Mercer,1 resembles Marmont v. State. To the same effect is Martin v. State.2

The decision in the case at bar is not to be governed wholly by any general definition of the words "sale" "or selling.' After the decision in Commonwealth v. Smith, the statute of 1875,3 was passed, which is the foundation of those provisions in the Public Statutes, under which this complaint was made. Nothing is contained in that act or in any subsequent acts which in terms relates to clubs until the statute of 1881,5 was passed. The provisions of the public statutes prohibiting the selling or exposing or keeping for sale of spirituous or intoxicating liquors, except those derived from statute of 1881,6 are similar to those contained in statute of 1868,7 which were construed in Commonwealth v. Smith. The statute of 1881 8 is perhaps broader in its terms than was necessary to accomplish its apparent purpose, because no doubt has been expressed that a selling of intoxicating liquors by a club to persons who are not members is an illegal sale under other statutes, unless the club is duly licensed to make the sale. The intention of this statute, however, plainly is to distinguish between clubs in those cities and towns whose inhabitants vote to grant licenses, and clubs in those whose inhabitants vote not to grant licenses, and unlicensed clubs n the former cities and towns are left to be dealt with under other statutes. It must be assumed that the decision in Commonwealth v. Smith was known to the Legislature at the time the existing statutes were passed. The inference is, that the Legislature intended that unlicensed clubs in cities and towns whose inhabitants vote to grant licenses must be dealt with according to the construction given by this court to statutory provisions similar to those in existing statutes prohibiting the sale, exposing, or keeping for sale of intoxicating liquors.

The ruling and instruction in this case seem to us to assume that this was bona fide a club; that the liquors were owned in common by the members; that they were furnished only to members; and that they were kept by the defendant as one of the members and as steward of the association. It does not appear in the exceptions in what manner new members were admitted, except that they paid an admission fee of one dollar, but we can not assume that any person could join the association at his pleasure, and the ruling and instruction are not put upon the ground that there was evidence that this was an association open to everybody at a price. On the assumption upon which we understand the instructions proceed, we think that, under the decision in Commonwealth v. Smith, it was not competent for the jury to find the defendant guilty. New trial granted.

LIQUOR LAWS-SELLING LIQUOR ON PHYSICIAN'S PRESCRIPTION DRUGGIST.

STATE V. WRAY.

[72 N. C. 253.]

In the Supreme Court of North Carolina.

A Druggist Selling Liquor to a Minor on a Physician's Prescription in good faith that it is to be used for medicinal purposes, is guilty of no offense.

SETTLE, J. The defendants being indicted for retailing spirituous liquors, without a license to do so, the jury rendered the following special verdict: "The defendants were druggists and partners in the town of Shelby, and kept medicines for sale, but had no license to retails pirituous liquors. In the month of July, 1872, Dr. O. P. Gardner, a practicing physician in the town of Shelby, prescribed the use of a half pint of French brandy for Mrs. Durham, the wife of the witness, Hill Durham, and directed the witness to go to the defendants for it; that Dr. Gardner also went to the defendants and directed them to let the witness have the said brandy for his wife as medicine. The witness then went to the defendants and purchased the half pint of French brandy, and his wife used it as medicine. That French brandy is a spirituous liquor; that it is also an essential medicine, frequently prescribed by physicians, and often used, and that in this case it was bought in good faith as a medicine, and was used as such."

The letter of the law has been broken, but has the spirit of the law been violated? The question here presented has been much discussed, but it has not received the same judicial determination in all the States in which it has arisen. In this conflict of authority we shall remember that the reason of the law is the life of the law, and when one stops the other should also stop.

What was the evil sought to be remedied by our statute? Evidently, the abusive use of spirituous liquors, keeping in view at the same time, the resources of the State. The special verdict is very minute in its details, and makes as strong a case for the defendants as perhaps will ever find its way into court again. A physician prescribes the brandy as a medicine for a sick lady, and directs her husband to get it from the defendants, who are druggists. It may be that a pure article of brandy, such as the physician was willing to administer as a medicine, was not to be obtained elsewhere than at the defendants' drug store. The doctor himself goes to the defendants and directs them to let the witness have the brandy as a medicine for his wife. And the further fact is

found, which, perhaps, might have been assumed without the finding, that French brandy is an essential medicine, frequently prescribed by physicians, and often used; and the farther and very important fact is established, that in this case it was bought in good faith as a medicine, and was used as such. After this verdict, we can not doubt that the defendants acted in good faith and with due caution in the sale which is alleged to be a violation of law.

In favor of defendants, criminal statutes are both contracted and expanded.1 Now, unless this sale comes within the mischief which the statute was intended to suppress, the defendants are not guilty; for it is a principle of the common law, that no one shall suffer criminally for an act in which his mind does not concur. The familiar instance given by Blackstone illustrates our case better than I can do by argument. The Bolognian law enacted "that whoever drew blood in the street, should be punished with the utmost severity." A person fell down in the street with a fit, and a surgeon opened a vein and drew blood in the street. Here was a clear violation of the letter of the law, and yet from that day to this, it has never been considered a violation of the spirit of the law. Perhaps it will give us a clearer view of the case if we put the druggist out of the question, and suppose that the physician himself, in the exercise of his professional skill and judgment, had furnished the liquor in good faith as a medicine. Can it be pretended that he would be any more guilty of a violation of our statute, than the surgeon was guilty of a violation of the Bolognian law? We think not. But we would not have it understood that physicians and druggists are to be protected in an abuse of the privilege. They are not only prohibited from selling liquor in the ordinary course of business, but also from administering it as a medicine unless it be done in good faith, and after the exercise of due caution as to its necessity as a medicine.

In

The sale of liquor without a license, in quantities less than a quart, is prima facie unlawful, and it is incumbent upon one who does so sell, to show that it was done under circumstances which render it lawful. this case we think such circumstances have been shown, and we concur in the judgment of his Honor, that the defendants are not guilty.

PER CURIAM.

Judgment affirmed.

1 1 Bish. Cr. L., par. 261.

LIQUOR SELLING-ACTS OF HOSPITALITY NOT WITHIN LAW.

ALBRECHT v. STATE.

[78 Ill. 510.]

In the Supreme Court of Illinois.

A Brewer who Gives Beer to a Person who comes to See Him at his house on business, is not liable under a statute as follows: "Whoever, by himself or his agent or servant, shall sell or give any intoxicating liquor * * * to any person intoxicated * shall for each offense be fined," etc., even though such person is under the influence of liquor.

BREESE, J. This was a prosecution, by indictment, in the Circuit Court of Bureau County against Jacob Albrecht for an alleged violation of chapter 43, Revised Statutes 1874.1 The title of the act in full is, "An act to provide for the licensing of, and against the evils arising from, the sale of intoxicating liquors."

The sixth section of the act provides as follows: "Whoever, by himself, or his agent or servant, shall sell or give intoxicating liquor to any minor, without the written order of his parent, guardian, or family physician, or to any person intoxicated, or who is in the habit of getting intoxicated, shall, for each offense, be fined not less than twenty dollars nor more than one hundred dollars, and imprisonment in the county jail not less than ten nor more than thirty days." The previous sections define: (1) Dram shops; (2) provides penalty for selling without license; (3) how license may be granted; (4) the form of the license, the rights under it, and how revoked for violation of the provisions of the act, or by keeping a disorderly or ill-governed house, or place of resort for idle or dissolute persons, or by allowing any illegal gaming in the dramshop, or in any house or place adjacent thereto; (5) provides for taking bond of the dram-seller, and how suit may be brought thereon. This statute is highly penal in its provisions, and is emphatically a penal statute, and, according to well recognized canons, must be construed strictly, keeping in view the great central object the Legislature had in view in its enactment and the evils to be prevented. The title of the act, in the revision of 1874, is "Dram Shops," and every section is leveled against them, with a view, not to their suppression, for they are licensed to sell intoxicating liquors, and pay large' sums of money into the town or county treasury for the privilege. The provisions of the act are aimed at such. What, then, under this view of the statute, should be the construction to be put on the sixth

section? Can it be, should it be, other than this: that whoever, keeping a dram shop, shall, etc.?

The leading facts in this case are: that the defendant was the owner and operator of a brewery, selling the manufacture by the keg or barrel to any one who wished to purchase, and for the privilege he became liable to pay to the government of the United States large sums of money demanded by the internal revenue laws, to be appropriated to the payment of our government debt. He kept no dramshop, nor did he sell his beverage by the small, to be drunk on his premises. One day about the last of July or the first of August, 1874, Charles Dewey, the person to whom it is alleged defendant sold or gave one or more glasses of beer, came to see defendant, who was then in bad health and nearly blind, lying on a lounge in his house, apart from his brewery, for the purpose of getting a renewal of a lease of some lots at Ohio station on which he had erected a hay press. He was accompanied by Mr. Kyle, an attorney at law, who was wanted by Dewey to draw the papers. When Dewey and Kyle reached the house, and found defendant in this condition, they also found Andrew Ross there, and Samuel Connor, the principal witnesses for the prosecution. Ross' business there, he being a preacher, was to aid Connor in purchasing some lots of defendant, and to see about the two lots on which Dewey had his hay press, for the purpose of building a mill upon them. Ross had talked about this with defendant when Kyle and Dewey came in. Dewey wanted to buy the lots, as it would be expensive to move his press, which had cost him eighteen hundred dollars.

Ross, in his testimony, says he supposes Dewey thought he was trying to get these lots, and he got mad and talked pretty loud, and was "a little boozy." Connor, on his cross-examination, says he wanted to buy some lots; Kyle and Dewey came in and went off together; Dewey was considerably excited; he thought he would lose considerable in moving his press, and was much excited at Ross. On his direct examination, he says Dewey seemed a little tight-was intoxicated; called for beer twice; some person went into another room and brought it out, and set the beer and glasses on the table, and all were invited to partake. Ross being a preacher, of course, declined, never having drunk intoxicating liquors. Connor never drank anything intoxicating, and never was drunk.

The opposing testimony of Kyle, Dewey and defendant shows quite conclusively Dewey was not intoxicated; that the beer was sent for to the brewery, and proffered by defendant to his visitors as an act of hospitality to neighbors and friends. Surely, it was not such an act as this the statute in question was intended to punish by imprisonment in the county jail. It has nothing of the odor of a dramshop about it, and