Village of Bolton v. Lewis, 194 Ill. App. 71 (1915)

May 1, 1915 · Illinois Appellate Court

194 Ill. App. 71

Village of Bolton, Appellant, v. Oliver Lewis, Appellee.

(Not to Tbe reported in full.)

Appeal from the Circuit Court of Williamson county; the Hon. W. W. Clemens, Judge, presiding.

Heard in this court at the October term, 1914.

Affirmed.

Opinion filed May 1, 1915.

Statement of the Case.

Suit brought by the Village of Bolton against Oliver Lewis for violating an ordinance of that village by selling intoxicating liquors. A trial resulted in a verdict finding defendant not guilty, and the plaintiff appeals.

The evidence showed that the defendant" had. been engaged in the drug business in Bolton about fifteen years; that defendant had within eighteen months prior to the filing of the complaint sold to the public generally, without prescription, in one and three ounce-bottles, tincture of ginger, composed of from ninety to ninety-five per cent alcohol and the balance ginger, which in its pure state was intoxicating, and that when it was diluted in water if taken in sufficient quantities it was intoxicating; that tincture of ginger is a medicine recognized in the United States dispensatory; that some persons who purchased it from the appellee used it medicinally and others as a beverage; that defendant had limited its sale to certain persons to a three ounce bottle per day, and that defendant had heard it rumored that certain persons were using it to excess as a beverage.

Denison & Spiller, for appellant; Jacob Hayes of counsel.

Neelt, G-allimore, Cook & Potter, for appellee.

* See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Harris

delivered the opinion of the court.

Abstract of the Decision.

1. Intoxicating liquors, § 130 ^* —burden of showing sales of tincture of ginger not medicinal. The burden is on the prosecution, in an action for violating an ordinance by selling as a beverage tincture of ginger, to prove by the clear weight of the evidence that sales were made by the defendant or his agents under such circumstances which the former, if acting in good faith, was bound to know that the purchasers intended to use such tincture as a beverage and not medicinally.

2. Intoxicating liquors, § 147 ^* —sufficiency of evidence to show sale of tincture of ginger as beverage. Evidence that the defendant was told five or six year$ prior to a prosecution for selling tincture of ginger as a beverage, that three persons were using it to excess, and that he had heard rumors to the same effect as to others, and that thereafter he refused to sell to them, does not prove knowledge that other purchasers bought it for unlawful purposes.

3. Intoxicating liquors, § 134 ^* —admissibility of evidence that purchasers were using tincture of ginger as beverage. In a prosecution for violating an ordinance by selling tincture of ginger as a beverage, evidence that five or six years before the seller was informed that three persons were using it to excess, and that he heard a rumor to the same effect regarding others, may be considered by the jury in connection with all of the other evidence, in determining whether the defendant made sales in good faith for medicinal purposes only.

4. Appeal and error, § 1411 ^* —when verdict on conflicting evidence sustained. Where there is a conflict in the evidence, a verdict will not be disturbed on appeal, although apparently against the weight of the testimony, if the facts and circumstances by reasonable intendment sustain ti^e verdict.

5. Intoxicating liquors, § 147 ^* —sufficiency of evidence to sustain verdict for defendant for selling tincture of ginger as beverage. The evidence held sufficient to sustain a verdict for the defendant in a prosecution for selling tincture of ginger as a beverage in violation of an ordinance.

6. Intoxicating liquors, § 131a ^* —evidence to prove sales of tincture of ginger to drunkard. Evidence that a person for whom tincture of ginger was purchased was a drunkard, is not admissible in a prosecution for selling such compound for use as a beverage in violation of an ordinance, where it does not appear that the seller knew for whom it was intended.

7. Appeal and error, § 1507 ^* —when repetition of objectionable questions not reversible error. A judgment will not be reversed because of the conduct of counsel in following a line of examination after objections have been sustained thereto, where the court is not of opinion that the verdict was affected by such improper conduct.