McLean v. People

• Decision Date: 07 April 1919
• Docket Number: 9076.
• Citation: 180 P. 676,66 Colo. 486
• Parties: McLEAN v. PEOPLE.
• Court: Colorado Supreme Court

180 P. 676

66 Colo. 486

McLEAN v. PEOPLE.

No. 9076.

Supreme Court of Colorado

April 7, 1919

Error to District Court, Prowers County; Granby Hillyer, Judge.

N. M McLean was convicted of unlawfully selling and keeping for sale intoxicating liquor, and he brings error. Affirmed in part, and reversed in part.

Devine & Preston and Todd C. Storer, all of Pueblo and Allyn Cole, of Lamar, for plaintiff in error.

Leslie E. Hubbard, Atty. Gen., and Charles Roach and Bertram B. Beshoar, Asst. Attys. Gen., for the People.

GARRIGUES C.J.

The information charges that April 15, 1916, defendant did unlawfully sell and keep for sale intoxicating liquors, not for medicinal or sacramental purposes. Defendant, a resident of Lamar, was the proprietor of a drug store there, and kept for sale and sold Jamaica ginger after the prohibition act of 1915 went into effect January 1, 1916 (Laws 1915, p. 275) which prohibited the sale of, or keeping for sale, intoxicating liquors within the state.

The evidence shows that Jamaica ginger was frequently purchased by divers persons from defendant's store to be used as a beverage, that it was so used, and that it would and did produce intoxication. Defendant claims that the court should have instructed the jury that Jamaica ginger, as a matter of law, was not an intoxicating liquor.

As human knowledge grows with experience, the facts of which judicial notice will be taken are constantly increasing. It is a matter of common knowledge that alcohol is the intoxicating element of all intoxicating liquors. We also think it has become a matter of common knowledge to all well-informed men that Jamaica ginger is an intoxicating liquor, and that the court might, from the facts in this case, well have so told the jury. Its high percentage of alcohol (90 per cent.) is required to hold the ginger in solution. But it is the alcohol, which retains its intoxicating effect, and not the ginger, that produces intoxication. While it is true that Jamaica ginger is manufactured to be used as a medicine and not as a drink, still it is a familiar fact that it is often used as a substitute for whisky, and that, while half a teaspoonful is a dose as a medicine, it is capable of being used, and is used and drunk, as an intoxicating liquor. This is done by weakening the solution with two-thirds water; the ginger is precipitated to the bottom of the glass by weakening the solution, and the alcohol is drunk off the top, which makes a pretty good substitute for a drink of whisky. The evidence shows as many as two or more bottles were sometimes sold in one day to the same person.

The act includes within its provisions intoxicating liquors of every kind and character which now are in use, or which in the future may come into use as a beverage, no matter by what name they may be named or called, and no matter how small a percentage of alcohol they may contain, and no matter what other ingredients may be in them.

The court instructed the jury:

You are further instructed that, in determining whether the liquor which defendant is charged with having sold or kept for sale is intoxicating within the meaning of the law, in the event you find beyond a reasonable doubt that defendant sold Jamaica ginger as alleged by the state, you may consider any evidence submitted to you as to its nature and constituent elements, its ordinary use, its susceptibility to use as an intoxicant, the extent of such use, and all other evidence which in this particular instance will aid you in determining the question of its intoxicating character, and from all the evidence determine whether or not such liquor as you so find to have been kept for sale or sold was in fact intoxicating--that is, capable of producing intoxication and capable of being used as a substitute for whiskey, or other ordinary intoxicants. If you find from the evidence on the trial beyond a reasonable doubt that defendant, either by himself or through the instrumentality of an agent, employé, or servant, kept for sale or sold intoxicating liquor to be used as a beverage or drink contrary to the provisions of law, as defined to you in these instructions, it will be your duty to find him guilty as charged in the information.

We find no error in this instruction. Snider v. State, 81 Ga. 753, 7 S.E. 631, 12 Am.St.Rep. 350; Chapman v. State, 100 Ga. 311, 27 S.E. 789; State v. Kezer, 74 Vt. 50, 51, 52 A. 116; State v. Muncey, 28 W.Va. 494; Stelle v. State, 77 Ark. 441, 443, 92 S.W. 530; Prinzel v. State, 35 Tex. Cr. R. 274, 33 S.W. 350; State v. Gray, 61 Conn. 39, 22 A. 675; Marks v. State, 159 Ala. 71, 48 So. 864, 133 Am.St.Rep. 20.

2. Error is assigned because the court refused defendant's tendered instructions Nos. 5 and 6. They are as follows:

No. 5. 'You are instructed that if the compound or preparation alleged to have been kept for sale and sold be such that the distinctive character and effect of intoxicating liquors are gone and its use as a beverage is rendered undesirable or practically impossible by reason of other ingredients, and the liquor is used merely as a vehicle for or preservation of the other ingredients or to extract their virtues and hold them in solution, the article will not be within the prohibition of the statute, although its use may produce intoxication.'

No. 6. 'You are instructed that all liquid matters containing alcohol group themselves into three classes. The first embraces what are generally and popularly known as intoxicating liquors unmixed with any other substances. The second includes articles, equally well-known standard articles, and which while containing alcohol are never classed as intoxicating beverages, but their uses are culinary, medical, and for the toilet. It is possible that a man may get drunk upon these articles, but they are not to be classed as intoxicating liquor. The third embraces compounds and preparations in which the alcoholic stimulant is present, but are not of the established name and character and are not found in the United States dispensatory or like standard authorities, and these may be classed as intoxicating or otherwise, according to the particular facts of each given case.

'If you find from the evidence that there was a sale made in this instance of an article of the first class, then you will find the defendant guilty; but if, on the other hand, you find from the evidence that the articles sold are of the second class, that is, standard or medical preparations named in the United States dispensatory or like standard authorities, then you will find the defendant not guilty, for such articles fall into the class of medicines and the like. If you find that there was a sale of articles of the third class--that is, of nonstandard preparations, then the question is one for you to decide as to whether or not the particular article or articles are intoxicating liquors intended and used as beverages and merely hiding under the guise of medicine.'

The court committed no error in refusing to give these instructions. State v. Miller, 92 Kan. 994, 142 P. 979, L.R.A. 1917F, 238, Ann.Cas. 1916B, 365; Mitchell v. Commonwealth, 106 Ky. 602, 51 S.W. 17.

3. Defendant also claims that the court erred in refusing to give his tendered instruction No. 3, which told the jury that the people must prove beyond a reasonable doubt that a sale was made of intoxicating liquors, either by the defendant personally, or by his agent under his instructions, and with his full knowledge and consent; and instructed the jury, instead, that the law makes any person, whose employé or agent shall violate any of its provisions, guilty of a misdemeanor. In this there was no error. Section 22 of the act provides that any person whose employé or agent shall violate any of the provisions of the act shall for the first offense be deemed guilty of a misdemeanor. There is no merit in this contention when we consider, in the face of this statute, that it is conceded that defendant kept Jamaica ginger for sale, and that he sold it himself, and authorized his clerk to sell it. Woollen & Thornton on Intoxicating Liquors, § 806; Bryan v. Alder, 97 Wis. 124, 72 N.W. 368, 41 L.R.A. 662, 65 Am.St.Rep. 99; State v. Gilmore, 80 Vt. 514, 68 A. 658, 16 L.R.A. (N. S.) 786, 13 Ann.Cas. 321; Noecker v. People, 91 Ill. 494, 496; People v. Longwell, 120 Mich. 311, 79 N.W. 484; State v. Constatine, 43 Wash. 102, 86 P. 384, 117 Am.St.Rep. 1043; Riley v. State, 43 Miss. 397; State v. McConnell, 90 Iowa 197, 198, 57 N.W. 707.

4. Defendant claims he sold the Jamaica ginger believing in good faith that it was intended to be used by those who purchased it as a medicine and that this constituted a defense which should have been submitted to the jury. The court excluded certain evidence along this line given by defendant to show such good faith, and refused defendant's tendered instruction No. 4 in accord with this theory, which asked the court to tell the jury:

'You are instructed that a standard medicine prepared according to a standard formula laid down in the United States dispensatory and used by physicians throughout the United States as a medicine in their practice, and which without dilution cannot be used as an intoxicant, is not an intoxicating liquor in itself, and its sale as a medicine is not a sale of intoxicating liquor, though it may be so diluted by water that it may be drunk in quantities sufficient to become an intoxicant.'

Article 22 of the Constitution (Laws 1915, p. 165), which prohibits the sale or keeping for sale of intoxicating liquors, provides:

'That the handling of intoxicating liquors for medicinal or sacramental purposes may be provided for by statute.'

The statute provides:

'That the handling of intoxicating liquors for medicinal or

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