The Emporia weekly news. [volume] (Emporia, Kan.) 1881-1889, 1881-06-23

icating liquors, unmizel With any o:her
substances. Thus IN one case the sale Of
brandy is charged. The second in
cludes articles equally we'll known.
standard articles, and which, while con-
tanning alcohol. are never classed
as intoxicating beverages. Their
uses are culinary, medical or
for the toilet. They are
named in the United States dispensato-
ny, and other similar standard authori-
ties; the formula for their preparation is
there given their uses and character are
as well recognized and known by their
names as those of a horse, n spade, or an
arithmetic. The possibility of a differ
cnt and occasional use does not change
their recognized and established. charac-
ter. 4 particular spade may be fixed up
for a parior ornament, but the spade does
not belong there. So essence of lemon
may contain enough alcohol to produce
intoxication, more alcohol proportion
ately than many kinds of wine or beer
It is possible that Il man may get drunk
upon it, but it is no intoxicating liquor.
Bay rum, cologne, paragoric, tincturcs
generally, all contain alcohol, but in no
fair or reasonable sense are they intoxi-
eating liquors or mixtures thereof.
The third class embraces compound
preparations, in which the alcoholic
stimulant is present, which are not Of cs-
tabliShed name and character, which are
not found in the United States DISPENSE
tory, or other like standard authorities,
and which may be purely medicinal in
their purpose and effect, or mere substi-
tutcs for the usual intoxicating beverag-
es. If not intoxicating liquors they may
be mixtures thereof" within the scope
of the statute. Here belong many of the
patent medicines, the bitters, cOrdials,
and tOnics of the day. Here also are
such compounds us that charged in one
OF the informatiOns before us, com
pound Of whisky, tolu and wild cherry.
Now, in reference TO these several
classes, we think these rules NAV be
laid down. The first class is within and
the second without the statute and the
court as matter of law may so declare.
1t is unnecessary in charging the sale of
whisky, brandy, etc, TO allege that it
will produce intOXication, nor will it
bring the sale of essence of lemon with
in the statute TO aliege that such essence
viii produce intOXication. The court
Will take judicial notice of the uses and
character of these articles. You need
not prove what bread is or for what pur-
poses it is used. No more need you in
respect to whisky or gin on the one hand,
or cologne, or bay rum on the other.
They are all articles of established name
and character.
In reference to the third class, the
question Is one of fact and must be re-
| ferred to the jury. If the compound or
preparation be such that the distinctive
character and effect Of intoxicating liq-
uor is gone, that its use as an intoxicat-
ing beverage is practically impossible
by reason of the other ingredients, it is
not within the statute. The mere pres
| ence of alcohol does not necessarily
bring the article within the prohibition.
The influence of the alcohol may be
counteracted by the other elements and
the compound be strictly and fairly only
| a medicine. On the other hand, if the
intoxicating liquor remains as distinct.
| i've force in the compound, and such
| compound is reasonably liable to be used
| as an intoxicating beverage, it is within
| the statute, and this though il contain
many other ingredients and ingredients
| of an independent and beneficial force
in counteracting disease or strengthen.
| ing the system. intoxicating liquors OF
mixtures thereof. This, reasonably con
strued, means liquors which will intoXi
cate and which are commonly used as
beverages for such purposes, and also
any mixtures of such liquors as retain.
ing their intoxicating qualities, it may
fairly be presumed might be used as a
| beverage and become a substitute for tho
ordinary intoxicating drinks. Whether
| any particular compound or preparation
| of this class is then within or without
the statute is question of fact to be es
tablished by the testimony and detcrinin
ed by jury. The courts may not say
as matter of law, that the
-presence of certain per cent. Of
alcohol brings the compound
within the prohibition, or that any
particular ingredient docs or does not de
| story the intoxicating influence of Tho
| alcohol or prevent it from ever becom
ing an intoxicating beverage. OF course
the larger the per cent. of alcohol and
the more potent the other ingredient:
more probably does it fall within OIL
without the statute, but in each case the
| question is one of fact and TO be settled
as other questions offact. (State VS.
Lurler, 50 Iowa 1876; Russell VS. Sloan
IS Vermont 659; Cook VS.. Ramsdell
sup. ct. Mass, % Al. Law. Journal, p
| 414.l
Entertaining these views of the true
meaning sand construction of THU
statute the several cases before us mus
be disposed of as follows: In 2279 anC
| 9SO1s Ill WHICH ChSCS Tic uSlCIltldlL wa
charged with selling bay rum, tincturt
of gentian, and essence of lemon respec
lively, the judgment of the district cour
sustaining the motion to squash the in
formation will be sustained. In $3.50
2295 and 1896, in which the charge wa!
selling McLean's Cordial. preparation
OF whisky, toIu and wild cherry, anC
Prickly Ash Bitters, respectively the
ruling quashing the information will b.
reversed and the cases remanded fol
trial. In 1898 and 1894, in which thu
defendants were convicted of selling
brandy and alcohol respectively, the
judgments will be affirmed.
In these cases We have at the request
of counsel not stopped to consider any
mere technical or formal question, bu
have given our entire attention to- thu
more important matters of the validity
of this portion of the statute as q whole
and its general scope and extent Mat
tiers of form and detail will be disposed
Of as they shall from time to time b|
presented in subsequent cases.
All the Justices concurring.