Commonwealth v. Sookey

• Decision Date: 24 November 1920
• Citation: 128 N.E. 788,236 Mass. 448
• Parties: COMMONWEALTH v. SOOKEY. SAME v. REAGAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

236 Mass. 448

128 N.E. 788

COMMONWEALTH

v.SOOKEY.

SAME

v.REAGAN.

Supreme Judicial Court of Massachusetts, Berkshire.

Nov. 24, 1920.

Report from Superior Criminal Court, Berkshire County; Nelson P. Brown, Judge.

Sam Sookey and Michael J. Reagan were each convicted of an unlawful sale of intoxicating liquor, and the superior court justice certified that there was reasonable doubt whether the judgments should stand, and reports the cases to the Supreme Judicial Court. Verdict in each case ordered set aside.

Charles H. Wright, Dist. Atty., of Pittsfield, for the commonwealth.

Harold R. Goewey, of Pittsfield, for defendant Reagan.

Warner & Barker, of Pittsfield, for defendant Sookey.

DE COURCY, J.

In each of these cases the complaint alleged an unlawful sale of ‘intoxicating liquor, to wit, Jamaica ginger,’ to one Harrington, at Pittsfield, on July 17, 1919. The cases were tried together. The only evidence offered was an agreed statement of facts. It appears therein that the defendant Sookey conducts a retail grocery store, in which he also sells soda water and ice cream. He had bought from the Berkshire Grocery Company, wholesale grocers, 12 dozen bottles of a standard brand of Jamaica ginger, containing alcohol as stated in the label on each bottle, which label reads as follows:

‘3 FL. OZ.

‘Harris'

‘Strictly Pure

‘EXTRACT

‘JAMAICA GINGER.

‘Alcohol 88%.

‘For Flavoring and

‘Medicinal Purposes.

‘Manufactured by

‘Frank E. Harris Co.,

‘Binghamton, N. Y.’

On the day alleged Harrington ‘purchased a bottle from said defendant, being an original package of said Jamaica ginger,’ and said bottle was brought into court as evidence. The facts in the Reagan case are the same, except that he ‘conducted a store in which he sold ice cream, soda water, cigars, tobacco, and toilet articles, and also maintained in the rear of his store four billiard and pool tables for the use of the public.’ He had on hand about 24 bottles of Jamaica ginger.

The motion of each defendant for a directed verdict raises the question whether a verdict of guilty was warranted by the agreed facts. We put aside the discussion of the Prohibition Amendment to the federal Constitution, and the Volstead Act (41 Stat. 305) enacted by Congress to enforce the same, as they were not in effect at the time of the sales in question. Nor is it contended that the earlier War-Time Prohibition Act has any application. See Jacob Ruppert v. Caffey, 251 U. S. 264, 40 Sup. Ct. 141, 64 L. Ed. 260. The statute that the defendants were charged with violating is R. L. c. 100, which prohibits the unauthorized sale of intoxicating liquor. It was held in the recent case of Commonwealth v. Nickerson, 128 N. E. 273 (Sept. 17, 1920), that this statute ‘has not been abrogated by the Eighteenth Amendment and the Volstead Act. The sections under which the complaint was framed against the defendant are still operative and efficacious.’ Section 2 provides as follows:

‘Ale, porter, strong beer, lager beer, cider, all wines, any beverage which contains more than one per cent. of alcohol, by volume, at sixty degrees Fahrenheit, and distilled spirits, shall be deemed to be intoxicating liquor within the meaning of this chapter.’

Jamaica ginger is not included in this definition, unless it is shown to be a ‘beverage’; that is to say, a liquor for drinking. The mere fact that it contains a large percentage of alcohol does not make it ‘intoxicating liquor’ within the meaning of the statute. There are numerous medical preparations manufactured in accordance with formulas prescribed by the United States Pharmacopoeia (see R. L. c. 75, § 18; chapter 100, § 17, cl. 3), and many patent and proprietary medicines, toilet and antiseptic solutions, which contain much more than ‘one per cent. of alcohol,’ but whose use as a beverage is rendered practically impossible by reason of other ingredients. Commonwealth v. Mandeville, 142 Mass. 469, 8 N. E. 327;State v. Costa,78 Vt. 198, 207, 62 Atl. 38; Intoxicating Liquor Cases, 25 Kan. 751, 37 Am. Rep. 284.

In this meager record there appears no evidence that the article sold was fit for beverage purposes, much less that it was ordinarily so used. No testimony was introduced as to its nature, or as to its constituent elements other than the alcohol. So far as disclosed by the agreed facts, it was manufactured solely ‘for flavoring and medicinal purposes,’ as the label indicated, and sold by each of these defendants to Harrington in good faith for those purposes. It would be only conjecture to infer from a single sale of Jamaica ginger, without any evidence of the possibility or extent of the use of this preparation as a beverage, that the bottle was in fact sold not as a medicine, but as intoxicating liquor. Commonwealth v. Ramsdell, 130 Mass. 68;Commonwealth v. Joslin, 158 Mass. 482, 33 N. E. 653,21 L. R. A. 449. It could not be ruled as matter of law that the mere possession by a grocer or druggist of certain well-known articles ordinarily used for medical, culinary, toilet or antiseptic purposes, and containing alcohol, makes the dealer criminally liable for the illegal keeping of intoxicating liquor, under our statutes. See in this connection R. L. c. 76, § 23, as amended by St. 1910, c. 172. For the more stringent provisions of the Volstead Act, see title 2, §§ 1, 4, and Regulation 60, issued under said act by the Bureau of Internal Revenue; especially see Regulations of United States Treasury Department 3092, approved November 16, 1920, with reference to extract of ginger.

[2] We cannot supply the lack of essential evidence in the present case by taking ‘judicial notice’ that extract of Jamaica ginger is in fact an intoxicating beverage, and that it is...