* Corpus Juris-Cyc. References: Criminal Law, 17 CJ., p. 203, n. 85. Intoxicating Liquors, 33 CJ., p. 597, n. 72; Intoxicating character of Jamaica ginger, see note in 48 L.R.A. (N.S.) 307; 15 R.C.L., p. 377; 3 R.C.L. Supp., p. 450; 4 R.C.L. Supp., p. 992. The appellant, Sam Brown, was indicted, tried, and convicted of an unlawful sale of intoxicating liquors, *Page 108 to-wit, Jamaica ginger, as a beverage; the sale alleged in the indictment to have occurred on or about the 24th day of July, 1925.
Briefly stated, the facts are these: The defendant was approached by Mayfield and Otis Speed, who were acting as prohibition officers at the time. They sought to purchase from Brown, the defendant, at his drug store, Jamaica ginger. Mayfield said to Brown, "I feel like throwing a drunk to-day and I want to do it on Jamaica ginger," and Brown laughed and said, "All right, right to the back." Thereupon Brown produced from underneath the counter in the rear of his drug store two bottles of Jamaica ginger wrapped in a paper sack, for which Speed paid him one dollar, fifty cents a bottle. At the same time Speed's partner, Mayfield, purchased from the defendant Brown two bottles of Jamaica ginger likewise; paid therefor the sum of one dollar. Late in the afternoon of the same day, they went back to Brown's drug store, one of the kind of drug stores that do not fill prescriptions, but in the main sell medicines already prepared, and Speed acted as if he were intoxicated to some extent, told Brown the "Jake" would make us drunk, told Brown they wanted some more "Jake," and again bought two bottles each in the manner as on the first occasion in the morning, on which occasion Brown said to the purchasers:
"If this don't fill the bill for you, I will sell you bottled `Alcobath,' and this will do the work."
To which Speed replied: "The Jake will make us drunk, and that is what we want; but we don't know much about Alcobath, so we would rather have Jake."
The defendant strenuously objected to the proof of the second sale, and moved the court also to require the district attorney to elect which one of the sales he would stand on, all of which was overruled by the court. Whereupon the defendant himself took the stand and swore that the Jamaica ginger was sold to the two witnesses Speed and Mayfield, just as detailed by them, and that the conversations *Page 109 reported by them which we have quoted above occurred as stated. But the defendant said further that he had been warned by a drummer friend that these prohibition agents were working in his neighborhood, that he knew their purpose in buying the stuff was not to use it as a beverage, and while they bought it under the circumstances they alleged, that he suspected they were detectives, and he thought it was their job to trick him, and "I just thought I would trick them back."
The court below instructed the jury that the defendant was guilty if he sold intoxicating liquors, Jamaica ginger, as a beverage, regardless of whether the purchaser thereof drank it or exhibited it as evidence, or whether the defendant in selling it as a beverage did so to trick the purchasers.
The defendant made no claim that he sold Jamaica ginger as a medicine. There were only two ways in which he could have sold Jamaica ginger in Mississippi — one as a medicine, the other as a beverage. If indeed he resorted to this method to trick the representatives of the law, the court has successfully turned "the trick" on him by imposing a fine of five hundred dollars and sentencing him to serve six months in the Simpson county jail, all of which we think is correct, in view of the fact that the defendant swore on the witness stand that he was guilty, and whatever may be the law as to proving more than one sale on the date alleged in the indictment instead of anterior to the date, the defendant has relieved us from the necessity of going into that question at this time, for under his own statement he is undoubtedly guilty of selling Jamaica ginger, an intoxicating liquor, as a beverage, and the defense of undertaking to trick those who are trying to catch him will not avail in this court.
Affirmed. *Page 110