Defendant was convicted of the crime of bootlegging. She was charged with selling "one pint of alcohol." She made a motion in arrest of judgment or, in the alternative, for a new trial. The motion was denied and defendant appeals from the order denying the motion and from the judgment.
The testimony of the state's witnesses tends to show that on June 12, 1923, two prohibition agents met the defendant in a room in a hotel in the city of Fargo, and purchased from her a pint bottle containing a liquid described as "alcohol mixture." The bottle was delivered by the agents to one Cruden, a prohibition official, who kept it until the preliminary hearing before the magistrate. The bottle was alleged to have been sold to one Carter in the presence of Wright, another prohibition agent. Both officials testify, in substance, that the defendant came to their room in the hotel about 7:30 in the evening, delivered the bottle to Carter, and received $5 in payment. The state called one Hallenberg, a druggist, as an expert witness. His qualifications are admitted. He testified that he had analyzed the contents of the bottle and found 94 per cent alcohol, 3 per cent water and 3 per cent acetone. One of the state's witnesses says he tested the substance, to determine whether it was water. Casually and incidentally he refers to the contents of the bottle as alcohol. There is no specific or direct testimony in the record either that the contents of the bottle were intoxicating or that the liquid therein was fit for beverage purposes, as delivered or in diluted form. The expert, called *Page 770 for the sole purpose of proving the nature of the liquid, testified, in general, that it was unfit for beverage purposes because of the presence of acetone. He says that the liquid is "not alcohol," or "not straight alcohol," but "is a mixture-alcohol," or a "compound mixture." He further testifies that alcohol mixed with acetone may be sold without paying a tax and that the government authorizes a sale of the same to be used "for body rub." Interrogated by the Court, the witness testified "it is an alcohol mixture, I could hardly describe it in any other way."
While the defendant assigns several errors, the principal contention is that the state failed to prove that the compound or mixture was fit for beverage purposes. It is urged by the defendant that the mixture is not "alcohol," within the meaning of that term as used in § 1, chapter 268, Sess. Laws 1923; that it is a compound within the second class enumerated in that section and following the clause "in addition thereto;" that, therefore, it was incumbent upon the state to prove, not only an alcoholic content of 1/2 of 1 per cent or more, but also that the mixture was fit for beverage purposes, within the rule laid down by this court in State v. Schuck, 51 N.D. 875, 201 N.W. 342. The contention of the state, on the other hand, is, and the holding of the trial court was, that the liquid is alcohol, within the statute, and that the presence of 3 per cent of acetone does not take it out of the first part of the act and bring it within the classification of a compound; and, being alcohol, that its fitness as a beverage and its intoxicating quality are presumed. The court did not instruct the jury upon this precise question, merely saying, in substance, that if they found, beyond a reasonable doubt, that the defendant sold alcohol to the officers, as alleged in the information, she was guilty of bootlegging.
The only question is whether there is evidence sufficient to support the verdict in view of the offense charged and the testimony of the state's expert, the only witness testifying on the subject, that the liquid in the bottle is an alcohol mixture, or compound, which, if consumed in any substantial quantity, would produce serious physical disturbances because of the presence of an ingredient foreign to the substance, known to science and to the trade as alcohol.
The defendant is charged with selling "alcohol." The burden is on the state to prove beyond a reasonable doubt, that the contents of the *Page 771 bottle sold was alcohol within the meaning of that term as used in § 1, chapter 268, Sess. Laws 1923. Notwithstanding the liquid is ordinarily wholly unfit for beverage purposes, the state dispenses with other proof than that it is alcohol, because that substance may be diluted and rendered both potable and, of course, intoxicating. The sole question is whether the mixture described by the state's expert witness is alcohol.
Section 1, chapter 268, Sess. Laws 1923, is set forth in full in the majority opinion and need not be repeated here.
The term "alcohol" has never been defined, judicially or by the legislature, in this state. By § 104, Regulations of the Treasury Department, effective May 1, 1924, alcohol is defined as "that substance known as ethyl alcohol, hydrated oxide of ethyl, or spirit of wine, from whatever source or process produced, having a proof of 160 degrees, or more, and does not include the substance commonly known as whisky, brandy, rum or gin."
In Eureka Vinegar Co. v. Gazette Printing Co. (C.C.) 35 Fed. 570, it is said:
"Courts are bound to take notice of the meaning of words in the English language, and of such matters of science as are well known to all men of common understanding and intelligence."
In State v. Giersch, 98 N.C. 720, 4 S.E. 193, the court says:
"Alcohol, this essential element in all spirituous liquors, is a limpid colorless liquid. To the taste, it is hot and pungent, and it has a slight and not disagreeable scent. It has but one source, the fermentation of sugar and saccharine matter. It comes through fermentation of substances that contain sugar proper, or that contain starch, which may be turned into sugar. All substances that contain either sugar or starch, or both, will produce it by fermentation. It is a mistake to suppose, as many persons do, that it is really produced by distillation. It is produced only by fermentation, and the process of distillation simply serves to separate the spirit — the alcohol — from the mixture, whatever it may be, in which it exists."
In the Encyclopedia Americana, edition of 1918, vol. 1, page 346, the text writer says:
"Unless otherwise qualified, `alcohol' is understood to mean the liquid known to the chemist as `ethyl alcohol' and to the trade as *Page 772 `grain alcohol,' or `spirits of wine.' It is colorless and inflammable, burning with a flame that is intensely hot but almost non-luminous. Most of the alcohol used in the arts is produced by the fermentation of sugars or starches."
In Webster's New International Dictionary, 1923 ed., alcohol is thus defined:
"A colorless, volatile inflammable liquid, C2H5OH, one of the products of vinous fermentation and contained in wine (hence called spirit of wine), beer, whisky, and the other fermented and distilled liquors, of which it is the intoxicating principle; also, loosely, any liquor containing it. Alcohol is obtained chiefly from potatoes, and various grains, esp. maize, by a process of brewing followed by fractional distillation. Even when repeatedly rectified it still contains water, which can be removed only by continued treatment with some dehydrating agent, such as quicklime. The absolute alcohol so obtained boils at 78.3 degrees C., and it has a specific gravity of 0.763. Its odor is very penetrating. Commercial absolute alcohol contains about one per cent of water. It is used only for special purposes. As used in the U.S. `Pharmacopoeia,' alcohol means a solution of 91 per cent by weight of ethyl alcohol and 9 per cent of water; anddiluted alcohol (proof spirit), 45.5 per cent by weight of alcohol and 54.5 per cent of water."
Reference to the statute, § 1, chapter 268, Sess. Laws 1923, supra, shows that the legislature had in mind the well-known fact that alcohol is the intoxicating principle of certain beverages; that these were deemed not to be embraced within the term "alcohol" as used in the law. In other words, alcohol in certain combinations ceases to be such and becomes brandy, whisky, rum, gin, beer, etc. Again, in other combinations it may become "a spirituous, vinous, malt or fermented liquor . . . and compounds," that may not be sold if containing one half of one per cent, or more, of alcohol and if they be "fit for use for beverage purposes." If a liquid be a medicated or proprietary compound, within the statute, it is not alcohol notwithstanding that substance may be its principal ingredient. Neither is beer, brandy, rum, gin, etc., enumerated in the class of liquors presumed to be intoxicating, alcohol, within the contemplation of the statute. The sale of "alcoholic compounds" is expressly prohibited. Section 2, chapter *Page 773 268, supra. We may not presume that the legislature committed tautology. Having declared alcohol presumptively intoxicating, the statute specifies certain combinations containing alcohol and puts them also under the ban. The lawmaking body essayed no definitions of alcohol, but by necessary implication set it apart as a substance separate and distinct from enumerated combinations in which it is the intoxicating principle. That the term was used in the only conceivable definite sense, that of science and the trade, cannot be doubted.
After careful consideration I have come to the conclusion that by the word "alcohol," the legislature meant a liquid which the chemist knows as "ethyl alcohol," and the public or the trade as "grain alcohol" or "spirit of wine." Such is the only testimony on the subject in the case at bar. According to the testimony of the chemist, the liquid known as alcohol contains alcohol and water with no other ingredients. He testified, that, according to the "official Pharmacopoeia issued by the United States government" there are three kinds of alcohol, viz., commercial alcohol, containing 94 per cent alcohol and 6 per cent water; absolute alcohol, containing 99 per cent alcohol and 1 per cent water; and diluted alcohol, containing 50 per cent water. It would seem clear that the legislature, in using the term, intended a substance susceptible of reasonably precise definition, and therefore, meant to use it either in the scientific or the trade sense, i.e., "ethyl alcohol" or "grain alcohol." When alcohol is mixed with other ingredients it may cease to be "alcohol" and become something else. Alcohol in certain combinations — wine, beer, etc., and mixtures and compounds — is expressly dealt with in the statute; the statute is penal and should be definite in so far as it defines what shall constitute a crime. Should we hold that the legislature did not intend to use the term in the scientific or trade sense, the uncertainty and confusion that would result cannot be foreseen. If ethyl or grain alcohol — the "alcohol" of science and of the trade — may contain a substantial admixture of ingredients which are wholly foreign without losing its character as grain alcohol, the result would be confusion worse confounded in the law of intoxicating liquor. Science has drawn the line that divides alcohol from other liquids; and the trade has accepted the conclusion of science in this respect. I am unwilling to attribute to the legislature an intention to use this term otherwise than in the accepted scientific *Page 774 sense when all must confess inability to define it without introducing uncertainty and chaos. If 3 per cent of acetone may be introduced without destroying the character of the liquid as alcohol, why may not other distinctive ingredients be added? Then, if the liquid contained 20 per cent instead of 3 per cent acetone, it will still be alcohol. And if others might be added, we should have compounds or mixtures which no informed person, using the language with accuracy, would recognize or speak of as alcohol. What percentage of and what foreign substances may be introduced before the mixture ceases to be alcohol? The question suggests the sea of trouble and confusion that lies ahead should we hold that the legislature meant any other substance than alcohol in the trade or scientific sense.
What is acetone? In vol. 1, Encyclopedia Americana, p. 84, acetone is thus described:
"A limpid, mobile liquid with a taste suggestive of peppermint, Formula, CH3COCH3. It occurs in crude wood-alcohol, from which it can be separated by distilling over calcium chloride. It is also obtained by the destructive distillation of acetates, notably those of barium and lead. It occurs in the urine, blood and brain of calcium diabetic patients. Lieven's test for acetone in the urine is as follows: Distilled urine is made alkaline by caustic potash and a few drops of a solution of iodine and iodide of potassium are added. If acetone is present a yellow precipitate of iodoform is formed at once; if alcohol be present in the distillate, the same reaction takes place, but more slowly; but with acetone the reaction is immediate. Acetone is very inflammable and burns with a white smokeless flame. It boils at 133°F. at ordinary atmospheric pressure; its specific gravity at ordinary temperature is about 0.800. Acetone is a valuable solvent for scientific and technical purposes."
The state's expert says that it "has the property of dissolving all fats, oils and greases. It takes it out of everything that it comes in contact with. Even out of the lining of the stomach." Again he says that the mixture is "somewhat similar to a `body rub.'" Acetone is one of the ingredients of wood or methyl alcohol. Crude wood spirit contains it in substantial quantities. The witness says that "it would hardly be fit for body beverages with these ingredients in it. The government has recommended it as being a formula. It can be sold *Page 775 without a tax, but is not fit for beverages." In one of the formulae of the United States government acetone is given as one of the ingredients of completely denatured alcohol. McFadden, Prohibition, pp. 1033, 1034. It is impossible, I think, to escape the conclusion that acetone is a distinct chemical, and, in the quantity present in the liquid in question, is wholly foreign to the substance known in chemical science or to the trade as alcohol. It may be true that microscopic traces of acetone are occasionally found in alcohol, but that is not the situation here.
It does not follow that the presence of any foreign substance or ingredient, no matter how trifling, or what its nature, necessarily destroys the character of alcohol as such. All the expert evidence here shows that acetone in any substantial quantity is not only foreign to "alcohol," but that it is a solvent which renders the compound unfit for use as a beverage. The fact that men may drink the mixture in ignorance of its true character, and take a chance that premature death may result as a logical probability, does not make the liquid alcohol within the meaning of a statute that does not declare it a violation of the prohibition law to sell knowingly a compound that may in fact be wholly unfit as a beverage, e.g., wood alcohol, when the seller knows that the purchaser thinks it is potable and intends to drink it. Other penal statutes may be violated, but not the statutes under consideration in this case.
It must also be noticed that the defendant is here charged with the specific offense of selling alcohol; she is not charged generally with selling intoxicating liquor for beverage purposes. Had the information against her, alleging the offense of bootlegging, as defined in chapter 194, Sess. Laws 1915, averred that she sold intoxicating liquor for beverage purposes, in violation of chapter 268, Sess. Laws, 1923, an entirely different question would have been presented. Section 2 of chapter 268, supra, expressly recognizes "alcoholic compounds" and prohibits their sale "for beverage purposes . . . or under circumstances from which the seller may reasonably deduce an intention on the part of the purchaser to use the same for beverage purposes." No such charge is made against the defendant.
The testimony which the majority opinion finds sufficient to support the verdict, appears to me to be wholly shadowy and indefinite. It *Page 776 was not responsive to the question asked; it was incidental and volunteered. It was not regarded by the state or the defense as worthy of any weight or consideration. In due time and at the proper stage in the proceedings the state proved by an expert chemist who had made an analysis of the liquid that the contents of the bottle was not alcohol. On this testimony the state rests its case. In my opinion there was a total variance between the crime charged and the one proved. She was informed against for selling alcohol; under this information proof of the sale of alcohol would be sufficient to convict. The law declares it presumptively intoxicating and fit for beverage purposes. The State proved that an alcoholic mixture or compound was sold; under the statute, in such a case the evidence must also show that the compound is fit for beverage purposes. The expert said the compound here involved was not fit for beverage purposes. I cannot conceive of a clearer case of legal variance.
It seems to me that the state failed to prove the crime charged, and that the judgment appealed should be reversed. Under the Constitution and the laws of this State a defendant is entitled to be informed of the charge against him. This is a right which it is the duty of this court to maintain inviolate. In the case at bar, we may all be convinced that the defendant is guilty of an offense against the prohibition law; it is none the less our duty under the law when the offense charged has not been proved by the state, to say so. No other rule, on the one hand, safeguards the constitutional rights of persons accused of crime, or, on the other, fully confines the courts within their proper sphere.
BIRDZELL, J., concurs in dissenting opinion. *Page 777