal, culinary, or toilet purposes, the mere presence, as a solvent, preservative, or otherwise, of more than the proportion of alcohol named in the statute, does not make the preparation one which the statute applies. In respect to such articles, the inquiry is not simply whether they contain more than 1 per cent of alcohol, but there is the further inquiry whether or not the articles are sold to be used as beverages. In respect to the sale of such preparations the intent governs. If there is no intent to sell these preparations for other than legitimate uses there is no offense. If, however, a preparation is capable of being used as a beverage, and is sold or kept for sale with the purpose, intent, or understanding that it is to be used as a beverage, then, if it contains more than 1 per cent of alcohol, an offense is committed. State v. Costa (1905) 78 Vt. 198, 62 Atl. 38.

In Holcomb v. People (1892) 49 Ill. App. 73, it was held that extract of lemon, an article generally and properly known and used for culinary purposes, recognized, and a formula prescribed for its preparation as such, in standard dispensatories prior to the enactment of the Dramshop Act, and not then known and classed among li

quors used as a beverage, was not to be deemed an intoxicating liquor within the meaning of the act, simply because it contained alcohol in sufficient quantity to produce, and did produce, intoxication, where the sale was not a shift or device to evade the law. To the same effect was Walker v. Dailey (1901) 101 Ill. App. 575.

III. Preserved fruits. In Knowles v. State (1885) 80 Ala. 9, it appeared that the defendant was indicted and tried for selling intoxicating liquors in violation of a local statute. On the trial, a witness for the state testified that he bought of the defendant three bottles containing fruit, with liquid around the fruit; that he and another had eaten of the fruit and drunk the liquid in the bottles; that the effect of this eating and drinking on the witness was like the effect of drinking whisky; and that he felt as though he was intoxicated. The defendant introduced a witness who testified that he had many times bought of the defendant the same kind of fruit and liquid in bottles, and had eaten the fruit and drunk the liquid without feeling any intoxicating effect, or any such effect as he experienced from drinking whisky. This testimony, however, as well as similar testimony from a number of witnesses, was excluded by the trial court. In holding that this was error, the court said: “The question for decision was the intoxicating quality of this fuid or beverage, which contained cherries, and was sold in bottles by the defendant. A witness for the state had testified that its effect upon himself and another person had been similar to that ordinarily produced by whisky. It was competent to show by others that its effect on them, when drank in appreciable quantities, was not intoxicating. The most available mode of testing the nature and properties of a fluid or drug, next to that of chemical analysis, is by its effect on the human system. That a liquor, when taken in certain quantities, intoxicated or failed to intoxicate the person taking it, is as competent to prove or disprove its intoxicating qualities, as it

would to prove the poisonous nature Under the Texas law making the of a drug by the effect following its ad- sale of spirituous, vinous, or malt li. ministration. Negative testimony of quors or medicated bitters without this kind may often be very weak and procuring a license therefor a crime, inconclusive, because of the compari- it has been held that if a person purson involved in determining the rela- sued the business or occupation of tive facility with which different selling brandy cherries or brandy persons may or may not become in- peaches, and in the bottles in which toxicated or drunk. But we cannot the same were contained were not say what would have been the effect merely cherries or peaches preserved of this evidence upon the mind of the with the use of a little spirituous lijudge, who was substituted for the quor to give them a flavor, but with jury as the trier of the facts of the the peaches or cherries was contained cause, We decide nothing more than spirituous liquor that could be drunk the admissibility of this evidence, as a beverage, and that would intoxileaving to the county court itself to cate, he was amenable to the law. decide what shall be its weight or Petteway v. State (1896) 36 Tex. Crim. credibility."

Rep. 97, 35 S. W. 646. H. D. B.



Minnesota Supreme Court - May 5, 1916.

(132 Minn. 446, 157 N. W. 723.) Judgment - estoppel — different cause of action.

1. Plaintiff brought suit to recover for services, and alleged both an express contract and quantum meruit. On defendant's motion plaintiff elected to rely on quantum meruit. On the trial defendant insisted that plaintiff could not recover because the services had been rendered under an express contract; he also insisted that they had been paid for in full. The court directed the jury to return a verdict for defendant if the services had been rendered under an express contract; he also directed them to return a verdict for defendant if the services had been paid for in full. He directed them to return a verdict for plaintiff, if no express contract existed and the services had not been paid for in full. They returned a verdict for defendant, and judgment was entered thereon. Subsequently, plaintiff brought the present suit upon the express contract asserted by defendant in the former suit. Held: (1) That the doctrine of estoppel by judgment does not apply, as the present suit is not based upon the same cause of action as the former, and, if it were, that defendant is estopped from now asserting that fact; (2) that the doctrine of estoppel by verdict does not apply, as it does not appear that the issues in the present suit were necessarily determined by the judgment in the former.

[See note on this question beginning on page 1173.] Trial jury change of contract. quent contract by which certain serv

2. Whether, after making the origi- were not to be paid for under the nal contract, the parties made a subse- original contract, was a question for

Headnotes 1 and 2 by TAYLOR, C.

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