Bertrand v. State

• Decision Date: 04 November 1895
• Citation: 73 Miss. 51,18 So. 545
• Court: Mississippi Supreme Court
• Parties: JOHN BERTRAND v. STATE

18 So. 545

73 Miss. 51

JOHN BERTRAND v. STATE

Supreme Court of Mississippi

November 4, 1895

FROM the circuit court of Perry county, HON. A. G. MAYERS, Judge.

The charge against the appellant was selling intoxicating liquor without a license. On the trial, it was shown by a witness for the state that the appellant had sold to him "tincture of ginger;" that he bought it to drink when diluted; that it was purchased from appellant at his drug store for its intoxicating effects, but that nothing was said about his purpose in buying it; that he could not drink it in its condition at the time of purchase, and, in order to do so, had to dilute it by adding two parts of water to one of the tincture; and that, so diluted, he drank it, and it was intoxicating. Another witness for the state testified to substantially the same facts, but entirely failed to fix the date of sale.

It was shown on behalf of appellant that the tincture of ginger is used by all physicians when prepared under the formulae of the United States Dispensatory, the reliable character of which work was also shown; that the tincture in question was so prepared, and could not be used as an intoxicant without danger of serious injury to the person drinking it; that a person, ordinarily speaking, could not take enough of it to intoxicate him; that appellant was a duly licensed druggist and sold the tincture in good faith as a medicine, and that to drink it in the form in which it was sold would likely produce death.

The court below refused to allow appellant to show that there were many other officinal tinctures used by physicians which, if diluted with water, and then drunk to excess, would produce intoxication; and also to allow appellant to introduce in evidence his license as a druggist, and to show by the testimony of the witness, Dr. Gillis, that he knew how the tincture was prepared, and for what use and purpose.

The following instruction for the state was given: "If the jury believe, from the evidence, that the accused sold essence or tincture of ginger, or something called essence or tincture of ginger, or any other liquor or drink which, when diluted with water, if drunk to excess, would produce intoxication, they ought to find the defendant guilty as charged."

The court refused to give the following instructions asked by the appellant: 1. If the jury believe, from the evidence, that the defendant sold tincture of Jamaica ginger as a medicine in good faith, and that the same was prepared by the directions of the United States Dispensatory, and is recognized by the medical profession of the United States then the defendant is not guilty. 2. If the jury believe from the evidence, that the tincture prepared by the defendant could not be drunk to intoxication, without being diluted, and that the defendant did not participate in its dilution and knew nothing of it, then he is not guilty as charged, and the jury will so find. 3. If the jury believe, from the testimony, that the ginger sold to Davis and Brown (the witnesses for the state) was sold in good faith as a medicine, and that the same could not have been used to such an extent as to produce intoxication at the time of sale, without diluting it, then the defendant is not guilty of unlawfully selling intoxicating drinks as charged.

Reversed and remanded.

Thomas Brady and R. H Thompson, for appellant.

"Tinctures," as known in pharmacy and physic, are officinal medicines, extracts of vegetables, procured by dissolution in alcohol. Many are mentioned in the United States Dispensatory, and many are in daily use by physicians. Although some of them may be diluted and drunk to intoxication, § 1592, code 1892, does not apply to a sale of any of them, when made by a duly licensed druggist, in good faith, as a medicine. Intoxicating liquor cases, 25 Kan. 751, s.c. 37 Am. Rep., 284; King and Wall v. State, 58 Miss. 737; Commonwealth v. Ramsdell, 130 Mass. 68; State v. Haymond, 20 W.Va. 18, s.c. 43 Am. Rep., 787.

Frank Johnston, attorneygeneral, for the state.

The prevailing opinion seems to be that, if the article sold is not changed in character, but still remains an intoxicating liquor, the addition of roots, herbs, bark and the like, will not take it out of the operation of the statute. At the same time it is held that such statutes do not apply to medical preparations in which alcohol is used in quantities sufficient to produce intoxication, which are sold bona fide for medical purposes. King and Wall v. State, 58 Miss. 737; Laffers v. State, 38 Iowa 422; Knowles v. State, 57 Iowa 669.

There are also certain intoxicants that the courts recognize as within the statute--such as brandies, whiskies and the like--and certain medicinal preparations which may produce intoxication, which the courts may declare, as matter of law, not to be within the statute. Intox. Liq. Cas., 25 Kan. 751, s.c. 37 Am. Rep., 284. It has been also declared that alcohol is a quality or ingredient of vinous and spirituous liquors, but is itself neither the one nor the other, and not within the statute. Lemly v. State, 70 Miss. 242; Martin v. State, 34 Ark. 340. And, again, there is a line of cases holding that where liquor is sold as a medicine, the statute is violated without regard to the motive of the sale, unless the statute contains the exception. 2 Whart. on Crim. L., § 2439; Kimball v. Commonwealth, 24 Pick. (Mass.), 366; Burns v. State, 31 Me. 522. Finally, there is a class of articles, primarily and ordinarily medicines, though intoxicants, the sale of which may be lawful or unlawful, according to the motive and intention in the sale. The article sold to appellant was of this last mentioned class, and the sole question for review is whether or not the court below erred in excluding from the consideration of the jury the intent with which the sale was made by the appellant.

It should be noted that the statute construed in King and Wall v....