Carl v. State

• Decision Date: 22 May 1889
• Citation: 6 So. 118,87 Ala. 17
• Parties: CARL v. STATE.
• Court: Alabama Supreme Court

6 So. 118

87 Ala. 17

CARL v. STATE.

Supreme Court of Alabama

May 22, 1889

Appeal from circuit court, Escambia county; JOHN P. HUBBARD, Judge.

H. C Carl was indicted for selling intoxicating liquor as a beverage, and from a judgment of conviction he appeals.

John Gamble, for appellant.

W L. Martin, Atty. Gen., for the State.

SOMERVILLE J.

The defendant, being indicted, was convicted of selling spirituous liquors without a license, and contrary to law. The article sold was labeled "Elixir Cinchona, or Cinchona Bitters." The evidence on the part of the state tended to prove that it contained spirituous liquor sufficient to make it intoxicating in its ordinary use as a beverage, and that it was frequently sold and used as a beverage in the community, especially since the enactment of a local law prohibiting the sale of spirituous liquors in Escambia county, and that it was sold by the defendant more as a beverage than as a medicine. The testimony offered by the defendant, on the contrary, tended to prove that the decoction contained 20 per cent. of proof spirits, or only enough to prevent it from fermentation, and no more; that it was manufactured in good faith as a medicine, and that it was a valuable tonic and stimulant, and not an intoxicant in its ordinary use; that it contained barks and herbs of known medicinal qualities, and was sold in good faith as a medicine, and not as a beverage.

The purpose of prohibitory liquor laws is to promote the cause of temperance, and prevent drunkenness. The mode adopted to accomplish this end is the prevention of the sale, the giving away, or other disposition of intoxicating liquors. The evil to be remedied is the use of intoxicating liquors as a beverage, rather than as an ingredient of medicines and articles for the toilet or for culinary purposes, and the object of the law in this particular must not be lost sight of in its interpretation. It is true, and we have so held in Carson's Case, that, if the article sold was spirituous or other intoxicating liquor, the fact that it was sold for medicine would be no defense, unless there was an express exception in the statute. But we observed in that case as follows: "We are not to be supposed as intimating that physicians or druggists would be prohibited, under such a statute as the one in question, from the bona fide use of spirituous liquors in the necessary compounding of medicines manufactured, mixed, or sold by them. This would not be within the evils intended to be remedied by such a prohibitory enactment, nor even within the strict letter of the statute." Carson v. State, 69 Ala. 235 241; Woods v. State, 36 Ark. 36. We again said in discussing this same subject, in Wall v. State, 78 Ala. 417: "There may be cases, perhaps, where the bona fide use of a moderate quantity of spirituous liquor, in a medicinal tonic, would not alone bring a beverage [or decoction] within the statute."

This question is exhaustively discussed in the Intoxicating Liquor Cases, 25 Kan. 751, (decided in the year 1881.) The Kansas statute prohibited the sale of "all liquors and mixtures, by whatever name called, that will produce intoxication." It was held not to embrace standard medicines, and toilet articles, not ordinarily used as beverages, such as tincture of gentian, bay rum, and essence of lemon, although containing alcohol. Whether it embraced certain cordials or bitters was held to be a question of fact dependent on the evidence as to their intoxicating qualities and ordinary use. It was said that "bay rum, cologne paregoric, and tinctures generally all contain alcohol, but in no fair or reasonable sense are they intoxicating liquors, or mixtures thereof." And as to the cordials and bitters the question was said to be one of fact, which should be referred to the jury. "If the compound or preparation," said the court, "be such that the distinctive character and effect of intoxicating liquor are...