State v. May

• Citation: 52 Kan. 53,34 P. 407
• Parties: THE STATE OF KANSAS v. L. R. MAY
• Decision Date: 01 July 1893
• Court: Kansas Supreme Court

34 P. 407

52 Kan. 53

THE STATE OF KANSAS v. L. R. MAY

Supreme Court of Kansas

July 1, 1893

Appeal from Reno District Court.

FEBRUARY 6, 1893, May was convicted of unlawfully selling intoxicating liquors. He appeals. The opinion states the facts.

Judgment reversed and cause remanded.

Davidson & Williams, for appellant.

John T Little, attorney general, and James McKinstry, county attorney, for The State.

Allen J. All the Justices concurring

OPINION

ALLEN, J.:

The defendant was charged in two counts with unlawful sales of intoxicating liquors, and, in the third count, with keeping a nuisance. He was convicted under the first and third counts. The first complaint is, that the third count of the information was amended after the jury had been sworn, by inserting the words, "and maintained by said defendant, L. R. May." We think the amendment was an immaterial one, and that the offense was sufficiently charged without it. It was admitted on the trial that the defendant sold "hop tea" and "B. B." in bottles, and the only question at issue on the trial was, whether the liquors sold were intoxicating liquors, within the meaning of the law. Included in the charge to the jury we find the following:

"4. There is no dispute in this case but that the defendant sold bottles of liquor called 'hop tea' and 'B. B.,' and the question for the jury to determine in this case is, whether or not the liquors so sold were intoxicating liquors.

"5. I instruct you that the statute makes spirituous, malt, vinous and fermented liquors intoxicating; and if you believe from the evidence in this case, beyond a reasonable doubt, that the said liquors known as 'hop tea' and 'B. B.,' are either spirituous, malt, vinous or fermented liquors, it is your duty to find such liquors intoxicating, whether they produce actual drunkenness or not.

"6. Beer is a malt liquor, and intoxicating, within the meaning of the law; and if you believe from the evidence, beyond a reasonable doubt, that the liquors sold were made from beer and water, the principal part thereof being beer, or enough beer used to cause an infusion of malt into the liquor sold, and so much so that the said liquor becomes a malt liquor, it is your duty to find that it is an intoxicating liquor, within the meaning of the law."

These instructions do not correctly state the law. The statute does not make any liquor intoxicating, but prescribes the punishment for the sale of those that are really so. The presence of malt in any compound does not necessarily make it an intoxicating liquor at all. It is not the presence or absence of any one particular ingredient that brings the compound within the prohibition of the statute, as was said by this court in Intoxicating-Liquor Cases, 25 Kan. 751:

"The mere presence of alcohol does not necessarily bring the article within the prohibition. The influence of the alcohol may be counteracted by the other elements, and the compound be strictly and fairly only a medicine."

And on page 768 of the same opinion:

"The courts may not say, as a matter of law, that the...