The Pascagoula democrat-star. (Pascagoula, Miss.) 1878-1920, 1881-07-08
supreme Court Decision, April
Term, 1881.

M'>rfssiVpii W. "'ftts
Appeal from the circuit court o!
Grenada county, Hon. Samuel
Powell, Judge.
Appellants were convicted of re-
failing Without license. The opin.
ion is given IN full.
COOPER, j.
The appellants we're Indicted in
the circuit court of Grenada eoun.
IS for uulawfully selling yluous
and spiritnous liquors in less quan.
titles than one gallon.
The evidence showed that the
defendants sold, IN quantities OF
from pint TO quart, u compound
called Home bilters, which they
claimed WIS u proprietary medi-
cine, which, though containing al
roh0I, ii was lawful for them to
sill without obtaining license TO
retail under the provisions OF the
Code governing the retailing OF
vinols aud Spirituons liquors.
The evidence introduced by tie
defendants themselves showed that
the compound sold continued thirty
per cent. OF alcohol, aud that the
other ingredients we're water and
various barks and peelings, and
seed 0t trees, iluit and herbs: that
.he compound was sold as any
other merchandise, 20 be devoted
hy the purchaser TO such purposes
as he desired aud without Inquiry
hy the seller as TO the purpose Tor
which it WAS bought. The evidence
for the State showed that 1t Was
purchased by the States witness
because Of the alcobol II contained,
and was used by them for The pur,
pose OF procuring intoSication.
The court cliulged the jury, il
cfipct, fol The S,aIeihatifthe com
pound was intoxicating and was
sold By tie defendants us Il spirit
uous beverage, and not MS Il medi
clue, they o1glt to ilud the defen'
dant guilty: and for the defendants
it instructed the jnry that II they
believed the defendants sold the
compound in good faith MS hedi-
cine, aud not as Il beverage, they
ought to be acquitted, although 1t
contained viuous or splrituons
liquor sufficient to inloxlcate. And
thus we think fairly presented the
law OF the case.
| One authorized to sell medicines
ought not to be guilty OF Violating
/ the laws relative 10 retailing he.
cause the purchaser of a medicine
containing alcohol miSuses It and
bpcomes Intoxicated; but on the
other hand these laws caunot be
cvaded by selling as a beverage
Intoxicating liquors containing
drugs, balks or seed which bavt
medicinal qualities. The uses to
which the compound is ordinarily
put, the purposes for which IL i
usually bought, and It's effect upon
the system, are material facts FROM
which may be Inferred the inten
tion of the SELLER. Ii the other ia
gradients are medicinal, and tht
alcohol Is usrd either as meet $
sary preservalive or vehicle TO
thelh, aud if from all the facts ant
circumstances it appears that th'
sale is OF the other ingredients n
medicine, aud not Of the !iquo
as n beverage, the seller is lrotec
ted but it the drugs or roots ar
mere pretenees of medicines, shd
dows and devices, under which n
Illegal traffic Is to be conducted
they will be but shadows when ii
terposed for projection agalns
crihinal prosecutions
The Instructions refused by til
court on the application OF the ii
ttndants were Substantially give
in other Instructions, aud it Wa
not the right of the defendants
propound the same propositions
different phraseology. The IA
applicable to the defense sct u
ha'l been correctly aud suiiirientl
stated, and the court aid net err
refusing to charge in other hIl
gl,age the same ideas. Judsmei
! affirmed.
Fitzgerald & Whitfield, for a
!. prllants.
; TU. Catchngs, attorney genera
/. contra.
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