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any alcoholic, spirituous, vinous, or malt liquors, intoxicating bitters or beverages, or other liquors or beverages by whatsoever name called, which if drunk to excess will produce intoxication." Thereunder, in Marks V. State (1909) 159 Ala. 71, 133 Am. St. Rep. 20, 48 So. 864, it was held that the clause, "which, if drunk to excess, will produce intoxication," qualified or referred only to the clause, "or other liquors or beverages," which immediately preceded it, and was intended to include any and all other classes or kinds of liquors or beverages not embraced in the first five classes named. The court held that the statute did not embrace every liquor or beverage which contained a trace of alcohol or maltose, or even that contained one or both in appreciable quantities, if incapable of being used as an intoxicating beverage. On the other hand, the court held, it embraced all articles which contained alcohol or malt in such proportions or form or state, which were or might be used as an intoxicating beverage, no matter what it was called, or for what other purpose it was intended or was used, or for which it might be used.
The words, "intoxicating liquors," or "alcoholic and spirituous liquors," as used in the Georgia Prohibition Statute, include liquors intended for use as a beverage, or capable of being so used, containing alcohol, obtained either by fermentation or distillation, or both, in such proportion as would produce intoxication when drunk to excess. Chapman v. State (1896) 100 Ga. 311, 27 S. E. 789; Colwell v. State (1900) 112 Ga. 75, 37 S. E. 129; Mason v. State (1907) 1 Ga. App. 534, 58 S. E. 139; Roberts v. State (1908) 4 Ga. App. 207, 60 S. E. 1082; Stoner v. State (1909) 5 Ga. App. 716, 63 S. E. 602. So, the Georgia Prohibition Law (Acts 1907, p. 81), which has for its purpose the suppression of the evils of intemperance, cannot be violated by selling or keeping on hand at a place of business liquids which cannot be used as a beverage; for that which cannot be drunk cannot produce drunkenness, and liquids which cannot be used as beverages do not fall
within either the letter or the spirit of the act. But the phrase, "alcoholic or spirituous liquors," in this law, includes only those liquors which contain a sufficient quantity of alcohol (the intoxicating element of all liquors) to produce intoxication when drunk to excess, and necessarily imports intoxicating liquors. And liquors are neither alcoholic nor spirituous unless they are also intoxicating. Roberts v. State (1908) 4 Ga. App. 207, 60 S. E. 1082. "It seems to us absurd and utterly unreasonable to say that a trace of alcohol in a liquid, not enough to intoxicate, or a liquid not in proper form to be used as a beverage, fits the description given in this statute of 'spirituous and alcoholic liquors.'
. This construction of the law would call a liquid that contained an ounce of whisky in a barrel of water, and a teaspoonful of sugar, a whisky toddy, or an ounce of brandy in a barrel of milk, a milk punch. This construction would prohibit the sale of what are commonly known as soft drinks, that contain only an appreciable amount of alcohol, not enough to produce intoxication, however much is drank, as a beverage, and would banish from the drug store all drugs and medicines and all culinary and toilet articles which contain any alcohol, even when it is well known that such things are not only not in proper form to be used as beverages, but, if so used, would cause death." Roberts v. State (Ga.) supra.
A Mississippi statute (Code of 1906, § 1746) prohibits the sale or keeping for sale without a license of "any vi nous, alcoholic, malt, intoxicating, or spirituous liquors, or intoxicating bitters, or other drinks, which if drunk to excess will produce intoxication." Thereunder, in Fuller v. Jackson (1910) 97 Miss. 237, 30 L.R.A. (N.S.) 1078, 52 So. 873, the court held that the language, "which, if drunk to excess, will produce intoxication," qualified the terms "vinous, alcoholic, malt, intoxicating, or spirituous liquors, or intoxicating bitters, or other drinks." Hence, the court held, the sale of alcoholic liquors was prohibited, provided they contained sufficient alcohol to
intoxicate when drunk to excess. In Bacot v. State (1908) 94 Miss. 225, 21 L.R.A. (N.S.) 524, 136 Am. St. Rep. 574, 48 So. 228, the court said: "Aside from the well-known exception in the case of pharmaceutical preparations, the law punishes the fact of selling intoxicants, regardless of the intent of the seller. He must see to it that the beverages he dispenses are nonalcoholic to the extent that intoxication in any degree will not be produced by even excessive consumption of the beverage."
2. Under New York statute.
The New York statute (Liquor Tax 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 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 a liquor is intoxicating is, therefore, no longer the test under the present statute. Clement v. Dwight (1910) 137 App. Div. 389, 121 N. Y. Supp. 788; People v. Palluch (1918) 182 App. Div. 603, 169 N. Y. Supp. 917, affirmed without opinion in (1918) 224 N. Y. 648, 121 N. E. 884. 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.
Under a former statute (Act of 1857, chap. 628), regulating the sale of intoxicating liquors, and making it 4 A.L.R.-73.
an offense to sell strong or spirituous liquors in quantities less than 5 gallons without a license therefor, it was held in Board of Excise v. Taylor (1860) 21 N. Y. 173, that the liquors, the traffic in which was to be thus regulated, were such as were known to be capable, when drank, of producing, and which generally resulted in, partial or total intoxication. The court stated that but one safe and sensible line of distinction could be drawn between the different kinds of liquor containing alcohol, in order to determine on which of them the statute was intended to operate; and that was between those which were capable of causing intoxication, and those containing so small a percentage of alcohol that the human stomach could not contain sufficient of the liquor to produce that effect.
In People v. Schewe (1883) 29 Hun (N. Y.) 122, the court said (after quoting the foregoing rule): "Of course we are not unmindful of the fact that different liquors and different quantities will produce different effects upon different persons, and that the effect on persons may depend upon their habits, their health, their age and constitutions." This rule was also quoted and followed in Prussia v. Guenther (1884) 16 Abb. N. C. (N. Y.) 230.
The presence of alcohol in so slight a quantity as not to unduly excite the human system will not constitute an intoxicating liquor. People v. Zeiger (1865) 6 Park. Crim. Rep. (N. Y.) 355.
The various kinds of domestic beers, such as spruce beer, spring beer, ginger beer, molasses beer, etc., are, therefore, never considered as strong liquors or intoxicating liquors, though they do contain a certain percentage of alcohol, either because it was supposed that the human stomach had not capacity to contain a sufficient quantity of those kinds of beer, if they were properly made, unduly or injuriously. to excite the person who used them as a beverage, or for the reason that those who were in the habit of using them never got intoxicated by such use. Nevin v. Ladue (1846) 3 Denio (N. Y.) 437. See also Board of Excise v. Taylor (N. Y.) supra.
But as to lager beer, the circumstance of intoxication following its use in very rare exceptional cases would be insufficient to characterize it as an inebriating drink; for if the question whether the sale without license violated the statute was made to depend on that, then it would follow that what should be legally declared a criminal offense in one part of the state would be an innocent act in others, depending entirely on the local habitation of the person or persons capable of being thus affected. Under such a construction of the law, persons charged with its violation could only be convicted when proof was made that actual intoxication of some one person had been produced by imbibing the liquor in question; and if no such person could be found when the prosecution was carried on, an acquittal would necessarily take place. While in other localities, where intoxication could be shown, even in one instance, to have followed the use of lager beer, all persons selling it without license, in the quantities mentioned in the statute, would as surely be convicted. On the contrary, the general intent affecting this, as well as all other laws made to define and prohibit criminal offenses, is that the offense shall be so clearly described that the public will encounter no serious difficulty in discovering its distinguishing attributes. In this view of the statute, lager beer falls within the term, "intoxicating liquors," if the use of it is ordinarily or commonly attended with entire or partial intoxication; if the use is not ordinarily or commonly attended with this effect, the sale of it without license is not embraced within the prohibition of the statute. It is not necessary, in order to constitute an offense under this statute, that persons ordinarily or commonly using the article should become intoxicated by means of the effects produced by it; for that is not the effect of using many other liquors conceded and assumed to be intoxicating. Whether intoxicating or not must depend very much on the quantity used, and the sensibility of the stomach of the person using it. It is sufficient to constitute an offense under this statute that an ordinary
effect found to follow the use of lager beer is entire or partial intoxication. If it frequently or ordinarily is attended with that result, then all the consequences are produced by it which render it a proper subject for legislative regulation. People v. Zeiger (N. Y.) supra.
So, with respect to beer, it has been held that it must be strong liquor, that is, strong enough with the inebriating principle or element, whether obtained by distillation or fermentation, to produce intoxication. Board of Excise v. Taylor (1860) 21 N. Y. 173; People v. Hart (1862) 24 How. Pr. (N. Y.) 289. II. Medicinal compounds.
a. Use as beverage.
The test for determining what medicinal compounds or preparations may be considered intoxicating, within the meaning of the term "intoxicating liquors" as used in the Prohibition Laws adopted in a majority of the jurisdictions, is as to the capability of the article in question for use as a beverage.
United States.-United States v. Stubblefield (1889) 40 Fed. 454.
Alabama.-Carl v. State (1888) 87 Ala. 17, 4 L.R.A. 380, 6 So. 118, 8 Am. Crim. Rep. 404, subsequent appeal in (1889) 89 Ala. 93, 8 So. 156; Compton v. State (1891) 95 Ala. 25, 11 So. 69.
Georgia.-Chapman v. State (1896) 100 Ga. 311, 27 S. E. 789; Colwell v. State (1900) 112 Ga. 75, 37 S. E. 129; Bradley v. State (1904) 121 Ga. 201, 48 S. E. 981; Mason v. State (1907) 1 Ga. App. 534, 58 S. E. 139; Roberts v. State (1908) 4 Ga. App. 207, 60 S. E. 1082.
Iowa.-State v. Laffer (1874) 38 Iowa, 422; Berner v. McHenry (1915) 169 Iowa, 483, 151 N. W. 450.
Maine. Heintz v. Le Page (1905) 100 Me. 542, 62 Atl. 605; STATE v. INTOXICATING LIQUORS & VESSELS, ante, 1128.
Massachusetts.-Com. v. Ramsdell (1881) 130 Mass. 68.
Texas.-Pearce v. State (1905) 48 Tex. Crim. Rep. 352, 88 S. W. 234, 13 Ann. Cas. 636.
Whether a compound, consisting of
drugs, barks, or other medicinal substances, and spirituous liquor, is within the prohibition of the statute, depends on the question whether the article sold is, in reality, an intoxicating liquor. If the liquor and other ingredients are used and mixed in such manner and proportions as to counteract the intoxicating force and character of the liquor, fairly constituting a medicine, and rendering its use as a beverage practically impossible, it does not come within the statute. On the other hand, if the liquor is the predominant element, or sufficiently retains its intoxicating qualities so as to render the mixture reasonably susceptible of use as a beverage, or of substitution for the ordinary intoxicating drinks, it is within the statutory prohibition. Carl v. State and Compton v. State (Ala.) supra.
Thus, in Compton v. State (Ala.) supra, wherein, under an indictment charging the sale of spirituous, vinous, or malt liquors, it appeared that the real inquiry was whether the tonic or cordial sold by the defendant contained sufficient spirituous, vinous, or malt liquors to make the same an “intoxicating mixture, compound, or bitters," the court said: "The rule for determining that question has been declared by this court as follows: 'If the liquors and other ingredients are used and mixed in such manner and proportions as to counteract the intoxicating force and character of the liquor, fairly constituting a medicine, and rendering its use as a beverage practically impossible, it does not come within the statute. On the other hand, if the liquor is the predominant element, or sufficiently retains its intoxicating qualities so as to render the mixture reasonably susceptible of use as a beverage, or the substitution for the ordinary intoxicating drinks, it is within the statutory prohibition.' Carl v. State (1889) 89 Ala. 93, 8 So. 156."
In Chapman v. State (Ga.) supra, it was held that a statute prohibiting the sale of "spirituous, malt, or intoxicating liquors," without a license, included within its meaning a medicinal preparation capable of use as a bev
erage, which contained alcohol in such
In United States v. Stubblefield (Fed.) supra, in holding that preparations known as "lemon ginger" and "empire tonic bitters" should be classed as medicinal preparations, the court said: "The fact that men with a strong appetite for drink may occasionally buy one of these preparations, and by an immoderate use of the same become drunk, is not an adequate reason for classifying them as distilled spirits. It is safe to assume that alcohol enters into the preparation of some other compounds that no one would think of classifying as distilled spirits, in such quantity that a man might be made drunk by imbibing them too freely. The fact, therefore, that a mixture possesses so much alcohol that persons may become intoxicated by drinking such a quantity as may be drunk without imperiling life, cannot be accepted as the sole test by which to determine if the mixture should be classed as distilled spirits, and dealers therein as liquor dealers. If a preparation is not intended as a beverage, but is put up in good faith as a medicinal preparation, and is only advertised and sold as such, and there are reasonable grounds to believe that it possesses curative qualities, and no more spirits are used in the preparation than are reasonably necessary to extract and hold in solution the medicinal properties of the various drugs employed, such preparation is medicinal, and does not lose its character as such, although it is intoxicating when used to excess."
The true inquiry is whether the liquor used is necessary to extract and preserve the medicinal properties of the other ingredients, and its distinctive intoxicating character is so counteracted, or greatly impaired, that its reasonable and ordinary use will not intoxicate,-whether it is, in reality, a medicine. Carl v. State (Ala.) supra.
If the compound would nauseate before it would intoxicate, it is not desir
able, and is not reasonably susceptible of being used as a beverage, or as a substitute for the ordinary intoxicating drinks. Ibid.
In Geer Drug Co. v. Atlantic Coast Line R. Co. (1916) 104 S. C. 207, 88 S. E. 448, Ann. Cas. 1917C, 908, it was held that a liquor which, owing to its composition, would not intoxicate any person by its immoderate use, for the reason that a person so using it would become sick long before he became intoxicated, was not an "intoxicating liquor" within the statute (Acts 1915, p. 140, 1) prohibiting the delivery of any intoxicating liquors within the state.
So, testimony offered to prove, with respect to a mixture of quinine and whisky, that "no reasonable person would drink it as a beverage, or would drink sufficient of it to become intoxicated upon it," would present no proper test. People v. Sharrer (1910) 164 Mich. 267, 127 N. W. 901, 130 N. W. 693.
It should not be understood, however, that a preparation is considered intoxicating, in the estimation of the statute, because it may intoxicate if used in unreasonable and excessive quantities. The excessive and immoderate use of any preparation, in which alcohol is used in sufficient quantity to preserve the other ingredients, may intoxicate; but the mixture does not fall under the ban of the statute because spirituous liquor is present. Carl v. State (1889) 89 Ala. 93, 8 So. 156.
Medicinal, toilet, or culinary preparations, recognized as such by standard authorities, and generally used as medicines, and not reasonably capable of use as intoxicating beverages, are not to be regarded as within the meaning of the expression, "intoxicating liquors," although such articles are liquid, contain alcohol, and may produce intoxication, Bradley v. State (1904) 121 Ga. 201, 48 S. E. 981; Mason v. State (1907) 1 Ga. App. 534, 58 S. E. 139; Roberts v. State (1908) 4 Ga. App. 207, 60 S. E. 1082.
In State v. Laffer (1874) 38 Iowa, 422, it appeared that the instructions given left it to the jury to find wheth
er in fact its distinctive character as intoxicating liquor was in fact changed into that of a medicine, or whether certain roots or tinctures, which had not in fact changed the character of the liquor, had been compounded therewith. The court held that this was the true test, saying: "So long as the liquors retain their character as intoxicating liquors, capable of use as a beverage, notwithstanding other ingredients may have been mixed therewith, they fall under the ban of the law; but when they are so compounded with other substances as to lose the distinctive character of intoxicating liquors, and are no longer desirable for use as a stimulating beverage, and are in fact medicine, then their sale is not prohibited."
An Iowa statute (Code, § 2385) provides that druggists holding permits may sell and dispense intoxicating liquors, not including malt liquors, but forbids the sale of any preparation or compound under any name, form, or device which may be used as a beverage, and which is intoxicating in its character. Thereunder, it has been held that the character of the compound, rather than the good faith of the seller, is the test by which to determine the legality of the sale. State v. Gregory (1900) 110 Iowa, 624, 82 N. W. 335. In other words, if its distinctive character as an intoxicating liquor is so destroyed that it cannot be used as a beverage, and it becomes in fact a medicine that cannot, in reason, be styled or used as an intoxicating drink, its sale is not in violation of law. Berner v. McHenry (1915) 169 Iowa, 483, 151 N. W. 450.
So, in Bradley v. State (Ga.) supra, wherein the question was whether the defendant had sold an intoxicating beverage or a medicine, the court said: "The supreme court of Kansas, construing a statute very similar to ours as applied to a mixture of intoxicating liquors with certain medicinal ingredients, held that 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