The State v. Raynolds

• Citation: 5 Kan.App. 515,47 P. 573
• Decision Date: 10 January 1897
• Docket Number: 115
• Parties: THE STATE v. ELMER L. RAYNOLDS
• Court: Kansas Court of Appeals

47 P. 573

5 Kan.App. 515

THE STATE v. ELMER L. RAYNOLDS

No. 115

Court of Appeals of Kansas, Northern Department, Western Division

January 10, 1897

January 10, 1897.

Appeal from Rooks District Court. Hon. Charles W. Smith, Judge. Reversed.

Judgment reversed and case remanded.

J. R Brobst, and W. B. Ham, for appellee.

M. C Reville, and S. N. Hawkes, for appellant.

OPINION

GARVER, J.

This was an action in which the defendant was charged, in three counts, with the unlawful selling of intoxicating liquors and was found guilty upon the second count. For a conviction upon this count, the State elected to rely upon a certain sale of liquor made by the defendant and testified to by Gatfield, the complaining witness. The record in the case is voluminous, and the rulings of the court complained of are numerous; but, with a few exceptions, the assignments of error are without merit. The evidence shows that the defendant was a druggist, and the proprietor of a drug store in the city of Stockton. Upon the trial, he admitted the sale upon which the State elected to rely for a conviction under the second count, but claimed that the article sold was a mixture of six ounces of whisky and two ounces of tincture of ginger; that it was sold for use as a medicine, and could not be reasonably used as an intoxicating beverage. The issue upon this count was, upon the trial, practically narrowed down to the one question: Was this mixture an intoxicating liquor, and of such a character that the defendant would be presumed to have known that it was reasonably liable to be used as an intoxicating beverage, and that it was, therefore, within the prohibition of the statute?

It is well settled that not every liquid containing intoxicating ingredients and capable of being used so as to produce intoxication, can be classed as an intoxicating liquor within the meaning of the statute. Where the liquid is a compound of several ingredients, or a mixture of liquors, it must be a compound or mixture which may be taken in sufficient quantities to produce intoxication, and which it is reasonable to presume may be used as a beverage, and as a substitute for the ordinary drinks. Intoxicating-Liquor Cases, 25 Kan. 751. And in any case, where the sale of such compound or mixture is charged as a violation of the Prohibitory Law, it is a question of fact for the jury, under the evidence, whether such sale is within or without the statute. In this case, this was, upon the evidence, a close question. A number of expert witnesses testified upon each side -- the testimony of one class tending to prove that the mixture could reasonably be used only as a medicine, and not as a beverage; the other class testifying that it was an intoxicating liquor which could be used as a beverage, in such quantities as to produce intoxication. We think, under the circumstances of the case, undue importance was given to the fact that the mixture contained a large percentage of alcohol, and was intoxicating. This being a fact not in dispute, the attention of the jury should have been directed more to the use which might reasonably be made of such liquor, and not so much to an exceptional use. Upon this point, as an additional instruction given at the request of the jury after they had retired to deliberate upon their verdict, the court said:

"If you find the liquor sold upon the prescription of Dr. Keigh was compounded of six ounces of whisky and two of tincture of ginger, then you are to say, under the evidence, whether or not it was an intoxicating liquor."

We think the court, in the same connection, should have qualified this...