Commonwealth v. Lanides

Carroll, J. These two cases were tried together. The defendants were charged with keeping for sale intoxicating liquors without authority, license or appointment therefor. They owned a store in Fitchburg in which tobacco, cigars, candy and soda were sold. The jury were warranted in finding that on two occasions, on October 3, 1920, the defendant William Lanides, and on one occasion the defendant Charles Lanides, sold Jamaica ginger. Near the sink under the counter over which soda was sold, five bottles containing Jamaica ginger were found. A copy of the label on them is set out above. It was agreed that an analysis of the Jamaica ginger would show the percentage of alcohol appearing on the label. A chemist testified that Jamaica ginger was .made from a formula in the United States Pharmacopoeia and contained from eighty-seven to ninety-one per cent alcohol, and because of the large amount of alcohol contained in it, when drunk to excess, by itself or diluted with other liquors, would cause intoxication. Two witnesses testified that they had become intoxicated from drinking Jamaica ginger and had seen others become drunk from drinking it. A police surgeon who had observed the condition of persons intoxicated from the excessive use of Jamaica ginger, testified to the distinctive characteristics, not found in cases of drunkenness caused by drinking other alcoholic liquors; that a two ounce bottle of it contained as much alcohol as a quart of whiskey; and that thirty-five per cent of the cases of drunkenness observed by him during the last eighteen months resulted from drinking Jamaica ginger. There was further evidence that many persons arrested for drunkenness had on their person emptied or partially emptied Jamaica ginger bottles. All the evidence tending to show that Jamaica ginger was intoxicating liquor, except the agreement to the alcoholic content of the five bottles referred to, was admitted, subject to the defendants’ exceptions. They made certain requests for rulings of law which were refused. The bill of exceptions recites that the only question intended to be raised is this: “ Can the defendants be convicted as a matter of law without proof that they intended to sell Jamaica ginger as an intoxicating beverage or kept it for sale with such intention? ” [108] By R. L. c. 100, the sale or keeping for sale of spirituous or intoxicating liquors, except as authorized in that chapter is prohibited. By § 2, in addition to ale, porter, strong beer, lager beer, cider, wines and distilled spirits, any beverage containing more than one per cent of alcohol is intoxicating liquor, within the meaning of the statute. In Commonwealth v. Sookey, 236 Mass. 448, it was decided that we could not take judicial notice that extract of Jamaica ginger is an intoxicating beverage and generally sold as such. In the course of the opinion it was said at pages 451, 452: “In this jurisdiction, where licenses for the sale of intoxicating liquors have been granted under a local option system and there has been little occasion in many communities to resort to substitutes therefor, it has not become, as yet at least, a matter of common and general knowledge that ordinarily this well known preparation is sold not for medicinal purposes, but as a disguised substitute for liquor.” And it cannot now be assumed that as matter of law, Jamaica ginger is commonly used as a liquor for drinking, and therefore is an intoxicating beverage. It is a question of fact whether the preparation is a beverage, and if used extensively for such purposes and is intoxicating, a jury is warranted in finding that it is an intoxicating beverage, although it is called a medicine and is taken by many only for medicinal purposes. There was abundant evidence that Jamaica ginger was in general use as a beverage and as it contained more than one per cent of alcohol, the jury could find that the defendants kept intoxicating liquors for sale in violation of the statute. Under R. L. c. 100, if the defendants kept for sale intoxicating beverages or any preparation which, although commonly used as a household remedy, was intoxicating and was used to such an extent for drinking that a jury could say it was a beverage, the defendants’ intent in making the sale was entirely immaterial. If they kept it for sale and supposed it was to be used medicinally, this was no defence. A beverage containing more than one per cent of alcohol is intoxicating liquor, just as ale and beer, or brandy and whiskey, or distilled spirits are intoxicating liquor under the statute. Its sale is prohibited and it is no excuse in law that the seller believed it was not a beverage or an intoxicating liquor and did not intend to sell it for any purpose except to be used as a [109] medicine. Commonwealth v. Nickerson, 236 Mass. 281. Commonwealth, v. Boynton, 2 Allen, 160. Commonwealth v. Savery, 145 Mass. 212. Commonwealth v. Mixer, 207 Mass. 141. Commonwealth v. Sacks, 214 Mass. 72. “ In order to determine whether the statute applies to a sale, the true test is to inquire whether the article sold is in reality an intoxicating liquor. If it is, the sale is illegal, although it is sold to be used as a medicine, or it is attempted to disguise it under the name of a medicine, or it is a mixture of liquor and other ingredients.” Commonwealth v. Ramsdell, 130 Mass. 68, 69. The defendants rely on St. 1910, c. 172, and contend that under this statute the burden of proof is upon the Commonwealth to show that they intended to sell the Jamaica ginger as an intoxicating beverage. St. 1910, c. 172, provides that §§ 21 to 29 inclusive of R. L. c. 100, relating to licenses of the fourth and sixth classes, for the sale of intoxicating liquors by druggists and apothecaries, and R. L. c. 75, § 26, relating to the adulteration of drugs and their sale, and R. L. c. 213, § 2, relating to the sale of poisons, “ shall not apply . . . Eso far as material to this case]] to the sale in original packages of the following, if put up by registered pharmacists, manufacturers, or wholesale dealers in conformity with the Revised Laws, namely: — flavoring essences or extracts, essence of Jamaica ginger,” and other well known household remedies therein mentioned. In considering this statute, we assume that the words “ Jamaica ginger,” " extract of ginger,” and “ essence of Jamaica ginger ” are synonymous. St. 1910, c. 172, does not, however, authorize in any way the sale of intoxicating beverages. That is prohibited. R. L. c. 100. If the article sold is in reality ale or whiskey, or an intoxicating liquor under R. L. c. 100, whatever name may be given to it, the prohibition of the statute applies and the sale is illegal., Commonwealth v. Boynton, supra. Commonwealth v. Ramsdell, supra. Commonwealth v. Savery, supra. The intention of the dealer may be honest; he may have intended that the preparation is not to be used as a beverage, and he may suppose it was to be used as a household remedy; but this does not excuse him. The offence is not in the intention, but in the act. Commonwealth v. Mixer, supra. Commonwealth v. Sacks, supra. If the defendants sold or kept for sale an article used so extensively for drink [110] ing as to become a beverage, and containing more than one per cent of alcohol, the jury were warranted in finding them guilty. When such an article is kept for sale, the question to be decided is, is the substance an intoxicating beverage? If there is any evidence to show its common use as such, then the question is one of fact. A harmless preparation in general use for toilet or household purposes, and sold by merchants, does not become an intoxicating beverage within the meaning of the statute, because it is so used occasionally or in rare instances; but if there is evidence tending to show that the article is an intoxicating beverage, its sale is prohibited. The Legislature did not intend to stop the sale of articles which are not intoxicating beverages, but it did intend to stop the sale of spirituous and intoxicating liquor, and the fact that the preparation may be used as a medicine is no excuse for its sale, if it is in reality an intoxicating beverage prohibited by law. The evidence tending to show that the Jamaica ginger was an intoxicating beverage and was commonly used as such was admissible, and there was no error of law in refusing the defendants"' requests or in the rulings given by the presiding judge. Exceptions overruled.