tain conditions of the contract on the part of the plaintiff. The jury were instructed that, if there had been such a breach on the part of the plaintiff, the defendants were entitled to a; verdict. The evidence excluded had no bearing whatever upon the issues which were finally submitted to the jury. . The motion for a new trial is denied.
UNITED STA'rES v. WILSON. (District Court, E. D. Missouri, E. D. May 20, 1895.) 1.
CRIMINAL LAW-SELLING LIQUOR WITHOUT LICENSE-WHAT ARE LIQUORS.
The'term "domestic distilled spirits," as used in the law requiring retail liquor dealers to pay a special tax to the United States before engaging in the business, does not include patent or proprietary medicines, manufactured and sold, in good faith, for curative or health-imparting properties, although they may contain a large percentage of distilled spirits as one of their essential ingredients; nor does the fact that men with strong appetites for drink occasionally buy such preparations, and by the use of them become drunk, furnish any adequate reason for classifying them as distilled spirits.
2. SAME-DECEPTIVE NAMES.
The Jaw, however, is not to be evaded by mere deceptive names, and it alcoholic beverages in which the essential ingredient is distilled spirits, disguised by aromatic or other drugs, are commonly bought and sold as and for intoxicating beverages, the same are not to be classed as patent or proprietary medicines, by whatever names they may be known, and the seller thereof is liable to the tax as a retail liquor dealer.
Indictment for carrying on business of retail liquor dealer without having first paid special tax.
It apneared by the facts in evidence in this cause that the defendant was carrying on a general merchandise business, such as usually conducted at country stores. In addition to the usual stock of groceries, dry goods, agricultural implements, etc., he sold patent or proprietary medicines. Among the latter were preparations of the Donnell Manufacturing Company known as "Donnell's Empire Tonic Bitters." These latter were sold by tbe bottle. in the orIginal package as put up by the proprietor. Each bottle contained about 13 ounces of liquid. Of this, 21 / 6 ounces was alcohol. f)4h ounces distilled water, balance consisting of various barks. roots, drugs, flavors. and sugar. On each bottle a printed label was pasted, giving the name of the article, the ,arious diseases for which it was supposed to be a specific, and dOSe! in which it was to be taken. The testimony on tile part of thf! United States was that, while the defendant had sold by the bottle. in the original package or bottle, as received by him from the compounder, his customers had sometimes opened the bottles in his store, and drank from them on the premises, and that in some cases the same effect had been produced on persons using it as if they had drank whisky; that the preparation contained from 17 to 20 per cent. absolute alcohol, and was drunk as a beverage by some purchasers, to the knowledge of defendant. On the part of the defense, evidence was introduced tending to show that the preparation was a genuine medicinal preparation; that it was put up by the manufacturers in accordance with It prescribed formula. which they had followed to.r over 25 years, and sold by them to dealers as a medicinal preparation or patent medicine. Testimony ot physician!,! and. of chemists was also introduced, tending to show that the preparation contained no more alcohol than necessary to preserve the various drugs, etc., in solution, to prevent fermentation, and make the mixture palatable; that less alcohol present in the preparation would have rendered it liable to speedy fermentation, and that it was a useful tonic and alterative. The
UNITED STATES V. WILSON.
defendant had not paid special tax as a retail liquor dealer. It was also in evi· dence that the Donnell Manufacturing Company, compounders of the preparation, had been in business for over 25 years, putting up these bitters and other preparations, and had never been required to pay special taxes as rectifiers, compounders, or wholesale or retail liquor dealers. At the conclusion of the testimony and argument of counsel on the law and the facts, counsel for defendant asked the court to charge the jury as it had charged in the .Jreviou9 case of U. S. v. Holley,l tried before the same court 10 days previously. The Court: "I will give substantially the same charge in this case that I previously gave at your request in the Holley case."
W. H. Clopton, U. S. Atty., and W. S. Anthony, Asst. U. S. Atty., for the United States. Geo. D. Reynolds, for defendant. PRIEST, District Judge (charging jury). The federal law requires all retail dealers of liquor to pay a special tax before engaging in that business. The defendant in this case is charged with a violation of that law,-that is, for selling by retail, liquor in less quantity than five gallons. The law itself defines who are retail liquor dealers. It says that every person who sells or offers for sale foreign or domestic distilled spirits, wines, or malt liquors, in less quantity than five gallons at the same time, shall be regarded as a retail dealer in liquors. The proof in this case shows the sale of no other liquor by the defendant in less quantities than five gallons, at the time charged in the indictment, than "Empire Tonic Bitters," prepared by Donnell & Co., and commonly referred to as "Donnell's Bitters;" and it is claimed by the government that this preparation comes within the definition of "domestic distilled spirits." Domestic distilled spirits, as used in the law just quoted, . does not include patent or proprietary medicinal preparations manufactured and sold in good faith for curative or health-imparting properties, although they may contain a large percentage of distilled spirits as one of the essential ingredients of the preparation. The law, however, is not to be evaded or juries to be deceived by mere names which may be added to or used to designate a certain preparation composed in the essential parts of distilled spirits. If alcoholic beverages, in which the essential ingredient is distilled spirits, in the formcurrentIy known as alcohol or whisky, disguised by aromatic or other drugs, which are evidently mere substitutes for whisky or other forms of distilled spirits, are commonly sold and bought as and for an intoxicating beverage, then such preparations are not to be classed as patent medicines or proprietary medicines, no matter by what names they may obtain circulation and credit. If, on the other hand, it appears from the evidence that the quantity of alcohol employed in the preparation of them is not greater than is necessary to extract the virtue of the medicinal herbs used, and to hold the same in solution, and that the articles are put up, advertised, and sold by the manufacturers as medicinal preparations, and they possess, or at least in good faith are believed to possess, curative properties, or are promoti ve of good health, then they should be classed as medicinal preparations, and not as distilled spirits, and the dealers in the same
See note at end of case.
are not retail liquor dealers within the meaning of the federal statute; nor does the fact that men with strong appetites for drink occasionally buy such preparations, and by the use of them become drunk, furnish any adequate reason for classifying them as distilled spirits. If a preparation is not intended as a beverage, but is put up in good faith as a medicinal preparation, and is only advertised and sold by the manufacturer as such, and there are reasonable grounds for believing it possesses curative or health-giving qualities, and no more spirits are used in the preparation than are reasonably , necessal'i to extract and hold in solution the medicinal properties of the various drugs included, such preparation is medicinal, and does not lose its character as such, although it is intoxicating when used to excess. If, therefore, you find that the articles sold by the defendant were patent or proprietary medicinal preparations, then you should find the defendant not guilty. The article in controversy was, as it was in the actual bottle or package put up and sold by the manufacturer, either distilled spirits or a proprietary medicine. If it was distilled spirits,-that is to say, alcohol or whisky being the chief component part,-and only disguised by the presence of medical drugs when put up and sold by the manufacturer, then the defendant is liable to the tax as a retail liquor dealer, if he sold it, provided he knew that it was intoxicating, and was bought and used as a beverage, and not for any medicinal properties supposed to be contained in it; but if it was, when manufactured or compounded, a proprietary medicine, put up and sold by the manufacturer in good faith, and was sold by the defendant ill! the original package by the bottle, with the manufacturer's label on it, containing directions for using it, the article did not lose its character as a proprietary medicine, and the defendant, in selling it, did not become a retail liquor dealer, and is entitled to a verdict of not guilty at your hands. . It only remains for me, gentlemen of the jury, to call your attention to another principle of law, always of value in criminal cases: That is that the burden of proof rests upon the state, and that proof must go to the extent of convincing your understanding Qf the truth . of the claims in the indictment beyond a reasonable doubt. In other words, if you have a reasonable doubt as to any element necessary to constitute the offense with which the defendant stands arraigned, it is your duty to give him the benefit of the doubt and return a verdict of not guilty.
Verdict, not guilty. NOTE. On May 10, 1895, case of U. S. v. Holley, above referred to, waR tried before the same court and a jury, and with the same counsel. The facts in it were practically the same as in the case of U. S. v. Wilson, except that the testimony of the government showed that on one occasion a gang of laborers had come into tI1e store of the defendant, bought several bottles of the Empire Tonic Bitters, drank them on the premises, and had become intoxicated. Charge in this case practically the same as ahove, with a few verbal alterations. Verdict, not guilty.
UTICA FIRE-ALARM TEL. CO. V. MUNICIPAL
& POLICE TEL. CO.
TEL. CO. et al. v. MUNICIPAL FIRE & POLICE TgL. CO. et al.
(Circuit Court, D. Massachusetts. June 12, 1895.) No. 381.
P ATENTS-INFIUNGE)fENT-FIRE-AT,A HM BOXES. The Palmer patent, No. 220,088, for an improvement in nonlnterferlng fire-alarm boxes, cannot, In view of the prior art, as shown particularly In the Pond and Chester patents, Nos. 188,182 and 164,425, respectively, be construed as extending to all mechanism which performs the main functions effected by the devices described in claims 4 and 5.
This was a bill in equity by the Utica Fire-Alarm Telegraph Company and others against the Municipal Fire & Police Telegraph Company and others for infringement of a patent relating to firealarm boxes. Richard H. Dyer, for complainants. James J. Storrow, Jr., and Frederick P. Fish, for respondents. CARPENTER, District Judge. This is a bill in equity to rl!strain an alleged infringement of letters patent No. 220,088, issued September 30, 1879, to Augustus H. Palmer, for improvement in nonintprfering fire-alarm boxes. The claims alleged to be infringed are as follows:
"4. In combination with the carriage, A, the spring-barrel, spring, and pinlever, p, rod, 1', and armature, s, whereby the armature Is positively raised and held to the magnet until the circuit is renewed, substantially as set forth. "5. In combination with the rectangle-bar, U, and bent rod, 1, the rod, m, thumbscrew and jam-nut, Z, and armature, s, whereby the rectangle-bar is held from engagement with the signal-rack, and a positive noninterference obtained with all the other boxes of the circuit, substantially as shown and described, and for the purposes set forth."
The device employed by the respondents can be held to infringe this patent only by construing the two claims here in controversy to cover all mechanism which performs the main functions performed by the devices described in those two claims. Shortly stated, these are as follows: The device covered by the fifth claim causes the armature of the noninterfering mechanism to fall entirely out of the field of influence of the magnet which holds it in the normal position of the apparatus, while the device covered by the fourth daim mechanically replaces the armature within the same field of influence, by the automatic action of the motor mechanism which drives the system as a whole. These main functions, however, are performed in the mechanism shown in several earlier patents. I refer particularly, with respect to the fifth claim, to the patents to Pond, No. 188,182, and to Chester, No. 164,425, and, with respect to the fourth claim, to the Chester patent, above named. I therefore conclude that the respondents do not infringe, and that the bill must be dismissed.