King v. State , 58 Miss. 737 ( 1881 )

Cooper, J.,

delivered the opinion of the court.

The appellants were indicted in the Circuit Court of Grenada County for unlawfully selling vinous and spirituous liquors in less quantities than one gallon.

The evidence showed that the defendants sold, in quantities of from a pint to a quart, a compound called “ Home Bitters,” which the defendants claimed was a proprietary medicine, which, though containing alcohol, it was lawful for them to sell without obtaining license to retail, under the provisions of the Code governing the retailing of vinous and spirituous liquors.

The evidence introduced by the defendants themselves shows that the compound sold contained thirty per cent of alcohol, and that the other ingredients were water and various barks, and the peelings and seeds of trees, fruit, and herbs ; that the compound was sold as any other merchandise, to be devoted by the purchaser to such purposes as he desired, and without inquiry by the seller as to the purpose for which it was bought. The evidence for the State showed that it was purchased by the State’s witnesses because of the alcohol it contained, and used by them for the purpose of producing intoxication.

The court charged the jury in effect, for the State, 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 for the defendants it instructed the jury that if they believed the defendants sold the compound in good faith as a medicine, and not as a beverage, they ought to be acquitted, although it contained vinous or spirituous liquors sufficient to intoxicate. And these instructions, we think, fairly presented the law of the case. 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 bought, and its effect upon the system, are material facts from which may be inferred the intention of the seller. If the other ingredieuts 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 pretences 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 prosecution.

The instructions refused by the court on the application of the defendants were substantially given in other instructions, and it was not the right of the defendants to propouud the same propositions in different, phraseology. The law applicable to the defence set up had been correctly and sufficiently stated, and the court did not err in refusing to charge in other language the same ideas.

The judgment is affirmed.