The Iola register. [volume] (Iola, Allen County, Kansas) 1875-1902, 1885-03-27

OF otherw1se 20 De prank on MS premises,
the increase of penalty by imposing a tine
and Imprisonment instead Of q fine or in
prisonmert and by q forfeiture of the right
to obtain q permit for the period of five
years. The increased penalties for subse-
quent o6enses are omitted.
Right here you further inquire: rs o
druggist, who was convicted under this sec
ton before am 9s,1a ana me, whose permit
ing sentence on such conviction, precluded
from the right to obtain permit for the PEI
riod of five yarsT
ton Of this section by any druggist fine or
imprisonment was imposted. and in addition
thereto the druggist forfeited his perm [.
For the second otfense there was an increased
fine, or Imprisonment, forfeiture of permit,
and forfeiture for the period of Ave years Of
his right to obtain q permit. and for the
third offense there was, with the other pen
forever.
The section as amended affixed
THE PENALTY OF FORFEITURE
of the right to obtain permit for five years
to the first offense. The penalty for the first
violation of the law Of ISL can not be in
creased by the law of 1885 A druggist con-
yicted and sentenced OF q first ofiense un-
obtain q permit IL that law had remained I'm
changed. He may. therefore, be granted a
permit now, Notwithstanding the change in
the law.
But druggists who, prior to the amendment
of the law. had been convicted of a second
offeuse or third offense, having already lost
the right to obtain permit for the period of
five years. or forever, are not relieved from
such penalty by the amendment and repeal
of the section under which it was imposed.
Section 10 of the act of 1881, defining what
shall he held to be Intoxicating liquors. and
section II of that act. relating to the duration
and renewal of permits of druggists and
manufacturers. are not amended or repealed.
ing: Does the law intend that prepared
medicines containing sufficient alcohol to in
toxicate, when sold in good faith as medi-
cines and not as beverages, shall be sold as
intOxioantS upon statement or prescription
and statement as in the case of hQuorsy"
The question depends upon question of
fact that can not be here determined. The
following quotation from the Intoxicating
liquor cases % Kan. I'll, will explain what
mean. .1f the compound or preparation be
such that the distinctive character and effect
of intoxicating liquor are gone, that its use
as an intoxicating beverage is practically i'm
possible by reason of the other ingredients
it is not within the statute. = On the
other hand II the intoxicating liquor remain
as distinctive force in the compound. and
such compound is reasonably liable to be
used as
AN INTOXICATING BEVERAGE,
II is within the statute" The element of
good faith I'm the sale does not avail the
druggist If the jury decide that the compound
falls within the last mentioned class. If the
druggist sells compounded medicines and
preparations containing alcohol without OBJ
the risk of the jury, to whom this question
must be submitted in prosecution for such
sale as a violation here CT finding this act
against him.
The amendments of the act of 1881 by the
act of 1885 do not weaken or overturn any of
the decisions of the Supreme Court constru-
ing the original act.
Section II of the act of 1851 is one of the
amended sections but the new section u
(section of the new law. is substantially
the same as the original section so far as it
goes. except that tho penalty for a violation
of its provisions is increased.
Section IL of the act of 1881 Is amended by
fhe section of the same number of the act of
1885 IN the new section all of the old section
is re-enacted with the difference that places
where Intoxicating liquors are kept for de-
livery are put under the head OF common
nuisances. and the word use" omitted from
the description of such places. The method
of abatement is explained. j. e.. Intoxicating
liquors found therein, together with all
signs. screens, bottles, glasses and ether
said nuisance" The penalty is increased by
the removal of the alternative of fine or i'm
prisonment and The imposition of both. The
latter part Of the new section relating to the
injunction against the maintenance of such
nuisancCS is new legislation.
Sections IA. 10. III. II. II, 10 and 20 of the act
of 1881 remain unchanged.
Section q of the act of 1881 is amended by
section IA of the act OF 1873. The changes
are that lit shall not be necessary to de-
scribe the place where sold. except in prose
cutIOnS Tor keeping anu
MAINTAINING A COMMON NUISANCE
or where Al lien is sought TO be established
against the place where such liquors were
sold" And that lit shall not be
in the first instance for the state
to prove that the party charged did not have
Il permit to sell Intoxicating liquors for the !
excepted purposes" and that mo person |
shall be excused from testifying touching |
any offense committed bv another against |
any of the provisions of this act by reason |
Of his testimony tending to criminate |
himself 1.-THE witness,. but the testimony |
given by such person shall in no case be |
used against him"
This is the last section of the act of 1851 |
y" =" d'rncti- amended and rero-Ind
Sections &, Q. 10, II, 12, Is, Is, II and IS Of |
the act of lss5 contain the new features of |
he law, except the minor novelties intro
iuCed in the several amended sections, and I
which have been fully referred to above.
Under Section you inquire: Are the ex-
amnations of the witnesses summoned by
he County Attorney to be public or privateY''
Being OK parte bearings, and the statute
not declaring otherwise. am of the opinion
hat it is In the discretion of the County At
Orney to conduct such examinations in pub.
ic or private rs may best advance
THE INTERESTS OF JUSTICE,
he County Attorney having power to exclude
I'll persons except the witnesses testifying if
ne sees mt.
Under section 10 you ask: what fee is
he County Attorney entitled to have taxed
Is costs in prosecution for violation of
he law committed prior to the enactment of
he law of 1sS but prosecuted, tried and
concluded subsequently therefor
L am of the opinion that he is entitled to
he fee provided by the new Law.
And AZ dnal question II is asked: do
he employees of express companies and
,ther common carriers violate any of the
provisions of this act by knowingly carrying
'r delivering Intoxicating liquors shipped
nto the State from points outside of the
state to individuals for their private useT"
II the liquors are consigned TO the individ.
ials to be paid for on delivery. the common
carrier and its employees are the agents to
complete the sale, and being sale in the
state for other than the excepted purposes
md by persons not authorized to make sales
or the excepted purposes, the employees are
violating the law and are sub
ect to its penalties. If the deliveries are
made by such employees to individuals to be
old in violation OF the law, such employees
re guilty of the offense prescribed by sec
ion Il of the act of 1885.
If the express Office is a place where in
oxicatinR liquors are kept for delivery in
of the law. it is declared by section
) of af the act of 1894. to be common nuis-
lie to n conviction of the ofrense of main
lining common nuisance, the penalty for
which is prescribed in the section last re-
erred to.
Information under section of the amended
aw will be sufficient If in the form used prior
o the amendment. although in cases where
lien is not sought TO be established against
he place where such liquors were illegally
old il shall not be necessary to describe
he place where sold. Persons who are
lot lawfully and in good faith engaged in
THE BUSINESS OF DRUGGIST
re brought within this section, and special
orms may be necessary to prosecute them.
Information under the nuisance section, in
he form used prior to the amendment with
he change of the word use" to delivery"
4 cases where the change is applicable will
e sufficient
Information under section for violations
I the law by persons having u permit by
Cling in manner or for purposes other than
he get provided. will be sufficient as used
nor to the amendment. In cases which
ONE within the ampliications of what shall [
OnStitute Ofenses under this section. a diff | ,