State v. Wilson

• Decision Date: 31 October 1883
• Citation: 80 Mo. 303
• Parties: THE STATE v. WILSON, Appellant.
• Court: Missouri Supreme Court

80 Mo. 303

THE STATE

v.WILSON, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Adair Circuit Court.--HON. ANDREW ELLISON, Judge.

AFFIRMED.

D. H. McIntyre, Attorney General, for the State.

The bitters sold were “medicated bitters containing alcohol,” and druggists were prohibited from selling them by section 1, page 166, Laws 1879. The only provision of law then in force (1880) under which defendant could claim the right to sell such bitters as is agreed were sold, is that part of section 3, page 166, Laws 1879, which says: “Such dealer in drugs and medicines may sell or give away, in any quantity * * liquors of any kind when the same * * are used solely in the admixture of necessary remedial compounds * *.” It is evident that the section last quoted was only intended to give druggists authority to sell liquors to physicians and others for the ordinary compounding and preparation of medicines, in like manner as in the “preparation of tinctures,” and that it was never intended to give them the right to use it as an ingredient in a medicated bitters prepared by them for general sale. Any other interpretation of the exception in the 3rd section, would render the prohibition to sell “medicated bitters” contained in the 1st nugatory.

MARTIN, C.

The defendant was indicted at the October term, 1880, of the circuit court of Adair county, for selling intoxicating liquor as a druggist in less quantity than one gallon. He pleaded “not guilty,” and the cause was tried by the court sitting as a jury at the February term, 1881.

The following agreed statement of facts was submitted to the court:

1. That defendant sold one pint bottle of “Dr. Wilson's Rocky Mountain Herb Bitters,” as charged in the indictment. 2. That said bitters are intoxicating to a certain extent, and contain alcohol. 3. That said bitters contain cinchona, columbo, gentian, quassia, orange peel, anise, coriander seed, ginseng syrup, alcohol and water. 4. That all the above mentioned articles in number 3 are good and genuine medicines of great medicinal virtue, and possess great and genuine medicinal properties. 5. That the alcohol used was only sufficient and for the purpose of securing and preserving the medicinal properties of the aforesaid medicine, and that the alcohol so employed is a necessary and constituent element to obtain and preserve the medicinal qualities of the aforesaid medicine so employed in their composition. 6. That the defendant is a druggist and engaged in said business in the town of Kirksville, and that he is the owner and proprietor of a drug store in said town.

The defendant, in addition to the above, testified that the bitters in question were prepared and sold by him in good faith as a medicine, and not for the purpose of evading the liquor law, and that he was not a registered physician. Dr. F. A. Grove testified that he was a druggist and regular registered physician and surgeon, and that he had examined the formula of said bitters; that they were a good remedy for several enumerated diseases and as a tonic and invigorator equal to the best.

A letter from United States Commissioner of Internal Revenue was read in evidence, stating that it was the opinion of the commissioner that said bitters should be classed as medicinal for purposes of taxation under the internal revenue laws, and that when properly stamped, they might be sold without rendering the vendor liable to pay special tax as a liquor dealer.

The court found defendant guilty, and assessed his fine at the sum of $40, on the 25th of February, 1881. Motions for new trial and in arrest of judgment were filed in due time, and overruled by the court, whereupon the defendant made application for an appeal to this court, which was granted.

On the 19th of ...