State v. Krinski

62 A. 37, 78 Vt. 162, 1905 Vt. LEXIS 96

• Court: Supreme Court of Vermont
• Decided: November 3, 1905
• Status: Published

Opinion

Munson, J.

The respondent Objected to the production of the articles found in his building, and testimony relating thereto, on the ground that the search in which the articles were seized was made upon an illegal warrant. The court held the evidence admissible, without regard to the legality of the warrant; and this was correct. Adams v. New York, 192 U. S. 585, 48 Law ed. 575. The respondent relies upon State v. Slamon, 73 Vt. 212, and Boyd v. United States, 116 U. S. 616, 29 Law ed. 746; but these cases, however regarded, are not controlling. There is a plain distinction between the seizure and production of papers which are not the basis of the charge and are merely of an evidentiary character, and the seizure and production of property kept for an illegal use.

The respondent objected to evidence regarding the Jamaica ginger, on the ground that evidence had already been introduced regarding- the finding of some alcohol. The State was not bound to' confine its evidence to1 the liquor for which it claimed a conviction. The finding of other liquors in the same place would bear upon the question whether the kind relied upon was kept for illegal sale.

The State was permitted to show that at the time of the search two men, under the influence of liquor, were wrangling over a bottle, during which wrangling the respondent came into the room. . It appeared further that this bottle was seized, and afterwards found to' contain only soda-water. This evidence was admissible as one of the circumstances of the search and seizure, and as tending to characterize the place and business.

The bottles purporting to contain Jamaica ginger were small, flat, flask-shaped bottles, and there was evidence that the officer found nearly 300 empty bottles of the same kind in the back room of the store. Dr. Wiltse, the state chemist, testified to the differences between the article seized and the standard Jamaica ginger, and stated further that there was a standard form of bottle put in the glass manufacturers’ catalogues fcr putting up the medicinal Jamaica ginger, and that, he had never seen it put up in bottles of the shape of those put in evidence. He was also permitted to testify under respondent’s exception that he never saw a bottle of the style and shape of these bottles used in a proper pharmacy, and that glass manufacturers put in their catalogues what they call a “ginger bottle,” of a different shape and style. It does' not appear that any question was raised as to the witness’ competency to testify upon this subject, and we think the matters testified to had a legitimate tendency to sustain the charge.

The respondent submitted several requests as to what constitutes a beverage, and excepted to the court’s refusal to comply therewith, and to its charge upon that subject; and now argues that the court erred in saying: “If this preparation * * is a beverage that is capable of producing intoxication, and may be used for that purpose, then it is prohibited.” But this sentence must be considered in connection with other parts of the charge. The court first took up the question whether this Jamaica ginger was a beverage within the meaning of the law. And in considering this question, after referring to the evidence in respect to- its being used as a beverage, the court said, in substance, that the law did not mean that it must be classed among liquors that are ordinarily used as beverages, but that it is sufficient if the liquid is one that can practically be used as a beverage, and be drunk for the purpose of intoxication; that if the preparation was a beverage capable of producing intoxication, and one that could be used for that purpose, then it fell within the list of intoxicating liquors, and the sale or keeping for sale was prohibited. The evident meaning of this is that a preparation of this/ kind may in some circumstances be classed with intoxicating liquors, and so come within the prohibition, although not ordinarily used as a beverage; and the remainder of the charge makes it certain that it must have been so .understood by.the jury.. For the court then proceeds to consider the purpose for which this article was kept; and states the"claim of the respondent to be that he kept it tO' sell for medicinal purposes, and not to sell as a beverage; and declares it to be the leading question in the case whether the respondent kept it with intent to sell it as a beverage; and directs the attention of the jury to the evidence upon one side and the other bearing upon that point. The court said further that if they found the respondent had made sales of this preparation to be used as a beverage‘for the purpose of intoxication, that would be a circumstance tending to show that the stock on hand was designed for the same purpose. Later, the court concluded a restatement of the case in these words: “The "important inquiry, I repeat, is, was it kept for the purpose of sale — with intent to sell it as a beverage.” It is clear that the respondent was not harmed by the sentence complained of, if the court was right in holding that the liquid in question could be made a beverage under the law then existing.

The respondent insists that it is the manifest purpose of the act of 1902 to exclude from the term “intoxicating liquor” all medicinal preparations, fluid extracts, and toilet articles, of which alcohol is the solvent principle, even though they contain more than one per cent, of alcohol. We think the act was not intended to effect any change of the law in this respect, and fhat State v. Kezer, 74 Vt. 50, is still applicable, as regards the purpose of the keeping or sale.

Judgment that there is no error in the proceedings, and that the respondent take nothing by his exceptions.