was but a mere courtesy which this law was not designed to reach. If one invites his friends to dine with him, and generous wine, which cheers the heart, is pressed upon the guests, one of whom happened to be excited with wine when he came there, is the host to be incarcerated for giving to this most bibulous guest an additional glass? We do not think the statute should bear such a construction. The culture of the

grape is recommended by the moralist and the economist, and the expression of its juices into wine. Would it be held an offense, punishable by fine and imprisonment, should the vintner, from his wine press, fill a flagon and serve it to his guests in his own house, at his table? Where is the difference in a brewer presenting a tankard under similar circumstances? We can not believe this law was designed to punish such acts.

The testimony, we think, is quite sufficient to show Dewey, though highly excited at what he believed to be the interference of Ross to get these lots, was not intoxicated. He swears positively he had drunk, during the day, and before dinner, but three or four glasses of beer, and that he was not intoxicated in the slightest degree. There is not the slightest proof Dewey was in the habit of getting intoxicated.

A jury was waived in this case, and we think the finding of the court was against the clear preponderance of the evidence, and the case made was not one contemplated by the sixth section of chapter 43, title "Dram Shops."

The judgment must be reversed.

Judgment reversed.

LIQUOR LAWS-BUYER OF LIQUOR NOT PUNISHABLE.

HARNEY V. STATE.

[8 Lea, 113.]

In the Supreme Court of Tennessee, 1881.

Under a Statute Subjecting to Fine and imprisonment, the selling or tippling of intoxicating liquors in certain cases, the buyer of the liquor is not guilty of the offense.

APPEAL from the Criminal Court of Davidson County.

John D. Brien, for the defendant. Attorney-General Lea, for the State.

COOPER, J. The plaintiff in error was presented for, that he "did sell and tipple an intoxicating beverage within four miles of an incorporated institution of learning." The only witness examined on the

trial testified that the plaintiff in error bought of the witness a drink of whiskey within four miles of the Vanderbilt University, admitted to be an incorporated institution of learning. The trial judge charged the jury that if they found that the plaintiff in error had bought a drink of whiskey within four miles of the University, he would be guilty as charged in the presentment. The jury found him guilty, and he has appealed in error from the judgment rendered on the verdict.

The act of 1877,1 under which the presentment was found, provides that it shall not be lawful for any person to sell or tipple any intoxicating beverage within four miles of an incorporated institution of learning in this State, and that any person violating the act shall be guilty of a misdemeanor. A tippling house is a place where spirituous liquors are sold and drunk in violation of law. Or, as defined by this court under our statutes, a place where spirituous liquors are sold, without license, in less quantities than a quart, or in any quantity to be drank at the place.3 The word tipple in the act of 1877 means to sell to be drunk at the place of sale. The question is, therefore, squarely presented whether, as the trial judge charged, the person who buys liquor sold contrary to the provisions of the act is equally as guilty as the seller, and punishable under an indictment which charges. him as the seller.

The general rule undoubtedly is, that in misdemeanors all who are in any manner concerned, if guilty at all, are principals, and may be proceeded against accordingly.4 And, under a statute which forbade the sale of liquor by a slave this court sustained an indictment against a white man for buying liquor from a slave, which charged him with aiding, abetting and encouraging the sale.5 The learned judge who delivers the opinion says that, upon general principles, the purchaser of spirituous liquor in violation of the statutes passed to suppress tippling is as much guilty of violation of the law, and as much amenable to criminal prosecution and punishment, as the seller. And there can be no doubt, upon the strict principles of the law carried out to their logical result, that the statement is warranted. But it is easy to see that, in the particular case before the court, the condition of the vendor as a slave might well induce the court to consider the penalty of the act as directed against the white man who enticed him to sell. And the practice has never prevailed in this State, under the ordinary statutes against tippling, to extend the punishment to the purchaser. "No such prosecution," to borrow the language of Chief Justice Shaw upon the same

1 ch. 23.

2 Bouv. L. Dic. sub voce.

3 Dunnaway v. State, 9 Yerg. 350; Lander

line, v. State, 2 Hun, 315.

4 Curlin v. State, 4 Yerg. 143.

State v. Bonner, 2 Head, 135.

question in Massachusetts," has been attempted within the knowledge of the court, although a similar law has been in force almost from the foundation of the government, and thousands of prosecutions and convictions of sellers have been had under it, most of which have been sustained by the testimony of the buyers." The chief justice admitted that it was difficult to draw any precise line of distinction between the cases in which the law holds it a misdemeanor to counsel, entice or induce another to commit a crime, and where it does not. But he thought that the principle might be limited to offenses which are mala in se, in contradistinction to mala prohibita or acts otherwise indifferent than as they are restrained by positive law. And the court held that the buyer was not indictable under a statute which prohibited the sale of liquors.1

Mr. Bishop, while conceding the general principle to be as laid down in the State v. Bonner, finds that it is not rigidly applied to the lighter misdemeanors, because of the smaller degree of blame in volved in the offense or the special terms of the statute creating it. "If," he says, "the terms of a statute distinctly limit the penalty to persons who participate in the act only in a certain way, those terms furnish the rule of the court. Or, if the expression is general, but the offense is of minor turpitude, and especially if it be only malum prohibitum, the courts, by construction, will limit its operation to those persons who are more particularly within the reason or the express words of the enactment. The same idea is a little differently expressed by Smith, J., in delivering the opinion of the Supreme Court of New Hampshire upon the question now being considered. In cases of mala prohibita, the fact the penalty is in terms imposed upon only one of two parties whose concurrence is requisite to the commission of the offense, and that the statute was made for the protection of the other party, who is generally regarded as the less culpable of the two, has repeatedly been considered good ground for giving the statute a construction exempting the party not named from criminal liability." 3

2.

One main object of the statute under consideration was to prevent the sale of liquor to the young students at the educational institutions of the State. Laws having the same object in view have long been on our statute books.4 The Legislature could scarcely have intended that these young boys, who might be thoughtfully led into temptation, should be visited with the heavy punishment of the statute under consideration, a fine of not less than $100 and imprisonment of not less than one month. They were intended to be protected, not punished by the statute. If,

1 Commonwealth v. Willard, 22 Pick. 476. 2 1 Bish. Cr. L., sec. 657.

3 State v. Rand, 51 N. H. 361.

4 Code, secs. 4862, 4863.

moreover, the buyer is equally guilty with the seller, he can not be compelled to testify to a violation of the law, and almost the only means of punishing the offense at all will be cut off.

For these reasons, we think his Honor erred in his charge, and reverse the judgment.

LIQUOR LAWS-WHAT ARE INTOXICATING LIQUORS- QUESTION OF FACT.

STATE v. Biddle.

[54 N. H. 379.]

In the Supreme Court of New Hampshire.

Whether Ale or Cider is an Intoxicating liquor is a question of fact, and not of law. LADD, J. Whether ale and cider are intoxicating liquors, depends. upon whether or not those beverages, being drunk, produce intoxication. That is, the question is as to the effect those liquors produce upon the human system when taken into the stomach. In chemistry, two inorganic substances are brought together, and the result noted. This is called an experiment. The result, which is nothing more than a manifestation of a law of nature, under certain conditions, is a fact. By the careful and patient observation of a great number of experiments of this sort, a great number of facts are obtained. The wonderful forces that lie concealed in inanimate matter are thus brought to light, and with the discovery of each new fact the elements are brought more and more into subjection to the will of man, and turned to his use. Courts, charged with administering the municipal law, do not generally undertake to determine these facts of science, notwithstanding they may be universal, and may rest upon the laws of nature, which are at once universal and immutable. Experts are brought in for that purpose, and the testimony of experts is addressed to the jury.

So, in the science of medicine, a priori, the effect of a given substance, when taken into the stomach, could hardly be foretold, I suppose, by the simple exercise of reason. The knowledge of the physician, as well as the chemist, comes largely from experiment. The physician must know, not only the effect which inorganic simples produce, one upon another, but also what effect they may be expected to produce upon the organism of his patient. Whether ale or cider produces intoxication, may be learned in the same way, that is, by experiment. Any person who has seen and observed a number of such experiments

may, as a witness, state the result of his observation to the jury. Any person who has performed the experiment himself may also testify to the knowledge gained in that way; but the witness in both cases is doing nothing more than stating a fact. The question is, fundamentally, a question of fact, and there is no conceivable view in which anything else can be made of it.

There are undoubtedly laws of nature, the existence aud operation of which courts, as well as other persons endowed with ordinary intelligence, assume. Some of the laws of light, some of the laws of heat, some of the laws that govern falling bodies in their descent to the earth, some of the laws of hydraulics, are matters of such constant observation, experience and knowledge that no one would think of requiring them to be proved. Such knowledge on the part of the jury is assumed, in the same way as it is assumed that they possess consciousness, memory and reason. Yet such common knowledge does not convert what is essentially matter of fact into matter of law. The moment we go beyond the range of common experience and common knowledge in our investigation of any of the laws of nature, we enter the domain of science; all the difference is, that, while one set of facts is known and acted on by all men, the other may be known only to a few who have devoted much time and study to that particular subject.

If it were known with absolute certainty that all fermented ale and cider invariably produce intoxication, it would still remain a fact that they are intoxicating liquors, just as much as though the matter were in dispute and the evidence conflicting. Does a fact, ascertained to be universally true, thereupon become part of the law of the land?

In Nevin v. Ladue,1 Chancellor Walworth, to show that ale was within the terms of a statute of New York prohibiting the sale of "strong or spirituous liquors" at retail without a license, examines the history of that beverage from the remotest antiquity. He shows that it was in universal use among the Egyptians in the earliest times, its invention being ascribed to Osiris, the Bacchus of that ancient people, and holds that the "strong drink," spoken of in the Scriptures, was a liquor produced by the fermentation of grain in water, and that, as the vine did not flourish in Egypt, it probably was onios kristhinos, or barley wine, that Joseph gave to his brethren on their second visit to that country to buy corn, when they drank largely and became intoxicated, as the Hebrew text clearly indicates; or, in the language of our translation, drank and were merry with him. He quotes Heredotus and Xenophon, Tacitus and Diodorus, Siculus, Tertullian and Ovid, the learned president, De Goquet and Pliny, Hebrew

13 Denio, 437