Schemmer v. State

• Decision Date: 04 December 1920
• Docket Number: 21466
• Citation: 180 N.W. 581,105 Neb. 324
• Parties: J. H. SCHEMMER v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

180 N.W. 581

105 Neb. 324

J. H. SCHEMMER v. STATE OF NEBRASKA

No. 21466

Supreme Court of Nebraska

December 4, 1920

ERROR to the district court for Knox county: ANSON A. WELCH, JUDGE. Reversed.

REVERSED.

F. L Bollen and A. J. Wilcox, for plaintiff in error.

Clarence A. Davis, Attorney General, and P. H. Peterson, contra.

OPINION

ALDRICH, J.

This is a prosecution for a violation of the liquor laws. It was charged that the plaintiff in error did "unlawfully wilfully, and maliciously have in his possession, and keep for illegal purposes, one pint of intoxicating liquor, to wit, about one pint of Jamaica ginger, in his place of business and on his person," etc. The evidence showed that he is a druggist, and on the date charged he was found lying on the floor in the rear part of his drug store apparently in a stupor; that when he was revived partially he said that in moving some tubs of ice cream he had slipped and fallen, had broken a rib, and had taken at intervals two small doses of Jamaica ginger and a dose of morphine in order to relieve the severe pain. There was found on his person a 16-ounce bottle of Jamaica ginger partially filled. His rib was not broken, but the physician testified he found a tender spot on his side.

The evidence shows that Jamaica ginger is manufactured by percolating alcohol through ginger root in a powdered from, and that it usually contains in its commercial form at least 80 per cent. of alcohol. It is a standard medical preparation and is used in materia medica in diseases or disturbance of the bowels. The undisputed testimony sustains the recital of facts in the first paragraph of instruction No. 1, requested by defendant, and refused by the court, which is as follows:

"The evidence in this case shows that the liquor claimed to have been found and in the possession of the defendant on his person is a preparation or remedy containing drugs which do not contain more alcohol than is necessary for the legitimate purpose of extraction, solution, or preservation, and which contains drugs which in compatible combination is in sufficient quantities to so medicate such preparation or remedy as to make such liquor a medical preparation and render same unfit for use as a beverage, and the same is unfit for a beverage.

"And the burden of proof is on the state to prove beyond a reasonable doubt that the defendant did manufacture, sell, buy or deal in same for use of the same as a beverage at the time and place stated in the complaint; and unless you so find you will find the defendant not guilty."

The court, however, adopted and gave to the jury in his charge the first paragraph of this instruction, and, instead of the second paragraph, substituted the following: "And the burden of proof is on the state to prove beyond a reasonable...