State v. Intoxicating Liquors

Decision Date26 July 1922
Citation117 A. 588
PartiesSTATE v. INTOXICATING LIQUORS. Appeals of VINO MEDICAL CO., Inc.
CourtMaine Supreme Court

Exceptions from Superior Court, Androscoggin County, at Law.

Separate proceedings by the State for the condemnation of certain intoxicating liquors, of which the Vino Medical Company, Inc., was claimant. Verdict for the State, and claimant excepts. Exceptions overruled, and judgment rendered for the State.

Argued before CORNISH, C. J., and STEAR, HANSON, PHILBROOK, MORRILL, and WILSON, JJ.

George S. McCarty, of Lewiston, for claimant.

Benjamin L. Berman, of Lewiston, for the State.

MORRILL, J. The facts are stated in the bill of exceptions as follows:

"This was an action in which the Vino Medical Company, Inc., of New York, sought to have returned to it, as owner, some 2,210 bottles of Vino Tonic seized by the deputy sheriffs of Androscoggin county as intoxicating liquor, intended for unlawful sale. Vino Tonic, the alleged intoxicating liquor, contained 18.3 per cent. of alcohol, by volume, according to Mr. Andrews, a state witness. The amount of alcohol in the preparation was not seriously disputed. In addition to the alcohol, an undetermined amount of cascara and aloes were among the remaining ingredients. The claimant contended that the preparation was not an intoxicating beverage under the law. Whether the preparation was an intoxicating beverage or not was practically the only question involved in the hearing."

An expert witness called by the claimant, who had been a druggist since 1894, and was familiar with drugs, their preparation, and their effects upon the human system, was asked the following question:

"In your judgment is it practicable for an ordinary person to commonly and ordinarily drink Vino Tonic as a beverage and in such quantities as to produce intoxication?"

—which question was excluded, and to the exclusion thereof exception was duly and seasonably taken.

Another expert witness, called by the claimant, who had had experience in the analysis of preparations containing alcohol, was familiar by experiments with its effect upon the human system, and particularly familiar with the action upon the human system of cascara and aloes, was asked the following question:

"With your familiarity with those experiments, your knowledge of the effects of alcohol, your knowledge of the drugs cascara and aloes, I will ask you, if, in your judgment, it is practicable for an ordinary person to commonly and ordinarily drink Vino Tonic as a beverage and in such quantities as to produce intoxication?"

The question was excluded, and to the exclusion thereof exception was duly and seasonably taken.

In bis charge to the jury the presiding justice gave the following instruction:

"Here is the bare fact before you for consideration, the bare issue of fact. Under the rules of law that I have given you, was this, in fact, an intoxicating liquor, a liquor containing alcohol, or a sufficient quantity to produce intoxication, and, if containing alcohol of the quantity stated, was it capable of being used for tippling purposes or as a beverage, and was it also capable of being used for such purpose to the extent of producing intoxication? It is not a question of whether ordinary persons that are not drinking persons would find it an agreeable drink or would refuse to use it. It is a question whether any person who wanted to use it, wanted to use it for intoxication, was able to drink it, wanted to use it as a beverage to the extent of intoxication." To this instruction the claimant seasonably excepted.

The entire charge is made a part of the bill of exceptions.

It is apparent that the questions propounded to the witnesses and excluded, and the instructions to which exceptions were taken, were not based upon chapter 235 of the Public Laws of 1919, amending R. S. c. 127, § 21. Prior to the passage of that amendment, the court had held that, as to the liquors enumerated by name in section 21, including cider when kept and deposited with intent to sell the same for tippling purposes or as a beverage, the actual intoxicating quality of the liquor is not an issuable fact. When it appears that a liquor comes within the scope of the forbidden enumeration, its intoxicating character becomes fixed by law, and its nonintoxicating character, as a matter of fact, becomes entirely immaterial with respect to the application of the statute. State v. Prederickson, 101 Me. 37, 03 Atl. 535, 6 L. R. A. (N. S.) 186, 115 Am. St. Rep. 295, 8 Ann. Cas. 48. As to other liquors containing alcohol, not within the enumeration, the intoxicating quality of the liquor is an issuable fact for the determination of a jury. State v. Piche, 98 Me. 348, 56 Atl. 1052.

But the amendment of 1919 changed the phraseology of section 21 to read as follows:

"No person shall at any time, by himself, his clerk, servant or agent, directly or indirectly, sell any intoxicating liquors, of whatever origin; wine, ale, porter, strong beer, lager beer and all other malt liquors, and cider when kept or deposited with intent to sell the same for tippling purposes, or as a beverage, and all distilled spirits, as well as any beverage containing a percentage of alcohol, which by federal enactment, or by decision of the supreme court of the United States, now or hereafter declared, renders a beverage intoxicating, are declared intoxicating within the meaning of this chapter; but this enumeration shall not prevent any other pure or mixed liquors from being considered intoxicating."

This act was approved April 4, 1919. The Eighteenth Amendment to the Constitution of the United States had been proposed to the states by resolve of December 18. 1917, had been ratified by the Legislature of this state, January 8, 1919, and its ratification by the requisite number of states had been proclaimed January 29, 1919.

On October 28, 1919, the Congress enacted the Volstead Act (41 Stat. 305), designed to provide effective enforcement of the Eighteenth Amendment, and saw fit to adopt therein the following definition:

"When used in title II and title III of this act (1) The word 'liquor' of the phrase 'intoxicating liquor' shall be construed to include alcohol, brandy, whisky, rum, gin, beer, ale, porter and wine, and in addition thereto any spirituous, vinous, malt, or fermented liquor, liquids, and compounds, whether medicated, proprietary, patented, or not, and by whatever name called, containing one half of one per centum or more of alcohol by volume which are fit for use for beverage purposes."

It is thus clear that, if the amendment of 1919 is valid, the intoxicating quality of liquor not among those enumerated in R. S. c. 127, § 21, but containing one-half of one per cent. or more of alcohol by volume, is immaterial as an issuable fact (Ruppert v. Catiey, 251 U. S. 264, 40 Sup. Ct. 141, 64 L. Ed. 260), and the exceptions must be overruled. Upon such an hypothesis the only disputed issue of fact in the present case was whether the liquor in question was "fit for use for beverage purposes." This question the presiding justice fairly submitted to the jury.

True the presiding justice included the element of the intoxicating quality of the liquor, which the jury found in favor of the state; but this part of the charge imposed an unwarranted burden upon the state, as to which the claimant cannot be heard to complain. The questions propounded to the experts would likewise be objectionable and properly excluded, because each included the element of the intoxicating quality of the liquor.

The validity of P. L. 1919, c. 235, although frequently challenged, has not been heretofore authoritatively declared, and justices...

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    ...220, 184 N.W.2d 588; Hutchins v. Mayo, 143 Fla. 707, 197 So. 495; Thorpe v. Mahin, 43 Ill.2d 36, 250 N.E.2d 633; State v. Intoxicating Liquors, 121 Me. 438, 442, 117 A. 588; Featherstone v. Norman, 170 Ga. 370, 153 S.E. 58; Cheney v. St. Louis Southwestern Ry. Co., 239 Ark. 870, 872, 394 S.......
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    ...... State v. Mellenberger, 163 Or. 233, 259-63, 95 P.2d 709, 719-20 (1939). .         Precedents, ... See State v. Intoxicating Liquors, 121 Me. 438, 443, 117 A. 588 (1922); State v. Webber, 125 Me. 319, 321, 133 A. 738 ......
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    ...attempt on the part of the Legislature to delegate legislative authority to the Congress of the United States.' State v. Intoxicating Liquors, 1922, 121 Me. 438, 117 A. 588, 590. There the question in issue was the validity of an act of the Legislature which adopted a definition of intoxica......
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