United States v. Calhoun

39 F. 604, 1889 U.S. Dist. LEXIS 157

Opinion

Simonton, J.,

(charging jury.) The defendant, an apothecary, is charged with violating section 3242, Rev. St., being a retail liquor dealer without paying the special tax. It is not denied that he sold to the several persons, witnesses for the government, a compound of rye whisky and calisaya bark. The defense is that this was a medicine originally put up under a prescription of a physician. An apothecary who bona fide uses spirituous liquor exclusively in the preparation or making up-of medicines need not pay the special tax. These are the questions you must answer in this case: In the sale made by defendant to the witnesses for the government, did he bona fide sell them the compound as medicine, and not as a beverage, or was the compound simply whisky in disguise? Is it a medicine to cure disease, or is it intended to gratify the thirst for drink? If it is a medicine, has it intoxicating quality? If so, was this known to defendant? Did he sell it knowing or having reason to know that it was purchased to be used as a beverage? If it was sold bona fide as a medicine, to be used as a medicine, defendant is not guilty.