State v. Kezer

• Decision Date: 07 December 1901
• Citation: 74 Vt. 50,52 A. 116
• Parties: STATE v. KEZER.
• Court: Vermont Supreme Court

52 A. 116

74 Vt. 50

STATE

v. KEZER.

Supreme Court of Vermont.

Dec. 7, 1901.

Exceptions from Franklin county court; Rowell, Judge.

Fred Kezer was convicted of selling intoxicating liquors, and he brings exceptions. Exceptions overruled.

Argued before TAFT, C. J., and TYLER, MUNSON, START, WATSON, and STAFFORD, JJ.

D. W. Steele, State's Atty., for the State.

W. H. Fairchild and F. S. Tupper, for respondent.

TYLER, J. The state's evidence tended to show that the respondent owned or occupied a building in which he kept a general store and a dance hall; that on the evening in question a dance was held, and during the evening the respondent's clerk sold one Kettle four or. five ounce bottles of peppermint essence from a stock kept in the store, and that the respondent himself sold him three or four bottles of the essence that evening; that Kettle bought it to drink, did drink it, and became intoxicated. The state conceded that the article was manufactured and used as a medicine and for culinary purposes. The respondent conceded that it contained 50 per cent. or more of alcohol. It also appeared that it was used almost wholly as a carminative, but that it could be used as a beverage. The respondent moved the court to direct a verdict for that the essence was not an intoxicating liquor within the prohibition of the statute, which motion was denied, and the respondent excepted. The court submitted the case to the jury, with instructions that if the clerk sold the essence to Kettle knowing, or acting as a careful and prudent man having reason to know, that he wanted it to drink, and not to use as a medicine, and he did use it to drink, the respondent was guilty; and the same instruction, in effect, was given in respect to sales by the respondent himself,—to which the respondent excepted. The statute (V. S. § 4460) prohibits the sale of "spirituous or intoxicating liquor, or mixed liquor of which a part is spirituous or intoxicating"; so the question is whether this essence, manufactured solely for medicinal purposes, yet containing a sufficient amount of alcohol to produce intoxication, may, in any circumstances, come within the terms of the statute. It was clearly the intention of the legislature, in enacting the prohibitory law, to prevent the sale of those liquors as a beverage, commonly known as and called intoxicating; and in this case it is not contended by the state's attorney, and was not held by the trial court, that this preparation ordinarily falls within this class of beverages, so that its sale is unlawful.

Though this and many other articles, made for medicinal, culinary, and other purposes, contain a large per cent. of alcohol, they are not made for beverages, and fortunately are not often used as such. Their sale for the purposes for which they were manufactured is legitimate, while the sale of whisky, gin, brandy, and all other intoxicating liquors is unlawful. But when one of these preparations is sold for the purpose of intoxication, or the seller has...