The points made in this case will be considered in their order on the record.
1. There was no error in the admission of the .'testimony of Charles T. Stanton; that he had called on the defendant and asked him to give up the sale of liquor and that he had refused to do so. His testimony tended to show an admission of the defendant that he kept liquors for sale in his establishment. Adulterated liquors were found there as part of the stock. The two facts in connection were proper evidence for the jury to receive and weigh, in determining the question whether the adulterated liquors were or were not kept there for sale.
*423■ 2. The testimony of the witnesses to the effect that men and hoys, and a great many, had frequently been seen going into the defendant’s store and coming out much intoxicated, and also that there were decanters on the shelves, and that people had been noticed standing at the counter as if drinking, was also admissible as tending to prove that liquors were kept and sold there. That was one of the facts which it was proper and competent for the state to prove by any circumstances from which an inference of the fact could be drawn. The circumstances which the state offered to prove were such as ordinarily and notoriously indicate the fact sought to be proven. It cannot with truth be said that they did not tend to prove it.
3. The defendant requested the court to charge in substance, that unless the jury found that the defendant kept a pure, intoxicating liquor which had been adulterated with deleterious ingredients, the defendant must be acquitted. This request was objectionable because it asked the court to charge the jury that the defendant must be acquitted if he was not found guilty of the offence charged in the first count of the information. The information contained two counts for two different offences, and as the defendant’s counsel, in substance, asked the court to charge that the defendant was entitled to an acquittal if the offence charged in the first count was not sustained, the request asked too much and was therefore improper. The court would have been justified in disregarding it entirely. But the court did charge in substantial compliance with the request, and the prisoner was acquitted on the first count. On this point the-prisoner has no ground for complaint.
4. The prisoner’s counsel further requested the court to charge the jury, that if they found the liquor seized and called Port wine to be a combination of ingredients an imitation of that liquor, and that after the imitation was compounded nothing further was added to adulterate the compound, the prisoner must be acquitted. The court did not so charge, but did charge that if the liquor was a factitious, intoxicating compound, made in imitation of the liquor specified, and contained an admixture of ingredients which were *424deleterious or poisonous, it was within the description of the second branch of the statute. The court gave a correct construction to the statute. The legislature intended to x’each spirituous liquors composed of deleterious and poisonous ingredients, and prevent the sale of them, whether those ingredients were added to pure liquor or were used in compounding an imitation, or were added to the imitation. The language of- the statute is sufficiently clear and comprehensive to embrace them all. There is no error in the disposition made of that request.
5. The defendant further asked the court to charge that it was not sufficient to prove that liquors were kept for sale, but that the jury must find that the identical liquors which the state claimed to have been kept for sale, were in fact so kept. The court did charge in conformity with that request.
6. The defendant still further requested the court to instruct the jury that the offence charged involved a criminal intent, and that unless the prisoner knew that the liquors were adulterated there could be no such intent and he could not be convicted. The court charged that in general a criminal intent was the essence of crime, and where knowledge was essential to the criminal intent there knowledge must be proved. But it was not always essential. Where a' man was knowingly engaged in a criminal act, and unintentionally committed a greater offence than the one intended, proof of an intent was not essential to a conviction for the latter crime. We perpeive no error in this part of the charge. The defendant claims that the proposition of the court, though cox’rect when applied to crimes which are mala in se, is not correct when applied to eximes which are mala prohibita. We do not recognize the distinction as law. The cases cited by the defendant’s counsel are all cases where the prisoner was engaged in doing a lawful act and the offence was committed through carelessness.
A new trial is not advised.
In this opinion the other judges concun’ed; except Pakk, J., who having tried the case in the court below did not sit.