(77 South. 82)

#### HUMPHREY v. STATE.

(8 Div. 531.)

(Court of Appeals of Alabama.

June 30, 1917.

Rehearing Denied Nov. 13, 1917.)

1. Intoxicating Liquors ¡&wkey;126 — Sale by Druggists.

Acts 1915, p. 4, § 7, permitting a registered or licensed pharmacist to use alcohol in prescriptions or other medicines, the sale of which would not subject him to payment of the special tax required of liquor dealers by the United States, clearly manifests the legislative intent not to embrace within the prohibitive terms of the statute medicines authorized by and compounded in accordance with the formulas prescribed by the standard authorities, the sale of which would not subject the seller to the payment of the special tax required of liquor dealers by the United States.

2. Intoxicating Liquors &wkey;>126 — Sale by Druggists.

A druggist compounding essence of Jamaica ginger in accordance with the formula prescribed by “The Pharmacopoeia” and by “The United States Dispensatory,” and selling it as a medicine, *held*within the proviso of Acts 1915, p. 4, § 7, permitting a druggist to use alcohol in compounding medicines, the sale of which do not subject him to the payment of the federal liquor tax.

3. Intoxicating Liquors <&wkey;126 — Sale by Druggists.

• The lawful act of compounding, essence of Jamaica ginger in form which could hot be used as a beverage, and selling it in due course of business, could not be rendered unlawful by the conduct of a purchaser in diluting the medicine and taking it in excessive quantities and with excessive frequency whether as a medicine or as a beverage.

Appeal from Circuit Court, Madison County; R. C. Brickell, Judge.

J. D. Humphrey was convicted of violating the prohibition law, and appeals.

Reversed and remanded.

D. A. Grayson, Taylor & Watts, and Cooper & Cooper,, all of Huntsville, for appellant. W. L. Martin, Atty. Gen., and P. W. Turner, Asst. Atty. Gen., for the State.

BRICKEN, J.

The defendant was convicted of a violation of the prohibition law, and appeals. The evidence offered by the state shows that the state’s witness Harr frequently purchased at the defendant’s drug store in Huntsville the essence of Jamaica ginger, put up in three-ounce bottles. On some occasions, the medicine was sold by the defendant, on others by his clerks; that the witness Harr sometimes used it as a medicine in his family, and on occasions-he diluted it with water and drank it, and on one or more occasions the witness became intoxicated from drinking the diluted essence.

The undisputed evidence shows that the defendant was a graduate in medicine, and was a physician by profession; that he is and has been a retail druggist and a regularly licensed, registered pharmacist for 30 years, and that for many years he has owned and operated a retail drug store in I-Iuntsville, Ala.; that the essence of Jamaica ginger in question was compounded by him as such druggist, in due course of business, to be sold as medicine in his drug store, and was compounded in exact conformity to and in accordance with the formula laid down in “The Pharmacopoeia” and by “The United States Dispensatory,” both of which are universally recognized as standard authority by druggists and pharmacists. It was further shown that Jamaica ginger is a legitimate médical compound, and is so recognized by physicians as a family remedy, and is sold as a medicine by druggists generally; that the sale of the said essence of Jamaica ginger did not subject the defendant to the payment of the special tax required of liquor dealers by the United States; that it could not be used as a beverage as compounded by the defendant; and that the defendant in the instant case sold the Jamaica ginger to the prosecuting witness 1-Iarr as a medicine.

[1 -3] Section 7, Acts 1915, p. 4, provides:

> “That any retail druggist in this state who is himself a registered or licensed pharmacist, * * * may sell in the manner herein set out, pure alcohol for medicinal purposes only; grain alcohol to chemists and bacteriologists actually engaged in scientific work and for such purposes only, and wine to he used for sacramental or religious purposes only: *Provided that nothing herein contained shall prevent such druggist from using alcohol in the compounding of prescriptions or other medicines, the sale of which would not subject him to the payment of the special tax required of liquor dealers by the United States:*Provided, that regularly licensed and practicing physicians may purchase grain alcohol or pure alcohol in quantities of not more than one gallon at one time, from wholesale or retail druggists and may use the same in compounding and dispensing remedies in the practice of their profession only.”

The language italicized clearly manifests the legislative intent not to embrace within the prohibitive terms of the statute medicines authorized by and compounded in accordance with the formulas prescribed by the standard authorities, the sale of which would not subject the seller to the payment of the special tax required of liquor dealers by the United States. The defendant was clearly within the express terms of the quoted proviso, and, being within the law in compounding the prescription and selling the medicine in due course of business, his act could not be made unlawful by the conduct of Harr in diluting the medicine and taking it in excessive quantities and with excessive frequency, whether he used it as a medicine or as a beverage. Carl v. State, 87 Ala. 17, 6 South. 118, 4 L. R. A. 380; Long v. Holley, 177 Ala. 508, 58 South. 254; Kansas Liquor Cases, 25 Kan. 751, 37 Am. Rep. 285; Marks v. State, 159 Ala. 71, 48 South. 864, 133 Am. St. Rep. 20.

The court erred in refusing the affirmative charge requested by the defendant. .

Reversed and remanded.