State v. Pennell

• Decision Date: 07 July 1914
• Docket Number: 19,303,19,302,19,301
• Citation: 142 P. 979,92 Kan. 994
• Parties: THE STATE OF KANSAS, Appellee, v. ALBERT N. MILLER and J. J. PENNELL, Appellants. THE STATE OF KANSAS, Appellee, v. FRANK P. KIBBEY and LISLE STEADMAN, Appellants. THE STATE OF KANSAS, Appellee, v. CHARLES H. BASKIN, Appellant
• Court: Kansas Supreme Court

142 P. 979

92 Kan. 994

THE STATE OF KANSAS, Appellee, v. ALBERT N. MILLER and J. J. PENNELL, Appellants.

THE STATE OF KANSAS, Appellee, v. FRANK P. KIBBEY and LISLE STEADMAN, Appellants.

THE STATE OF KANSAS, Appellee, v. CHARLES H. BASKIN, Appellant

Nos. 19,301, 19,302, 19,303

Supreme Court of Kansas

July 7, 1914

Decided July, 1914.

Appeals from Geary district court; ROSWELL L. KING, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LIQUOR LAWS--What Liquors are Intoxicating under the Statute. Under sections 1 and 4 of chapter 164 of the Laws of 1909, relating to intoxicating liquors, any spirituous, malt, vinous or fermented liquors shall be construed and held to be intoxicating liquor, and any other liquor which is intoxicating in fact shall be construed and held to be intoxicating liquor.

2. SAME--Test to Determine Whether Liquor is Intoxicating Within the Statute. The test to be applied in determining whether or not the sale and keeping for sale of liquors other than those specifically mentioned in the statute is prohibited is this: If the liquor in question be of such a kind that the distinctive character and effect of intoxicating liquor be absent, it is outside the statute; if the distinctive character and effect of intoxicating liquor be present, it is within the statute. The fact is to be determined by the jury, or by the court sitting as a trier of the facts.

3. SAME--Earlier Interpretations of Liquor Laws Abrogated by Subsequent Statutes. The classification of liquors made in the decision in the Intoxicating-Liquor Cases, 25 Kan. 751, interpreting the intoxicating-liquor law of 1881, and the definition of intoxicating liquor which that law contained, was abrogated by the statute of 1909.

4. SAME -- "Intoxicating Liquors" -- Statutory Construction. When the statute of 1909 became effective the words "intoxicating liquors," wherever used in the intoxicating-liquor laws, became impressed with the signification given them by that statute.

5. SAME--"Jamaica Ginger" an Intoxicating Liquor. The evidence examined, and held to be sufficient to sustain a finding that Jamaica ginger is an intoxicating liquor, notwithstanding it has a medicinal use, the formula for its preparation is given in the United States dispensatory, and it is there classified with lemon, vanilla, cinnamon, cloves, camphor, cologne, paregoric, wintergreen, and like tinctures, extracts and essences.

Thomas Dever, W. S. Roark, and James V. Humphrey, all of Junction City, for the appellants.

John S. Dawson, attorney-general, and William W. Pease, county attorney, for the appellee.

Burch J. Porter J. dissenting.

OPINION

BURCH, J.

The actions were instituted to enjoin the defendants from maintaining common nuisances contrary to the provisions of the intoxicating-liquor law. The cases were tried together and the state prevailed. The defendants took separate appeals which may be considered together.

The defendants are druggists owning and conducting retail drug stores in the city of Junction City. The judgments rest on proof that the defendants kept for sale and sold the article known as Jamaica ginger. On occasions they manufactured the article according to the formula found in the United States Pharmacopoeia. The following stipulation was made:

"It is herewith agreed that the testimony as to sales that will be introduced in these cases will relate to the following articles or compound, to-wit: That tincture, extract or essence that is designated in the United States Dispensatory as 'Tincture of Ginger,' and is commonly called and known as 'Jamaica Ginger.' Is in the United States Dispensatory classed with those of lemon, vanilla, cinnamon, cloves, camphor, cologne, paregoric, peppermint, wintergreen, and many others of like character; and also that said tincture of ginger is composed of ingredients, as shown by the formulae in the United States Dispensatory, as follows: 93 to 94 per cent alcohol, the balance being a fluid extract of ginger."

The evidence was that the use of Jamaica ginger as a substitute for whisky has become quite extensive in Junction City. The preparation is intoxicating, the ginger--itself a stimulant--working no change in the intoxicating character of the alcohol, and the effect produced is about the same as that of whisky. It is capable of being used as an intoxicating liquor, the method being to dilute it with water, and it was so used to such an extent that blacklists were kept of persons who were known to be using it too freely. The city marshal furnished the druggists of the city with a list of the names of eleven of such persons. Some of the defendants had other persons in mind also. Persons on the blacklist would send unsuspected persons to the drug stores to buy for them. The preparation seems to have been sold in two-, three-, and four-ounce bottles. One witness paid twenty-five cents per bottle (size not stated) for what he drank. The defendants were quite indefinite as to the matter of total daily sales. One of them who was pressed for an estimate said he did not think his sales were as much as three or four dollars per day. One habitue said there was a difference in the color and strength of the liquid procured from different drug stores. Sometimes bottles were sold without a label. Sometimes bottles were refilled. In one instance two young men, referred to in the course of the trial as boys, drank a bottle together. When giving judgment in the case the court said:

"It is true, these druggists took precautions, and I don't think they intended, really, to sell to any one that they found out was really using it as a beverage, but yet they must have known that it was being used in that way."

Two of the defendants possessed internal revenue stamps. The other did not. Possession of such a stamp was explained in this way:

"Ques. Mr. Miller, you may state whether or not you have any drugs, medicines or compounds in your establishment that require a Government stamp for intoxicating liquors. Ans. Yes, sir, we have a good many of them.

"Ques. About how many of them? Ans. I wouldn't dare to say how many of them. There are 247 patent medicines we are notified by the Government of the United States that we must have a stamp to carry. I couldn't say how many of them I have.

"Ques. State whether that is the reason you had a stamp. Ans. Yes, sir, and we were notified by Mr. Jackson at the time."

"Ans. Ever since I have carried a stamp, because none of those 247 patents, we are not furnished with a list of them, and every once in a while there are twenty or thirty added to it, and every once in a while an Internal Revenue man might drop in."

The law of 1881 contains these provisions:

"Any person or persons who shall manufacture, sell or barter any spirituous, malt, vinous, fermented or other intoxicating liquors, shall be guilty of a misdemeanor, and punished as hereinafter provided: Provided, however, That such liquors may be sold for medical, scientific and mechanical purposes, as provided in this act.

"All liquors mentioned in section one of this act, and all other liquors or mixtures thereof, by whatever name called, that will produce intoxication, shall be considered and held to be intoxicating liquors within the meaning of this act." (Laws 1881, ch. 128, §§ 1, 10, Gen. Stat. 1901, §§ 2451, 2460.)

Material portions of the injunction statute under which the present proceedings were commenced are the following:

"All places where intoxicating liquors are manufactured, sold, bartered or given away in violation of law, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter or delivery in violation of the law, and all intoxicating liquors, bottles, glasses, kegs, pumps, bars and other property kept in and used in maintaining such a place, are hereby declared to be common nuisances." (Laws 1901, ch. 232, § 1, Gen. Stat. 1909, § 4387.)

"The attorney-general, county attorney, or any citizen of the county where such a nuisance as is defined in section 1, chapter 232, Session Laws of 1901, exists, or is kept, or is maintained, may maintain an action in the name of the state to abate and perpetually enjoin the same." (Laws 1903, ch. 338, § 1, Gen. Stat. 1909, § 4388.)

The liquor law of 1881 was interpreted in the Intoxicating-Liquor Cases, 25 Kan. 751, decided in 1881. Speaking through Mr. Justice Brewer, the court said:

"This section [10] whose language is unfortunately chosen, is the one which has provoked this litigation, and has tended to create so much prejudice against the statute; for its letter reaches to preparations which no man can believe were within the intent of the legislature, and any interference with whose sale, if within the power of the legislature, would be felt by every one to be unnecessary and unreasonable. Alcohol is the intoxicating principle, the basis of all intoxicating drinks. Whatever contains alcohol, will, if a sufficient quantity be taken, produce intoxication. Hence, whatever liquor contains alcohol is within the statute. So reads its letter. But when we come to inquire as to the liquors which contain alcohol, we find a lengthy list of fluids which are never used as beverages. Cologne, extract of lemon, bay rum paregoric, tincture of gentian and many other medicinal preparations contain alcohol and all will produce intoxication. They are seldom used as a beverage, and yet they may be. Intoxication produced by drinking bay rum has been known. Yet few will drink it. Its uses are for the toilet. But three of the cases before us are prosecutions for the sale of bay rum, essence of lemon and tincture of gentian, respectively. These...