258 SUPREME COURT OF ARKANSAS, [36 Ark, Foster v The State FOSTER V THE STATE, LIQuoR Selling medicated, without license The proportion of liquor to the other ingredients in a compound, is mainly, if not solely, to be considered in determining whether the compound is such a medicated liquor as can not be sold without license, under the liquor law of March 8, 187g [The compound in this case was "Fitzpatrick's Bitters," and held from the evidence to be within the act, —REP1 - APPEAL from Lee Circuit Court: Hun: j. N. CI FERT, CirLuit Judge: C. B, Moore, Attorney General, for appellee The proof shows that the article sold comes within the spirit and meaning of the act of March 8, 1879, secs. I and See Pccmph, Acts, pp, 33, 34, 35: HARRISON, J. G. F. Foster was indicted for selling without license, a preparation of ardent spirits, known as Fitz-patrick's Bitters, and was convicted and fined two hundred dollars: He moved for a new trial upon the ground that the conviction was against the evidence, which was refused, and he excepted and appealeit The selling of the bitteis was proved as charged, and it was admitted that the defendant had no license. It was proved by the defendant that the bitters was compounded according to the following formula Fluid extract of gentian 2 d rachms: Fluid extract of cinchona 2 drachms. Fluid extract of columbo 2 drachms_ Fluid extract of cardeman seed i drachm: Essence of orange peel 4 dradmis: Simple syrup 4 drachms Water 4 ounces: Cologne spirits 16 ounces: Making in volume, a total of 2 / 8 ounces
36 Ark.] NOVEMBER TERM, 1880. 259 Foster v The State That the Cologne spirits are distilled spirits, and are 74 per cent, of proof spirits. That the Cologne spirits and the extracts alone have no decided medical effect in the preparation, and that 58 per cent, of it is proof spirits. That it is manufactured as a medicine, and the drugs from which the extracts are made, and the extracts themselves, are known to materia medica, and in common use by physicians, and that it has preventive, stinmlant and tonic properties, and the prescribed dose is a wineglassful. One witness, a physician, testified that the ingredients of which the preparation is composed, are inconsistent with its use as a beverage, and that nausea would follow from its excessive use before intoxication ; ! but another, also a ph y sician, testified that he had drank it as a substitute for whisky, and as a beverage ; and it was proven that if the water and s y rup were eliminated, no spirits would be necessary for the preservation of the other ingredients. the extracts containing suffcient proof spirits for that purpose Section r, of the act of March 8, 187o, under which the indictment was found, is as follows "[Section T . That it sh a ll not hereafter be lawful for any person to sell any ardent, vinous, malt or fermented liquors, in this state, or any compound or preparation thereof, commonly called toitics, hitters, or medicated liquors in avv quanta l , or for any purpose- whatsoever, without first procuring a license from the county court of the county in which such sale is to be made, authorizing such person to exercise such privilege provided, manufacturers of ardent, vinous, malt nr fermented liquors, can sell in original packages, without license ; provided, further, that said original package shall not contain less than five gallons.- We held in Wood v. The State, 34 Ark„ 341. that a druggist, who had no license to sell ardent spirits, is prohibited
260 SUPREME COURT OF ARKANSAS, [36 Ark, by the above section from selling whisky under the prescription of a physician, or for a medical purpose. That the bitters sold by the defendant are a preparation of ardent spirts or medicated liquor, the evidence places beyond question ; and if not such as the legislature intended to regulate the sale of, we are unable to conceive the class or kind of preparations of ardent spirits or medicated liquors that is meant: If the proportion of whisky or ardent spirits to the other ingredients in the compound, is to be considered, and we think that should be mainly, if not solely regarded, in determining its character, the bitters or preparation sold bv the defendant is manifestly within the language and spirit of the statute. The judgment is affirmed:
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.