(dissenting).
The extract of ginger alleged to have been sold in this ease was shown to be intoxicating liquor; pure and simple. There was no evidence to show it conformed to section 4 (b), title 2, of the National Prohibition Act (27 USCA § 13 (b), or a permit had been obtained under section 4 (a) (27 USCA § 13 (a) to manufacture or purchase it. There was no defense of that character. It was only necessary therefore, to a conviction under the first three counts, that the sale of the liquor was made, that it was intoxicating, and that it was fit for beverage purposes. Under -the fourth count, it was only necessary that the defendants maintained a place where such intoxicating liquor, fit for beverage purposes, was being sold. There was no evidence of a ease of a sale innocently made, as a medicinal preparation. Also the matter of labels was wholly irrelevant and properly excluded.
The court inadvertently omitted to charge that the ginger must'have been fit for beverage purposes, and, on exception being taken, the court said, “Well, you may so consider that, gentlemen of the jury.” The jury could not have misunderstood the correction. If counsel was still not satisfied, further exception should have been saved; but it was not done. There was really but slight occasion for a more formal charge, as the court had previously quoted the statute and explained that it was essential that the ginger was sold for beverage purposes, and that the *457liquor is fit for beverage purposes, when mixed with water. Besides, the testimony was clear that the ginger was bought for drinking purposes.
The defendants did not testify, and in the ease of defendant Keatch an alibi was tendered as a defense. It was properly submitted to the jury. That part of the charge on the subject quoted by the majority opinion was correct. It was in accord with settled principles that such a defense is easily feigned, should be scrutinized as to the time of defendant’s absence from the scene of the offense, and, when unfounded, it is a discrediting circumstance against the defendant. Crittenden v. State, 134 Ala. 145, 32 So. 273; State v. Blunt, 59 Iowa, 468, 13 N. W. 427; Walker v. State, 6 Tex. App. 576; People v. Portenga, 134 Mich. 247, 96 N. W. 17; Rayburn v. State, 69 Ark. 177, 63 S. W. 356. I am unable to discover that the instruction was argumentative in any sense.
I think the sentences should be affirmed.