People v. Sharrar

Ostrander, J. Respondent was a druggist doing business at Alma, Mich. On the 2d day of October, 1908, one Simon Oberlin, a farmer who resided some five miles from Alma, delivered to the respondent a prescription signed by a physician of the city which called for 8 ounces of whisky containing 10 grains of quinine. Respondent filled the prescription, placing a label on the bottle bearing the number of the prescription and the name of the physician who prescribed, and delivered it to Oberlin. The local-option law (Act No. 207, Pub. Acts 1889) was in force in the county of Gratiot, in which the city of Alma is. Respondent was informed against for selling, giving, and furnishing to Oberlin this liquor; it being alleged that the said Oberlin was then and there a person who was in the habit of getting intoxicated, and the respondent then and there a druggist, etc., the information being laid under the local-option law. Respondent was convicted and sentenced to pay a fine and to be imprisoned. Upon the trial the circuit judge excluded evidence of the prescription, of the physician who gave it, and of the good faith of the respondent in filling the prescription, and the jury was instructed, in accordance with these rulings, that if they found that Oberlin was a person in the habit of getting intoxicated, the people had shown sufficient to warrant a verdict of guilty. The fact that the whisky and quinine was sold and delivered to Oberlin was admitted by respondent on the stand. The rulings of the court referred to and the charge present the meritorious question, which is properly raised by exceptions and by assignments of error. It is the contention of the people that, while the prosecution is properly laid under the act of 1889 (Bishopp v. Hillsdale Circuit Judge, 94 Mich. 462 [53 N. W. 1093]), [270] the respondent as a druggist was governed as to the sale of liquor by the provisions of the general law, and that under the general law a druggist who sells liquor to a person who is in fact in the habit of becoming intoxicated is not excused by good faith; that is to say, want of knowledge that the person is in the habit of becoming intoxicated, or by the fact that the liquor was sold in filling the prescription of a physician. It is a further contention that the addition of the quinine to the whisky in no way destroyed the intoxicating effect of the liquor, and that it is immaterial as affecting the question of the guilt of the respondent. Section 1 of Act No. 207 of the Public Acts of 1889 (2 Comp. Laws, § 5412) has this proviso: “ That the provisions of this section shall not apply to druggists, or registered pharmacists, in selling any such liquors under and in compliance with the restrictions and requirements imposed upon them by the general laws of this State.” Section 2 of the same act has this proviso: “That all sales of liquors by druggists, or registered pharmacists, in such counties shall be under the restrictions and requirements imposed upon them by the general laws of this State.” By the provisions of the general law it is unlawful for any person, except a druggist, to sell, give, or furnish any spirituous liquors to a minor, an intoxicated person, or a person in the habit of getting intoxicated (2 Comp. Laws, § 5391), and as to druggists, they are excepted from the penal provisions of the act when they sell liquors for chemical, scientific, medicinal, mechanical, or sacramental purposes only, and in strict compliance with law; it is unlawful for any druggist at any time to sell, furnish, give, or deliver any spirituous liquor to any person in the habit of getting intoxicated (section 5381). Persons in the habit of getting intoxicated are classed, in the statute, with intoxicated persons and minors who do not present a written order of parent or guardian. In construing this sec [271] tion of the statute, it was held, in People v. Curtis, 129 Mich. 1 (87 N. W. 1040, 95 Am. St. Rep. 404), which was the case of a sale by a druggist to a minor, that intent is not an ingredient of the offense, and that the statute imposes upon the seller the duty of ascertaining, at his peril, that he is selling to one whom the law permits him to sell to. Good faith being immaterial, evidence of it, such as the fact that a physician’s prescription for the liquor sold was presented by the purchaser, is immaterial. The prescription of the physician and the mixture prescribed and prepared are some evidence that the liquor was purchased and sold for medicinal purposes. We are of opinion, however, that the statute forbids, and was intended to forbid, sales of liquor by druggists to certain persons even for medicinal purposes. It was not denied — indeed, it was conceded — that the addition of the quinine to the whisky did not destroy the intoxicating effect of the whisky; but it is contended that it is a question of fact whether the mixture could be, or probably would be, used as a beverage. It may be conceded that whether a particular mixture containing alcohol is a medicinal compound — a medicine — and unfit for use except in medicinal doses, is generally a question of fact. Black on Intoxicating Liquors, § 8. We think no such question of fact is presented with respect to a mixture containing 10 grains of quinine and 8 ounces of whisky. It is common knowledge that it is neither impossible nor ancommon for such a mixture to be drunk, and that to one used to and desiring intoxicants the presence of the quinine does not prevent such use of the whisky as is desired. Such a mixture is without doubt an intoxicating liquor. It was not error to exclude testimony offered to prove that “no reasonable person would drink it as a beverage, or would drink sufficient of it to become intoxicated upon it.” Such testimony would present no proper test. Undoubtedly, testimony is always available to prove that no reasonable person will use whisky at all. Complaint is made that the court exercised no discretion [272] in imposing sentence upon the respondent; the ground of the complaint being that it was held that the statute required the imposition of both fine and imprisonment. The case of People v. Minter, 59 Mich. 557 (26 N. W. 701), is relied upon. The court did say, in pronouncing sentence, that he construed the language of section 16, Act No. 188, Pub. Acts 1899, as requiring the imposition of both fine and imprisonment. We are of opinion that the construction given was right, and that the discretion of the court, if sentence is imposed, is to be exercised with respect to the statute maximum and minimum. We find no error, and the conviction is therefore affirmed. Hooker, McAlvay, Blair, and Stone, JJ., concurred.