« 이전계속 »
other ingredients, it is not within the may produce intoxication. statute.' 'If the intoxicating liquor the compound or preparation be such remain as a distinctive force in the that the distinctive character and efcompound, and such compound is rea- fects of intoxicating liquors are gone, sonably liable to be used as an in- and its use as a beverage is rendered toxicating beverage, it is within the undesirable or practically impossible statute, and this, though it contain by reason of the other ingredients, many other ingredients, and ingre- and the liquor is used merely as a vedients of an independent and benefi- hicle for or preservation of the other cial force in counteracting disease or ingredients, or to extract their virstrengthening the system.' Intoxicat- tues and hold them in solution, the ing-Liquor Cases (1881) 25 Kan. 751. article will not be within the prohibiOur Local Option Statute was de- tion of the statute, although its use signed to prohibit the sale of all intox- may produce intoxication. On the icating beverages in those counties other hand, if the liquor is the prewhich adopted its provisions in the dominant ingredient, and sufficiently manner prescribed by the statute. It retains its intoxicating qualities to renwas not intended that the people were der the mixture reasonably susceptible to be deprived of the remedial benefits of use as a beverage, it is within the of alcohol as a constituent element of prohibition of the statute. The laws medicinal concoction; neither was it cannot be evaded by disguising intoxintended that by a combination of icating liquors sold as a beverage with medicinal ingredients alcohol or in- some tincture or preparation which toxicating liquor could be sold as a will give to the liquor, to some extent, beverage. The test applied in the the flavor or appearance of medicine, Kansas case from which we have or by mixing with the liquor drugs, quoted has been approved by the barks, or seeds which have medicinal courts in many of our sister states. qualities.' . . . If this was a med... The justice of the test seems ical compound with only sufficient apparent, and is supported by reason amount of gin included to preserve it, and authority."
or to extract the properties from the In Pearce v. State (1905) 48 Tex. ingredients, and was not usually sold Crim. Rep. 353, 88 S. W. 234, 13 Ann. as a beverage, but as a medicine, it Cas. 636, wherein the question was would not be violative of the statute whether the sale of a preparation to sell it, and the jury should have called “Kidney Specific" was a viola- been given some criterion by which tion of the Local Option Law, in that this question, which is the crucial the liquor was intoxicating liquor, the point in the case, could be decided by court said: “The rule in regard to them.” The court also held that the matters of this sort is well stated in following special charges should vol. 17, Am. & Eng. Enc. Law, 2d ed. have been given: “You are further 204. 'It has been held that whatever charged, as a part of the law of this is generally and popularly known as case, if you find the liquor sold was a medicine or an article for the toilet, medical preparation, and was not an recognized and the formula of its intoxicating liquor when drank in such preparation prescribed by the United quantities as
quantities as could be practically States Dispensatory or like standard drank, you will find the defendant not authority, and not among the liquors guilty." And again: "You are further ordinarily used as intoxicating bever- charged, as a part of the law of this ages, such as tincture of, gentian, par- case, that if the liquor sold contained egoric, bay rum, cologne, etc., is not various drugs as ingredients, and that an intoxicating liquor within the a person taking same in such quantimeaning of the statutes regulating and ties as could be practically drank prohibiting the traffic in intoxicating would be influenced by the same, or liquors; and the courts may so de- made drunk, but that such effect or clare as a matter of law, notwithstand- drunk produced by the preparation ing such articles contain alcohol and was the result of the drugs so contained in same, and was not the result produce intoxication, is intoxicating of any intoxicating liquor so contained liquor. If its composition is such that in said preparation, you will find the it is practicable to commonly and ordefendant not guilty.”
dinarily drink it as a beverage, and to In Arbuthnot v. State (1909) 56 drink it in such quantities as to proTex. Crim. Rep. 517, 120 S. W. 478, the duce intoxication, it is intoxicating defendant requested the court to liquor." Heintz v. Le Page (1905) 100 charge the jury as follows: “You are Me, 542, 62 Atl. 605. charged as a part of the law in this In order to determine whether the case, if you find from the evidence Massachusetts statute forbidding the that the liquor sold was popularly sale, without due authority, of spirknown as a medicine, recognized as ituous or intoxicating liquors, applies such, and the formula of its prepara- to a sale, the true test is to inquire tion prescribed in the United States whether the article sold is in reality Dispensary, or like standard authority, an intoxicating liquor. If it is, the and not among the liquors ordinarily sale is illegal, although it is sold to be used as intoxicating beverages, it is used as a medicine, or it is attempted not an intoxicating liquor. And if to disguise it under the name of a medyou find that the preparation be such icine, or it is a mixture of liquor and as that the distinctive character and other ingredients. But if the article effects of intoxicating liquors are gone sold cannot be used as an intoxicatand its use as a beverage is rendered ing drink, it is not within the prohibiundesirable by reason of other ingre- tion of the statute, although it condients, and the liquor is used merely tains as one of its ingredients some as a vehicle for the preserving of spirituous liquor. Com. v. Ramsdell the other ingredients, or to extract (1881) 130 Mass. 68. their virtues and hold them in solu- In James v. State (1886) 21 Tex. tion, although it produce intoxication, App. 353, 17 S. W. 422, it was held that the article will not be in prohibition medicated bitters producing intoxicaof the statutes, and you will find the tion were intoxicating liquors, within defendant not guilty.” The court said, the meaning of that term as used in however, in holding that the giving of the state Constitution. the charge was properly refused: "The
2. Under Kansas statute. Pearce Case (Tex.) supra, seems to suggest that this would probably be a
The Kansas Liquor Law of 1881 correct charge, but a careful reading
(Laws 1881, chap. 128, § 1) prohibited of said decision will show that it was
the manufacture or sale of any spirnot intended to lay down such a prop
ituous, malt, vinous, fermented, or othosition. Clearly, the sheer fact that a
er intoxicating liquors. The tenth formula to prepare a certain compound
section provided as follows: "All libe found in the United States Dis- quors mentioned in § 1 of this act, pensary or like standard authority
and all other liquors or mixtures would not per se make it a nonintox
thereof, by whatever name called, that icating liquor, nor would the fact, as
will produce intoxication, shall be conwe understand the decisions of this
sidered and held to be intoxicating court, that the distinctive character liquors within the meaning of this and effects of intoxicating liquors are
act.” This law was interpreted in the gone, render it any the less an intox
Intoxicating-Liquor Cases (1881) 25 icating liquor when drank in such
Kan. 751, 37 Am. Rep. 284, wherein the quantities as may be practically taken court said: “This section, whose laninto the human stomach."
guage is unfortunately chosen, is the "Any liquor containing alcohol, one which has provoked this litigation, which is based on such other ingre
and has tended to create so much prejdients, or by reason of the absence of udice against the statute; for its letcertain ingredients, that it may be ter reaches to preparations which no drank by an ordinary person as a bev- man can believe were within the inerage, and in such quantities as to tent of the legislature, and any interference with whose sale, if within pensatory and other similar standard the power of the legislature, would be authorities; the formulæ for their felt by everyone to be unnecessary and preparation are there given; their unreasonable. Alcohol is the intox- nized and known by their names as icating principle, the basis of all in- uses and character are as well recogtoxicating drinks. Whatever contains those of a horse, a spade, or an arithalcohol will, if a sufficient quantity be metic. The possibility of a different taken, produce intoxication. Hence, and occasional use does not change whatever liquor contains alcohol is their recognized and established charwithin the statute. So reads its letter. acter. A particular spade may be But, when we come to inquire as to the fixed up for a parlor ornament, but liquors which contain alcohol, we find the spade does not belong there. So a lengthy list of fluids which are never essence of lemon may contain enough used as beverages. Cologne, extract alcohol to produce intoxication,-more of lemon, bay rum, paregoric, tincture alcohol proportionately than many of gentian, and many other medicinal kinds of wine or beer. It is possible preparations contain alcohol, and all that a man may get drunk upon it, but will produce intoxication. They are it is no intoxicating liquor. Bay rum, seldom used as a beverage, and yet cologne, paregoric, tinctures generalthey may be. Intoxication produced ly, all contain alcohol, but in no fair by drinking bay rum has been known. or reasonable sense are they intoxYet few drink it. Its uses are for the icating liquors or mixtures thereof. toilet. But three of the cases before The third class embraces compoundsus are prosecutions for the sale of bay preparations in which the alcoholic rum, essence of lemon, and tincture of stimulant is present, which are not of gentian, respectively. These prepara- established name and character, which tions contain alcohol, and will each, are not found in the United States it is charged, produce intoxication. If Dispensatory, or other like standard the statute includes such articles, authorities, and which may be purely many of them are absolutely and whol- medicinal in their purpose and effect, ly shut out from sale. The excepted or mere substitutes for the usual inpurposes in the statute are ‘medical, toxicating beverages. If not intoxscientific, and mechanical.' But toilet icating liquors, they may be 'mixtures and culinary purposes are strictly in- thereof' within the scope of the statcluded within no one of the three. ute. . Here belong many of the patent
But the legislature never in- medicines,—the bitters, cordials, and tended such a sweeping prohibition. tonics of the day. Here also are such The use of intoxicating liquors as a compounds as that charged in one of beverage was the evil, and the statute the informations before us,-a commust be read in the light thereof. It pound of whisky, tolu, and wild intended to put a stop to such use, and cherry. Now, in reference to these limit the use to the necessities of med- classes, we think these rules may be icine. Now, the cases before us group laid down: The first class is within themselves into three classes; and the and the second without the statute; same division is far-reaching and of and the court, as matter of law, may general application. The first em- declare. It is unnecessary, in braces what are generally and pop- charging the sale of whisky or branularly known as intoxicating liquors, dy, etc., to allege that it will produce unmixed with any other substances. intoxication; nor will it bring the sale Thus, in one case the sale of brandy of essence of lemon within the statute is charged. The second includes ar- to allege that such essence will proticles equally well known, standard duce intoxication. The courts will articles, and which, while containing take judicial notice of the uses and alcohol, are never classed as intoxicat- character of these articles. You need ing beverages. Their uses are culi- not prove what bread is, or for what nary, medical, or for the toilet. They purposes it is used. No more need are named in the United States Dis- you in respect to whisky or gin on the
one hand, or cologne or bay rum on State v. Coulter (1888) 40 Kan. 87, 19 the other. They are all articles of es- Pac. 388; State v. Raynolds (1896) 5 tablished name and character. In ref- Kan. App. 515, 47 Pac. 573. But the erence to the third class, the question Liquor Law of 1909 (Laws 1909, chap. is one of fact, and must be referred 164, § 1), which likewise prohibits the to jury. If the compound or prepara- manufacture or sale of any spirituous, tion be such that the distinctive char- malt, vinous, fermented, or other inacter and effect of intoxicating liquor toxicating liquors, contains a section are gone, that its use as an intoxicat- reading as follows: “All liquors mening beverage is practically impossible tioned in § 1 of this act shall be conby reason of the other ingredients, it strued and held to be intoxicating is not within the statute. The mere liquors within the meaning of this presence of alcohol does not necessa- act." In State v. Miller (1914) 92 rily bring the article within the pro- Kan. 994, L.R.A.1917F, 238, 142 Pac. hibition. The influence of the alcohol 979, Ann. Cas. 1916B, 365, it was held may be counteracted by the other el- that this statute was intended to ements, and the compound be strictly change the law, with the result that and fairly only a medicine. On the the classification established under other hand, if the intoxicating liquor the Law of 1881, and the decision in remain as a distinctive force in the the Intoxicating-Liquor Cases (Kan.) compound, and such compound is rea
supra, were abrogated. Liquors besonably liable to be used as an intox- longing to the first class there deicating beverage, it is within the stat- scribed, such as whisky, brandy, gin, ute; and this, though it contain many wine, beer, and the like, were still to other ingredients, and ingredients of be construed as intoxicating, the court an independent and beneficial force in held. All other liquors belonged to counteracting disease or strengthen- the third class, and the rule or test ing the system. Intoxicating liquors, was stated as follows: "If the liquor or mixtures thereof: this, reasonably be such that the distinctive character construed, means liquors which will and effect of intoxicating liquor be intoxicate, and which are commonly absent, it is outside the statute; if the used as beverages for such purposes, distinctive character and effect of inand also any mixtures of such liquors toxicating liquor be present, it is withas, retaining their intoxicating qual- in the statute. The fact is to be deities, it may fairly be presumed may be termined by the jury, or by the court used as a beverage, and become a sub- when sitting as a trier of the facts. stitute for the ordinary intoxicating If in any case the liquor sold or kept drinks. Whether any particular com
for sale be identified by the proof as pound or preparation of this class is plain whisky or brandy or gin or wine then within or without the statute is or beer, or other spirituous, malt, via question of fact, to be established nous, or fermented liquor of the kind by the testimony and determined by a specifically mentioned in the statute, jury. The courts may not say as a mat
it shall be construed and held to be ter of law that the presence of a cer
intoxicating. As to such liquors, the tain per cent of alcohol brings the com- statute simply declares what the pound within the prohibition, or that courts and everybody else know. If any particular ingredient does or does the liquor sold or kept for sale be not not destroy the intoxicating influence
so identified, but belongs by name or of the alcohol, or prevent it from qualification to some other class, or be ever becoming an intoxicating bever- unclassified, its intoxicating characage. Of course, the larger the per cent ter must be submitted to the jury, or to of alcohol and the more potent the oth- the court when trying the facts, as a er ingredients, the more probably does question of fact. In such cases the it fall within or without the statute; evidence may relate to its nature and but in each case the question is one of constituent elements, its ordinary use, fact, and to be settled as other ques- its susceptibility to use as an intoxtions of fact.” See, to the same effect, icant, the extent of such use, and all
other matters which in the particular all alcoholic beverages within the defiinstance will aid in determining the nition of “liquor," as construed in that issue."
statute, and to relieve the court from 3. Under Missouri statute.
determining as a fact whether the liThe term, "intoxicating liquor,” as
quor sold or given away was intoxi
cating used in the Missouri Prohibition Stat
That the liquor is intoxicating is, utes—the Dramshop Law (Rev. Stat.
therefore, the test under the present 1855, chap. 57, § 31; Rev. Stat. 1909,
statute. Clement v. Dwight (1910) § 7222) and the Local Option Act (Rev. Stat. 1909, $ 7243)-embraces
137 App. Div. 389, 121 N. Y. Supp. 788. any beverage containing alcohol in
Still, the question as to whether a li
quor comes within the statute deany quantity whatever. State Martin (1910) 230 Mo. 1, 139 Am. St.
pends on, and so one of the tests ap
plied to any mixture for the purpose of Rep. 628, 129 S. W. 931; State v. Burk
ascertaining whether it is liquor with(1911) 234 Mo. 574, 137 S. W. 969, af
in the meaning of the Liquor Tax Law firming (1910) 151 Mo. App. 188, 131 S. W. 883; State v. Hanson (1911) 234
is, the quantity of alcohol it contains.
Ibid. So, when there is found in any Mo. 583, 137 S. W. 968; State v. Gamma (1910) 149 Mo. App. 694, 129 S. W.
preparation 27 per cent of alcohol and 734; State v. Wills (1911) 154 Mo.
73 per cent of water, it is clear that App. 605, 136 S. W. 25. Hence, in a
it must be a liquor within the act, unprosecution for violation of the law by
less its effect is destroyed or largely the sale of medicinal preparations, as
neutralized by its mixture with other Peruvian strengthening elixir, Har- ingredients. Ibid. ter's Wild Cherry Bitters, and Wauka
6. Under North Dakota statute. ska Cream Ale, it is not necessary for the state to show that the liquid or
The North Dakota statute (Rev.
Codes 1899, 8 7598) provides as folcomposition in question was sold as a beverage. Nor is it any defense to
lows: "All spirituous, malt, vinous, show that it was sold in good faith for
fermented, or other intoxicating limedicinal purposes. The only issues
quors or mixtures thereof, by whatever that can be raised are the questions
name called, that will produce intoxiwhether or not the liquid sold con
cation, or any liquor or liquids which tained alcohol, and was of such char
are made, sold or offered for sale as a acter that it could be used as a bever
beverage and which shall contain coage, or that it contained alcohol, and
culus indicus, copperas, opium, caywas used as a beverage. State v. Wills
enne pepper, picric acid, Indian hemp, (Mo.) supra.
strychnine, tobacco, darnel seed, ex
tract of logwood, salts of zinc, copper 4. Under New York statute.
or lead, alum or any of its compounds, The New York statute (Liquor Lax methyl alcohol or derivations, amyl Law, & 2; 33 McKinney, Consol. Laws, alcohol or any extract or compound of p. 11) provides as follows: "The term any of the above ingredients, shall be ‘liquors,' as used in this chapter, in- held to be intoxicating liquors within cludes and means all distilled or the meaning of this chapter.” Thererectified spirits, wine, fermented, and under, in State v. Virgo (1905) 14 malt liquors." In People v. Cox N. D. 293, 103 N. W. 610, the court held (1905) 106 App. Div. 299, 94 N. Y. that the statute only prohibited the Supp. 526, affirming (1904) 45 Misc. sale of intoxicating liquors; that was, 311, 92 N. Y. Supp. 125, the court liquors that would produce intoxicadeclared that it seemed to have been tion. The court held that the term, the deliberate intention and pur- "intoxicating liquors," included spirpose of the legislature in passing the ituous, malt, vinous, fermented, or Liquor Tax Law, to omit therefrom the other intoxicating mixtures thereof words, "strong," "spirituous," and "in- “that will produce intoxication;" also toxicating," and to include within the all liquors or liquids, sold as a beverprohibitive parts thereof the traffic in age, which were compounded from the