'138
J'EDEBAL REPORTER,
vol. 42.
Nblt'/gent1(lmen, you must apply your own sound discretion and commonsense to the case, and detetmine it, in view ofwhat is conceded, upon the'tffi'ect'which 'you give the: testimony in the case upon the point 'which has 'been presented as the issue. Atlofficer :rnay be sworn. 'The'juryhaving found the defeMl\nt gUilty, a motion for a new trial was sUbsequently argued before the diStriet jUdge, the circuit judge sitting with him.upontberequl'st of thedefendant,upon alleged errors in tbe rejection of tt¥i,tiJP.pnYi,the rr.fusal to permit a test, and in the charge to the juC1. After full :the Illotion was denied.
(1)(Btrict
UNiTED STATES II. WHITE. Court, W, D. MicMgcm, S. D. ¥arcb9S,l890.)
'L
, to him by tJ.1e druggist, or the ,anthority which may fairly bepr8sumed from the bIstiiicttonsot tl:ie druggillt, or the COUI'lle Of dealing byhUIl.,with reference to suqh mat!'efll.,! ," ';, i · I ,L I!lAH8..... MBDI9INBS. " ', "' ' ' . , . In 'dlrt.ei'mlnmg' Whether sale. come within' that provit!lion of the
; PlOalea JIladebytbe ol,erk were madewitbin tbe scope ot
, 'A druggist is llable criminally tor-linautborized sales of'Uquor ,by bis clerk, if
It..v'BNUB-BALII
BY DRUGGIST-SPBCIAL TAL
delegated
L
SAHm-:-YBOJUN'IOAL
statut\jwblch,'allowl the use,of intOxicants in the ,oOIllPouncUllg of medioines, he is b,ia tested, bl hisgo!>Uaith. , , , ,
A druggist bu the l'ig'lit toulle alcohol1l1'the malrlngof a toilet preparation moh as,cologne;W!:l1he can 8uplogne toilet purpos,es; to put into alcohol IOmethlng 'else. for the mere purpose of modifying its 8S by placing 8 ,,&'Ib, lift,le!b&"r g ot,,:or som,e" ,Of the 'i,"gredi,e,nta 0" f oologne, into ',alO,OhOl, and selling " forW41Obanioal,purposes, illsmake-.hift wbtob the law,will not tolerate.
"
;""68, '{not a general question of good andll,.Pright.Ull8l!,'',in the tra,nsaotioP, of ,Ii., "man's Pllt. whllther the def,endant m!lke the sale or under circumstances whioh are probtbited by , ",' ':: .. ,
(SuU4bUa ''btl the: Oourt.)
'Indictment for Retailing,Liquors,without Paying the Special Tax. at Eaiton Rapids. " The -indictment charged ,Defendllnt: was ,sales of liquOr at various tiDies JromAprill, 1,887, to January, The evidence ,on the part of the government tended to show that, for a peritxi two yearSi been selling to a' dentist, ,aHrequentmtetvals, alcohol forjbtltning in a lamp, ;usedby the dentist . in :his business; The defense introduced testimony wndingto show ,tbattheiarticle sold to the dentist ,was cologne,or rather aloohol 'into "which bergamot,or some of the .ingredients of cologne, had been placed. , There was also testimony on the part of the govermoent'tending to show aales' of liquortnixed with small, ,quantities of glycerine, oil of cloves, 1 aDd> quinine., ' , i 1&:.9. P't:dmer,U·. S. Atty., MId P.W. Steven., Asst. U. B. 'Atty_ H. S. Maynard and F. A. Dean, for defendant.
UNITED STATES t1. WHITE.
139
SEVEREIi!S, J., (charging jury.) I instruct· you, as to the liability of the defendant for the sales made by his employes, that, if the sales made by his employes were made within the scope of the authority delegated by him to them, he would be responsible for such sales; but, if they mll.de sales without his knowledge and consent,and which were outside of and beyond the limits in which he permitted them to act, in the transaction of his business, he would not be liable for the sales made by such employes. In other words, a party is not criminally sponsible for the unauthorized acts of an agent. He is liable for the act of an agent where it is done within the scope of his employment, and within the scope of his authority. I mean the authority which may fairly be presumed from the instructions of the principal, or the course of dealing by him, with reference to 'such matters. I instruct Coming to the classes of sales shown by the you that, if those sales of whisky were made by the defendant for the bona fide purpose of making a sale of it, compounded with other materials, as 8 medicine, for a legitimate purpose, he is not liable for making such sales. The law permits druggists to use whisky in compounding medicines. In the exercise of that right and privilege, he is to be bound; and his conduct is to be tested by his good faith. If he combines whisky in good faith, with some other materials, for medicinal purposes, he is not responsible as a retail liquor dealer. If, on the other hand, he uses some other admixture or element to put with the whisky, .to make it go for something else, without having regard to the medicinal character or its medicinal purpose, then be is liable RS 8 retail liquor dealer, because the law would not permit a make-shift and sham to stand in the way. You must look to the substance of the thing itself, and its real essence and character. Coming to the other class of sales, I will adopt the rule that the defendant had the right to use alcohol in compounding it for the purpose of making a toilet preparation. He had. the right to comblrie alcohol with other materials for the purpose of making cologne, and he could sell it as cologne for toilet purposes. Here again, you will bear in mind that the same principle of good faith is to be applied that 1 have stated to you is applicable to the other sideo! the' case. The law would not' permit or tolerate" for an instant any such idea as that 8 man, knowing that he could not sell alcohol pure and simple, should put into it something else, knowing it was to be used for mechanical purposes, with the intent of modifying its character'to that extent that)t would not be purealcohol, and so sell it that way. That, also, would be a. make-shift which the law would not justify. But if,' confining the rule to the present case, this defendant compounded alcothe purpose of making cologne, which, as a hol with other materials toilet article, he sold for the purposes of such, he would not be liable.. But if he mixed any other ingredients with alcohol in 9rder to get around and avoid the provisions of the internal revenue law, and so fixed up something that could not be C1Illed "pure alcohol," and sold it as a compound, for the purpose of evading the law, then he would be liable.
140'
FEDERAL REPORTER, vol. 42.
Coming to the question of the good faith of the defendant, and his infuntion, did he intend to combine something with alcohol for the purpolle of making cologne, and selling it as cologne, or did he intend to put Ilome other article with the alcohol and sell it, not for the purpose of cologne, and to be used as cologne, but for mechanical purposes, with its character more or less changed. Something has been said with regard to the question of intention. Intention is not a general question of good conduct or any general question of uprightness in the transaction of a man's business. The question is whether the defendant intended to make the sale or sales which he is accused of making. Did he intend to make those sales under the circumstances which are prohibited by law? That is the intent we have to look after, and nothing else. . . Verdict. guilty. Motion for new trial subsequently denied.
UNITED
FRASER·
.(OltrcuU Court, D. South Carolina. April 16, 1890.) SMUGGLTN()--EVIDBNCE-POSSESBION OF SMUGGLED GOODS.
.
found. guilty.
him to explain his possession to the satisfaction. of the jury; otherwille, he will be
Where defendant is found in possession Of, smug/!,led goods, it is incumbent on
Indictment for Smuggling. John Wingate, Asst. Dist. Atty. a. $. Eillaell, for defendant. SIMONTON, J. The defendant, a seaman, is indicted for fraudulently iwpprting into the United States 1,600 cigars, smuggling them. You will decide from the evidence these facts: Was the defendant found in possession of these cigars? Were they fraudulently imported into the ,United States? Did the defendant fraudulently import them, or assist ip doing 80, or did he re9Elive, buy, or sell them, or in any manner fa<lilitate the transportation, concealment, or sale of these cigars, knowing that they were imported contrary to law? If you believe that defendant was found in possession of the cigars, and that they had been fraudulently imported into the United States, you are authorized to find him guilty, unle!ls he has explained his possession to your satisfaction. He need not, explain his possession, unless you believe that the dgars had been imported fraudulenUy,-smuggled. .