Dutton v. State
| Decision Date | 15 April 1922 |
| Docket Number | A-2372. |
| Citation | 205 P. 940,21 Okla.Crim. 186 |
| Parties | DUTTON v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
At the time of the enactment of our statute against the sale of medicated compounds containing alcohol in sufficient quantity to intoxicate, the United States courts had held that a sale of such preparations by retail merchants in good faith as a medical preparation and in the original bottle to be used by the purchaser for medical purposes would not subject the seller to the payment of the special tax required of retail liquor dealers. Such a sale has been excepted by the Legislature from the operation of our prohibitory liquor statute.
Where defendant, a druggist, is charged with the sale of a well-known medicated compound containing more than one-half of 1 per cent. of alcohol, measured by volume, and capable of being used as a beverage, it is error to refuse to permit the defendant to show that such compound was sold by him in the original bottle with seal unbroken in good faith, in the usual course of trade, for medical purposes, and it is error further to instruct the jury that the good intentions of defendant in making a sale for medical purposes is no defense.
Appeal from County Court, Hughes County; J. Ross Bailey, Judge.
J. R Dutton was convicted of violation of the prohibitory liquor law, and appeals. Reversed and remanded.
Crump & Hall, of Holdenville, for plaintiff in error.
Wilson Tomerlin & Buckholts, of Oklahoma City, amicus curiæ.
S. P Freeling, Atty. Gen., R. McMillan, Asst. Atty. Gen., and J E. Crowder, of Terral, for the State.
J. R Dutton was convicted in the county court of Hughes county of violating the prohibitory liquor law by selling a certain compound labeled Hostetter's Celebrated Stomach Bitters, alleged to contain more than one-half of 1 per cent. of alcohol, measured by volume, and capable of being used as a beverage.
Defendant was the proprietor of a drug store in the city of Holdenville, and the bottle of Hostetter's Celebrated Stomach Bitters was sold in said store in the usual course of trade and in the original bottle with the seal unbroken. Afterwards the contents of the bottle were analyzed by Dr. De Barr, chemist at the State University, and the said compound was shown to contain about 33 1/3 per cent. of whisky, some cinchona and ginger, and was capable of being used as a beverage. There is no direct evidence that the defendant sold the said article for beverage purposes, nor are the circumstances of the sale such as to indicate beyond a reasonable doubt that this bottle of Hostetter's bitters was sold to be drunk as a beverage.
This prosecution is...
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