Yorkville enquirer. [volume] (Yorkville, S.C.) 1855-2006, 1882-03-23
Supreme Cnnrt 9eGisipu.
SELLING LIQUOR WITHOUT A LICENSE.
THE STATE OF SOUTH CAROLINA.
IN THE SUPREME COURT.
NOVEMBER TERM, 1881.
[Opinion by McGopan, Il. j.
The State, respondent, vs.. William Thorn
burg, appellant.

Opinion by McGouan, Il. j..
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The State, respondent, vs.. William Thorn
burg, appellant.
This was an indictment under the Act o1
December, 1880, for selling spirituous liquors
without license.
Eugene Lowry testified as follows:
son or about the 21st of this month, June
1881, l bought and paid for quart of whisky
from the defendant, William Thornburg. His
place is outside Of the town limits; outside OF
CORPORATION a short distance outside. 1t is in
this county, York. The defendant sold it tc
me, and paid him for it. have very sick
brother. His disease is consumption. The
doctor uses whisky in the treatment of broth.
er's case He told my father to send to Thorn.
burg's for whisky, because his whisky was bet
ter than any other he could get. Father sent
me for the whisky, and told ThOrnburg all
about what the doctor said and what the whis-
ky was wanted for, before gotit. Thornburg
owns government distillery outside the cor
porate limits. The whisky bought from him
was used strictly in the way for which it was
bought"
The Judge charged the jury that 'sthe Act
under which the indictment was found, con-
tanned no exceptions as to the use that might
|
the prohibition was absolute and without eX-
ception, against all selling outside of the cor
porated limits of a city town or village.
Hence, if they were satisfied that the sale was
made as alleged, it was no defence that the
whisky was bought for medical purposes, was
sold for such purposes, and that, in fact, it
was so used"
The jury found the defendant "guilty," with
recommendation to mercy. His attorney
moved for new trial, and in arrest of judg-
ment. The Judge refused both motions, and
he appeals to this Court upon the following
exceptions
I. For that his Honor charged the jury
that if it was found that the defendant sold
spirituous liquors without license, in the
county of York, outside of the corporate
limits of Yorkvlle, that would he sufficient
upon which to base verdict OF guilty.
II. For that his Honor charged the Jury
that the fact that the said liquor was sold for
the purpose of being used, and was in fact
used, only for medical purposes, did not con-
stitute legal defense.
III. For that his Honor charged the jury
that if they believed the facts as testified to
by the witnesses for the State, the same con-
stituted a violation of the Act.
w. For that his Honor did not grant the
motion for new trial upon the ground that
the testimoney was not sufficient to base
conviction upon under the Act.
V. For that his Honor did not grant the
motion in arrest of judgment upon the gr. und
that the testimony was not sufficient to base
conviction upon under the Act.
The Act of 1880, XVII Stat, 460, provided
as follows
SEC. I. That from and after the passage OF
this Act, no license for the sale of spirituous
or Intoxicating liquors shall be granted in
South Carolina, outside Of the Incorporated
cities, towns and villages Of this State, and it
shall be unlawful Tor any person or persons
to sell such liquors without license to do So
*--,*. -
SEC. ". Any person violating any of the
provisions of this Act, SHALL upon conviction
thereof, be fined in a sum of not less than two
hundred dollars, Oh imprisoned for term OF
not less than six months, or both fined and
imprisoned in the discretion of the Court
trying the case.
These provisions are positive and without
qualification of any kind, and we have no
authority to amend them or construe them in
such way, as in effect, to add the words: "Pro-
uided, This inhibition shall not include sale
to one who declares at the time that the liquor
SO purchased is intended alone for medical
purposes" Such construction would not only
disregard the plain and positive words, but
completely emasculate the Act and thereby
defeat the manifest intention of the Legisla-
ture.
We do not think that the case cited from
Kansas is analogous to this - Neither the title
or reference was given but as stated here, the
case involved only the question whether GER
tain compounds or tinctures containing alco-
hol as one of the ingredients, should be held
to be within the meaning of Section x of the
at 10 in, fhQcp words
liquors mentioned in Section of this Act, and
all other liquors and mixtures thereof, by what
ever name called, shall be considered and
held to be Intoxicating liquors within the
meaning of this Act" 1t seems that there
were three cases heard together. In one, the
article sold was ebay rum"; in another, it
was "a compound of achisky, tolu and ,cild cher
ny, prepared by q physician - and in the third,
it was a compound known as "Prickly Ash
Bitters," and the question was whether these
were such articles as fell within the meaning
| of the act.
Judge Brewer, in delivering the judgment
Of the court, said:
"It cannot be doubted but that Section ten
is broad and sweeping enough to bring within
the statute every liquid which, by reason Of
the presence of alcohol, will produce intoxica-
tion, and this irrespective Of the amount of
alcohol contained, or the presence of other i'll
gradients, of such a character as to prevent
any use of the liquid as beverage. But such
was not the intent of the Legislature.
The use of Intoxicating liquors as a beverage
was the evil and the statute must be read in
the light thereof. x
''Now the cases before us group themselves
into three classes. The first embraces what
are generally and properly known as intoXica-
ting liquors, unmiXed with any other subStan-
ces. Thus, in one case, the sale of brandy is
charged. The second includes articles equally
we'll known, standard articles, and which,
while containing alcohol are never classed as
Intoxicating beverages. Their uses are culin-
airy, medical or for the toilet. They are named
in the United States Dispensatory and other
similar standard authorities the formula for
their preparation are there given; their uses
and character are as well recognized and known
by their names, as those of horse, a spade,
or an arithmetic. The possibility of a differ
ent and occasional use does not change their
recognized and established character. A par
ticular spade may be fixed up for a parlor Or
nament, but the spade does not belong there.
So, essence Of lemon may contain enough of al
cohol to produce intoxicatiOn. 1t is
possible that a man may get drunk upon it,
but it is no Intoxicating liquor.
''Bay rum, cologne, paregoric, tinctures
generally, all contain alcohol :; but in no fair
or reasonable sense are they intoxicating liq-
uors, OF mixtures thereof Now in reference
to these several classes, We think these rules
may be laid down: The first class is ritlin
and the second Is withot the statute, and the
Court, as matter of law, may so declare. 1t is
unnecessary, in charging the sale of aclisky or
brandy, ETC., to allege that it will produce i'll
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