Mason v. State

• Decision Date: 28 March 1907
• Docket Number: 262.
• Parties: MASON v. STATE.
• Court: Georgia Court of Appeals

58 S.E. 139

1 Ga.App. 534

MASON v. STATE.

No. 262.

Court of Appeals of Georgia

March 28, 1907

Syllabus by the Court.

Act 1877, p. 189, making unlawful the sale of intoxicating liquors within three miles of the Masonic Academy in the town of Swainsboro, was not repealed by section 26 of the charter of the city of Swainsboro, approved December 6, 1900.

The words, "in Swainsboro, Georgia," used in a criminal accusation, are apt words to convey the meaning that the acts alleged occurred within the territorial limits of the municipal corporation bearing that name.

[Ed Note.-For cases in point, see Cent. Dig. vol. 27, Indictment and Information, § 234.]

The mere fact that the school formerly taught in the Masonic Academy, which was designated as the center of a three-mile area in which a local prohibition act became effective, is no longer taught in the original building, but in a new house a short distance away, does not invalidate the conviction under that act, of one who is guilty of selling intoxicating liquor within three miles of both the original and the subsequent location of the school.

[Ed Note.-For cases in point, see Cent. Dig. vol. 29 intoxicating Liquors, § 178.]

Oral testimony tending to prove that a given act occurred within three miles of a certain Masonic Academy is not subject to the objection that the charter of the academy is the highest evidence.

The expression "intoxicating liquors," as used in statutes, in the absence of other words tending to limit the meaning, may be defined as including any liquid intended for use as a beverage or capable of being so used containing alcohol, obtained either by fermentation or distillation, or both, in such a proportion that it will produce intoxication when taken in such quantities as may practically be drunk.

(a) Medicinal, toilet, and culinary preparations, recognized as such by standard authority (such as the United States Dispensatory) and not reasonably capable of use as intoxicating beverages-e. g., tincture of gentian, paregoric, bay rum, cologne, essence of lemon, wood alcohol-are not ordinarily to be regarded as being within the meaning of the expression "intoxicating liquors," though such articles are liquid, contain alcohol, and may produce intoxication.

(b) Patent medicines, cordials, bitters, tonics, and other articles not recognized by standard authority as being within the class just mentioned are to be regarded as being intoxicating liquors if they are capable of being used as a beverage and contain such a percentage of alcohol as that, if drunk to excess, they will produce intoxication.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 29, Intoxicating Liquors,§§ 142-146.]

While the evidence was amply sufficient to support the verdict, yet, since the defendant made the specific contention that the particular patent medicine which he was accused of selling was not capable of being used as a beverage, and introduced proof tending to show this fact, and the trial judge, in his instructions to the jury, entirely ignored this defense, the exception upon this ground must be sustained.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1986.]

Error from City Court of Swainsboro; Mitchell, Judge.

One Mason was convicted of an unlawful sale of liquor, and he brings error. Reversed.

Saffold & Larsen, for plaintiff in error.

Henry R. Daniel, Sol., for the State.

POWELL J.

In 1877 a local act was passed making it penal to sell "spirituous or intoxicating liquors, schnapps, or bitters," within three miles of the Masonic Academy in the town of Swainsboro, Emanuel county, Acts 1877, p. 189. The defendant was convicted under an accusation charging that he "did sell in Swainsboro, Georgia, within and in less than one mile of the Masonic Academy, for valuable consideration, a certain quantity of intoxicating liquor commonly known as 'Rutona."' Upon the trial the State proved, by several witnesses, that they had bought Rutona of the defendant at his drug store in Swainsboro; that they had drunk it, and that its effects were similar to those of whisky; that it was intoxicating. It is described as tasting like whisky with something bitter in it. One witness says: "I do not know what Rutona is made of. I don't know a single ingredient in it, but there must be some alcohol in it from the effects it has. I never drank much of it, but on one or two occasions, when I had drunk too much whisky, and whisky was out, and I was feeling sick, I drank this. After a man has been on a drunk and he is nervous, he will drink most anything that is intoxicating, if he can't get whisky. I drank this Rutona, and I know it will get up steam in a little while. It will quiet the nerves and put the blood to circulating, and make you feel good again." The defendant introduced, among other witnesses, the president and the secretary of the Columbia Drug Company, the corporation by which Rutona is manufactured. The president testified that he was a chemist by profession, and that the percentage of alcohol in Rutona is 22 per cent. in maceration, but that by the time it is through evaporating there is not over 18 to 20 per cent. left. Formerly the percentage of alcohol was higher, but, by experiment, the amount had been reduced, and the above was the minimum amount which would preserve the alkaloids and keep the active ingredients in solution; that quinine is the active principle of Rutona; that it is a medicine, is not manufactured or sold as a beverage, is not an intoxicating liquor; that, if a person were to take enough of the medicine to be affected by the alcohol, "he would be in a bad fix, he would not have any head left." The secretary of the Columbia Drug Company also testified that the percentage of alcohol in Rutona was 22 per cent. The medicine is...