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drugs enumerated, that would produce intoxication. The court held that the requirement that they would produce intoxication was common to both classes. Later, the legislature passed an act (Laws 1909, chap. 187), the purpose of which was to define the liquors that were to be presumed by the courts to be intoxicating, within the meaning of the statute prohibiting the sale and manufacture of intoxicating liquors. Pursuant to this purpose, a number of liquors or beverages were enumerated, divided into four classes, the first class including only such as were generally recognized as intoxicating, viz., "alcohol, whisky, rum, brandy, beer, ale, porter, wine, and hard cider." The second class included not by name, but by general designation, "all spirituous, malt, vinous, fermented, or other intoxicating liquors or mixtures thereof by whatsoever name called . . . that will produce intoxication of any degree, or any mixtures of such." The third class, by a description more sweeping and general than any in the act, embraced "any kind of beverage whatsoever, which, retaining the alcoholic principle or other intoxicating qualities as a distinctive force, may be used as a beverage and become a substitute for the ordinary intoxicating drinks." The fourth class included any liquors or liquids which were made, sold, or offered for sale as a beverage and which should contain certain drugs specifically mentioned (those enumerated in the previous statute). This statute was construed in State v. Fargo Bottling Works Co. (1910) 19 N. D. 396, 26 L.R.A.(N.S.) 872, 124 N. W. 387. The court held that the term, "alcoholic principle," had no reference whatever to quantity, but to quality, and that in its use, therefore, of the expression, "retaining the alcoholic principle or other intoxicating quality," the legislature evidently meant to connect without reference to quantity two qualities, viz., the intoxicating quality present in alcohol with that found in other poisonous drugs, possibly those, or some of those, mentioned in the later part of the act. The phrase, “as a distinctive force," the court held, im
plied not only that the alcohol must be present in appreciable quantity, but that, being so present, it retained its characteristic intoxicating principle. The expression, "became a substitute for the ordinary intoxicating drinks," the court held, could only refer to such beverages as common experience taught would be used in place of wellknown intoxicating liquors, when, by reason of a prohibitory statute or some other extraordinary case, they could not be obtained by the usual means of sale and purchase. The court held that in its view, therefore, under a true, fair, and reasonable interpretation, the clause of the statute defining the third class of liquors that were to be deemed intoxicating was intended to describe a beverage which contained alcohol, or other drug having an intoxicating quality, in a quantity reasonably appreciable, in which it had not, by chemical combination, lost its intoxicating principle, and which liquor, according to common experience and observation, would be resorted to on failure to procure the ordinary intoxicating drinks in the usual way. In such a liquor, the court held, alcohol, or other drug of kindred quality, preserving its native characteristics, must be present, but not necessarily in such quantity as to produce intoxication. Whether it was present in a quantity reasonably recognizable, and as a distinctive force, was a question of fact to be determined by the ordinary tests, among which was the consideration that it "may be used as a beverage, and become a substitute for the ordinary intoxicating drinks."
6. Under Oklahoma statute. An Oklahoma statute (Snyder's Comp. Laws, § 4180) forbids the manufacture, sale, barter, giving away, or otherwise furnishing of "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." In Moss v. State (1910) 4 Okla. Crim. Rep. 247, 111 Pac. 950, the court said: "This provision is intended to forbid the sale of patent medicines and medicated drinks, and compounds which contain alcohol and are capable of being used as a beverage."
b. Purpose of sale.
In some jurisdictions, the test for determining whether a medicinal compound or preparation is within the statutes relating to intoxicating liquors is held to depend on the purpose or use to be made of the article, and for which it is sold and bought, the intent governing. Holcomb v. People (1892) 49 Ill. App. 73; King v. State (1881) 58 Miss. 737, 38 Am. Rep. 344; Bertrand v. State (1895) 73 Miss. 51, 18 So. 545; Goode v. State (1905) 87 Miss. 495, 40 So. 12; Russell v. Sloan (1861) 33 Vt. 656; State v. Kezer (1901) 74 Vt. 50, 52 Atl. 116; State v. Krinski (1905) 78 Vt. 162, 62 Atl. 37; State v. Costa (1905) 78 Vt. 198, 62 Atl. 38.
"One authorized to sell medicines ought not to be held guilty of violating the laws relative to retailing, because the purchaser of a medicine containing alcohol misuses it and becomes intoxicated; but, on the other hand, these laws cannot be evaded by selling as a beverage intoxicating liquors containing drugs, barks, or seeds which have medicinal qualities. The uses to which the compound is ordinarily put, the purposes for which it is usually hought, and its effect on the system, are material facts from which may be inferred the intention of the seller. If the other ingredients are medicinal, and the alcohol is used either as a necessary preservative or vehicle for them, if, from all the facts and circumstances, it appears that the sale is of the other ingredients as a medicine, and not of the liquor as a beverage,— the seller is protected; but if the drugs or roots are mere pretenses of medicines, shadows and devices under which an illegal traffic is to be conducted, they will be but shadows when
interposed for protection against criminal prosecutions." King v. State (1881) 58 Miss. 737, 38 Am. Rep. 344. This rule or test was followed in Bertrand v. State (1895) 73 Miss. 51, 18 So. 545, and in Goode v. State (1905) 87 Miss. 495, 40 So. 12.
In Goode v. State (Miss.) supra, the court said: "The true rule is that expressed in the case of King v. State (Miss.) supra. In that case the instruction for the state, which was upheld, in effect charged the jury 'that if the compound was intoxicating, and was sold by the defendants as a spirituous beverage, and not as a medicine, they ought to find the defendants guilty.' And that instruction clearly expresses the real test of guilt in the state of case made by this record. If three things appear from the evidence to the satisfaction of the jury they should convict: (1) That the defendant sold the articles; (2) that the compound was intoxicating; and (3) that it was sold by the defendant as a spirituous beverage, and not as a medicine. But all three of these elements of guilt must be proved in order to sustain a conviction, where the compound is intended primarily as medicine. It is not enough that the sale should have been made by the defendant, and that the compound, if drunk to an excess, would be intoxicating; the evidence must go further, and show from the attendant circumstances of the sale, the conduct and demeanor of the parties, and all other things shedding light upon the transaction, that the sale was made by the defendant, not as a medicine, but as a beverage."
It would be, it has been said, "a narrow construction" of the Vermont statutes in regard to intoxicating liquors, a mere following of the letter, without regard to the spirit and object of the law, to hold that the words, "intoxicating liquors," should include medicines or medicinal preparations when alcohol is used in them in quantities capable of producing intoxication. When, therefore, these medicines, bitters, and tinctures are made and sold in good faith for their true and legitimate use, to prevent or cure disease, they cannot
be regarded as within the class of intoxicating liquors whose sale is prohibited or regulated by law. But when intoxicating drinks, intended to be sold and used as a beverage, are, by some tincture or preparation, slightly disguised so as to have to some extent the taste, flavor, or appearance of medicines or bitters, when in fact they are really meant to be sold and used as intoxicating drinks, such mixtures, however disguised, are within the prohibition of the law. Russell v. Sloan (1861) 33 Vt. 656. So the purpose of the Vermont statute (Vt. Stat. 4460), prohibiting the sale of "spirituous or intoxicating liquor, or mixed liquor of which a part is spirituous or intoxicating," is to prevent the sale of those liquors as a beverage commonly known as and called intoxicating, and to restrain intemperance; and it is a reasonable view that where a medicine, or other preparation containing enough alcohol to make a man drunk, is sold and bought for that purpose, it is, by the act of the parties, given
status with intoxicating liquors. Hence, when one of the preparations made for medicinal, culinary, and other purposes, containing a large per cent of alcohol, but not made for a beverage, is sold for the purpose of intoxication or the seller has reasonable cause to believe it is obtained for that purpose, the question is whether the sale is not in contravention of the statute; whether the parties, by their voluntary act, do not take the preparation out of its legitimate use, and place it in the list of intoxicating liquors. State v. Kezer (1901) 74 Vt. 50, 52 Atl. 116.
arations, fluid extracts, and toilet articles of which alcohol is the solvent principle, even though they contain more than 1 per cent of alcohol. The act is not intended to effect any change of the law in this respect, and State v. Kezer (Vt.) supra, is still applicable, as regards the purpose of the keeping or sale. State v. Krinski (1905) 78 Vt. 162, 62 Atl. 37. In this case the court said: "The respondent submitted several requests as to what constitutes a beverage, and excepted to the court's refusal to comply therewith, and to its charge upon that subject; and now argues that the court erred in saying: 'If this preparation
And it has been held that it is not the manifest purpose of a later statute (Act of 1902, No. 90, § 21; Pub. Stat. 1906, § 5101), providing 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, to exclude from the term "intoxicating liquor," all medicinal prep
is a beverage that is capable of producing intoxication, and may be used for that purpose, then it is prohibited.' But this sentence must be considered in connection with other parts of the charge. The court first took up the question whether this Jamaica ginger was a beverage within the meaning of the law. And in considering this question, after referring to the evidence in respect to its being used as a beverage, the court said, in substance, that the law did not mean that it must be classed among liquors that are ordinarily used as beverages, but that it is sufficient if the liquid is one that can practically be used as a beverage; and be drunk for the purpose of intoxication; but if the preparation was a beverage capable of producing intoxication, and one that could be used for that purpose, then it fell within the list of intoxicating liquors, and the sale or keeping for sale was prohibited. The evident meaning of this is that a preparation of this kind may, in some circumstances, be classed with intoxicating liquors, and so come within the prohibition, although not ordinarily used as a beverage; and the remainder of the charge makes it certain that it must have been so understood by the jury. For the court then proceeds to consider the purpose for which this article was kept; and states the claim of the respondent that he kept it to sell for medicinal purposes, and not to sell as a beverage; and declares it to be the leading question 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. 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 fluid 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 of a drug by the effect following its administration. Negative testimony of this kind may often be very weak and inconclusive, because of the comparison involved in determining the relative facility with which different persons may or may not become intoxicated or drunk. But we cannot say what would have been the effect of this evidence upon the mind of the judge, who was substituted for the jury as the trier of the facts of the cause. We decide nothing more than the admissibility of this evidence, leaving to the county court itself to decide what shall be its weight or credibility."
Under the Texas law making the sale of spirituous, vinous, or malt li quors or medicated bitters without procuring a license therefor a crime, it has been held that if a person pursued the business or occupation of selling brandy cherries or brandy peaches, and in the bottles in which the same were contained were not merely cherries or peaches preserved with the use of a little spirituous liquor to give them a flavor, but with the peaches or cherries was contained spirituous liquor that could be drunk as a beverage, and that would intoxicate, he was amenable to the law. Petteway v. State (1896) 36 Tex. Crim. Rep. 97, 35 S. W. 646. H. D. B.
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.]
change of contract.
Headnotes 1 and 2 by TAYLOR, C.
quent contract by which certain services were not to be paid for under the original contract, was a question for