Opinion
10-13-1911
STATE v. HASTINGS.
Josiah O. Wolcott and Frank M. Jones, Deputies Atty. Gen., for the State. Robert C. White and Daniel J. Layton, Jr., for defendant.
Levin Hastings was indicted for selling spirituous liquor, the same not being for medicinal or sacramental purposes. Verdict, not guilty.
Argued before WOOLLEY AND RICE, JJ.
Josiah O. Wolcott and Frank M. Jones, Deputies Atty. Gen., for the State.
Robert C. White and Daniel J. Layton, Jr., for defendant.
Indictment for selling spirituous liquor, to wit, Jamaica ginger, the same not being for medicinal or sacramental purposes (No. 27, June Term, 1911).
The facts sufficiently appear in the charge of the court.
At the trial the state proved the sale of three bottles of Jamaica ginger to one B., the same not being bought for medicinal or sacramental purposes, and that the said ginger was a spirituous liquor containing 95 per cent. alcohol.
State's Prayers.
(1) The seller of spirituous liquor is not absolutely bound to know that such liquor was being sold for medicinal or sacramental purposes, but he is bound to use all reasonable means for ascertaining the fact whether such sale is for such purposes. It is for the jury to determine whether the defendant used all reasonable means necessary under the circumstances to ascertain whether the sale was for medicinal or sacramental purposes, or otherwise. State v. Fahey, 5 Pennewill, 585, 65 Atl. 260.
(2) The defendant admits every allegation contained in the indictment, without this: He denies that he committed the act complained of unlawfully; on the contrary he contends that he committed the act lawfully, in that the sale was of the liquor in question as a medicine. In passing upon this contention the question for your investigation and determination is whether under all the evidence produced before you the defendant did exercise reasonable diligence to ascertain whether the liquor in question was being sold for medical use by the prosecuting witness. And this was a fact concerning which the defendant or his servant or agent might not inquire either carelessly or with indifference, for the statute in this case was enacted to prohibit all sales of spirituous, vinous or malt liquors unless for the purposes excepted by the statute. The vendor, his agent or servant, is bound to use all reasonable means to ascertain whether the person desiring the liquor is in fact purchasing it for medicinal or sacramental purposes, and if such a vendor sells spirituous liquor and the same is not sold for medicinal or sacramental purposes without due and reasonable effort to ascertain the fact so as not to defeat the very object and purpose of the statute, then he violates the act.
(3) In many cases, at least, a vendor of spirituous liquor would not meet the requirements of the act by simply asking a person applying for such liquor if he or she desires it for medicinal or sacramental purposes and relying upon an affirmative answer, make a sale to such person. For if nothing more should be required than to ask if the spirituous liquor were desired for such purposes and have such person answer in the affirmative, then the purpose of the act could be, and doubtless would often be violated. State v. Salkowski, 6 Pennewill, 472, 69 Atl. 839; State v. Blair, 72 Iowa, 591, 34 N. W. 432.
Defendant's Prayers.
(1) That the court instruct the jury to render a verdict of not guilty.
(2) That the court charge the jury that Jamaica ginger is not a spirituous liquor within the meaning and contemplation of section 11, c. 65, vol. 24, Laws of Delaware.
(3) That if the jury shall believe that the defendant sold Jamaica ginger, scientifically produced, their verdict should be "not guilty."
(4) That if the jury shall believe that the defendant sold Jamaica ginger, honestly believing it to be a standard drug, and sold it as a standard drug, and not as a beverage, the verdict should be "not guilty."
RICE, J. (charging the jury). Gentlemen of the jury: Levin Hastings, the prisoner, is charged in this indictment with selling, in this county, on June 11, A. D. 1911, spirituous liquor, to wit, Jamaica ginger, to one Arris Kinney, the same not then and there being sold for medicinal or sacramental purposes.
The indictment in this case is based on what is commonly known as the local option law, it being chapter 65, volume 24, Laws of Delaware, and approved March 21, 1907, which law in part provides: "It shall be unlawful for any person or persons, firm, company, association or corporation or the agent, officer or servant of any firm, company, association or corporation, to sell spirituous, vinous or malt liquors, except for medicinal or sacramental purposes" within certain districts in this state; Sussex county now being one of these districts.
The state produced evidence to prove that a clerk in the store of Levin Hastings, at Delmar, in this county, at that store on the 10th day of June, of the present year, sold spirituous liquor, to wit, Jamaica ginger, to Arris Kinney for purposes other than medicinal or sacramental.
The prisoner does not deny that a sale of Jamaica ginger was made at that place and at that time to Arris Kinney, but under the defense of not guilty he contends that the Jamaica ginger sold was not a spirituous liquor but was a medicine and that it was sold in good faith as such and therefore he is not guilty of the charge alleged in the indictment. To avail himself of this special defense he must prove it to the satisfaction of the jury.
The accused has requested the court to give the jury binding instructions to find a verdict of "not guilty." This we decline to do for reasons appearing later in the charge.
We will say to you that, if otherwise authorized, the accused had a right to sell Jamaica ginger, the same being a medicine, for medicinal purposes; but at the same time we say that he had no right in law to sell "Jamaica ginger," a spirituous liquor, even though it was a medicine, to be used as a beverage.
We find the law in this respect well stated in King's Case, reported in 58 Miss. 740, 38 Am. Rep. 344. The court in that case said:
"One authorized to sell medicines ought not to be held guilty of violating the laws against retailing, because the purchaser of a mixture containing alcohol misuses it, and becomes intoxicated; but, on the other hand,these laws cannot be evaded by selling as a beverage intoxicating liquors containing drugs, barks or seeds which have medicinal qualities. If the other ingredients are medicinal, and the alcohol is used as a necessary preservative or vehicle for them, if, from all the facts it appears that the sale is of the other ingredients as a medicine, and not of the liquor as a beverage, the seller is protected; but if the drugs or roots are mere pretences of medicines, shadows and devices under which an illegal traffic is to be conducted, they will be but shadows when interposed for protection against criminal prosecution."
In other words if from the evidence in this case you find that the Jamaica ginger sold by the accused to Arris Kinney was a spirituous liquor, then before you can convict in this case it is necessary for you to find that it was by him or his agent then and there sold with the intention that it be used as a beverage, irrespective of the subsequent uses to which the purchaser put it.
In determining this question as to the purpose for which the prisoner sold the Jamaica ginger on this occasion to Kinney, you are to consider all the evidence in the case, concerning the facts and circumstances surrounding the sale. It is your duty to take into consideration the amount sold to the purchaser at that time, any statements made by Kinney at the time as to the purposes for which it was to be used, as well as any actual knowledge the accused had as to the purpose for which it was to be used.
It would not be a sufficient defence in every case for a person accused of selling spirituous liquor, contrary to the provisions of the statute, to say that he has asked the purchaser for what purpose he was buying the same, and that the purchaser replied it was for medicinal purposes. For if such was the case the provisions of the law could easily be evaded by a person having a mind to do so.
A person selling spirituous liquor as a medicine in this county must make the sale in good faith as such, and it is necessary for him to use reasonable care and prudence to ascertain for what purposes it is to be used, and such legal duty is upon him.
There is some evidence in this case to the effect that the sale in question was made by a clerk in the store of Levin Hastings. In this connection we will say, that if the clerk, in the conduct of acting as agent for and selling the goods and wares of the accused, sells what is determined to be a spirituous liquor, contrary to the provision of the statute, with the authority or consent or under the direction of the accused, then the act of the clerk is the act of the accused, and he, the accused, is as criminally liable as though he himself made the sale.
A person charged with a crime is in law presumed to be innocent until he is by the evidence proved to be guilty to the satisfaction of the jury beyond a reasonable doubt, and the burden of proof is upon the state.
If you are satisfied from the evidence beyond a reasonable doubt, that the accused is guilty of the offence charged against him, within the interpretation of the statute as we have made it to you, your verdict should be guilty, while on the other hand, if you believe from the evidence that the defendant is not guilty, or entertain a reasonable doubt as to his guilt, your verdict should be not guilty.
Verdict, not guilty.