Opinion by
Judge Cofer:The appellee was indicted and put upon trial for violating the local option law. The evidence conduced to prove that he was a merchant, and kept for sale a few patent medicines and Hossteter’s Bitters, Wine Bitters and Graves Bitters; that he sold a bottle of “Graves Bitters” to a person named in the indictment and furnished him with a glass, and he and his friends drank it in the store as a beverage, and that it contained some sort of alcoholic liquor, and something which imparted to the compound a bitter taste.
The jury would have been warranted in finding that the so-called “Bitters” was largely composed of alcoholic liquor; that it contained so much alcohol as to make it desirable as a beverage by those who wished that kind of stimulant. But the court, on mo*385tion of the appellee, instructed the jury to find him not guilty. This was error. Upon such a motion the court should have assumed as true every fact the jury would have been justified in finding from the evidence. The court had no right to decide the question of fact whether the “Bitters” was or was not spirituous liquor, and especially had no right to decide that it was not when the positive testimony of more than one witness was that it contained whisky or some other spirituous liquor, and that they drank it as a stimulating drink, and that it was used as a beverage as well as a medicine.
Hardin, for appellant. J. J. Landrum, for appellee.The jury should have been told, in substance, that if the “Bitters” contained alcoholic liquor, and was so compounded as to render it fit for use as a beverage and desirable to those wishing alcoholic stimulants, they should find the defendant guilty, although they might believe it contained drugs and other things which made it also a medicine.
The fact that the “Bitters” is so compounded as to be used both as a medicine by those who are sick, and as a stimulating beverage by those who wish such a beverage, strongly suggests that it is a mere device for evading the law, and if it be it should not be permitted to succeed.
Judgment reversed and cause remanded for further proper proceedings.