delivered the opinion of the court.
The test question in this case was whether the essence or tincture of ginger in this case was a medicine, sold by appellant to Davis as such in good faith, and not as a beverage, or whether it was a sham preparation, disguised as medicine, really an intoxicating liquor, sold as a beverage. If the former, appellant should have been acquitted; if the latter, convicted. The learned court below excluded the testimony of Dr. Stevens and Dr. Grillis, the appellant’s license and certificate of registration as a druggist, and refused, among others, instructions numbered one and three, to the defendant, and charged the jury, for the state, that if they believed from the evidence that appellant sold essence of ginger, and that it, when diluted with water and drank to excess, would produce intoxication, they should convict appellant', wholly ignoring appellant’s motive in the sale, and whether, when sold, it was a medicine, known and recognized as such, and incapable in its then state of being used as a beverage. The learned judge excluded all proof that it was a standard medicine, prepared according to a standard formula laid down in the United States Dispensatory, and used by physicians throughout the United States as a medicine in their practice. Appellant testified that he so made it, and never sold it otherwise than as a medicine. The state’s witnesses testified that it could not be used, as bought, as a beverage, but that, by diluting it sufficiently with water, it would, if enough of it were drunk, produce intoxication. The appellant was a duly licensed druggist. The appellant also offered to prove by Dr. Stevens, a practicing physician, that there were a great many other officinal tinctures used by practicing physicians in the United States, which, if diluted with water and drunk to excess, would produce intoxication,' and this was excluded. The court refused defendant’s instruction number one, propounding the proposition that, “if the jury believed from the evidence that defendant sold tincture of Jamaica ginger as a medicine, in good faith, and believed, further, from the evi*56dence, that the same was prepared by the directions of the United States Dispensatory, and that the same was recognized by the medical profession of the United States,” they should acquit.
This charge substantially was approved in King and Wall v. State, 58 Miss., 740, as we think, correctly. The true rule is there announced with great clearness, the court saying: “One authorized to sell medicines ought not to be held guilty of violating the laws against retailing because the purchaser of a medicine containing alcohol misuses it and becomes intoxicated, but, on the other hand, these laws cannot be evaded by selling as a beverage intoxicating liquors containing drugs, barks or seeds which have medicinal qualities. If the other ingredients are medicinal, and the alcohol is used as a necessary preservative or vehicle for them — if, from all the facts, it appears that the sale is of the other ingredients as a medicine, and not of the liquor as a beverage — the seller is protected; but if the drugs or roots are mere pretenses of medicines, shadows and devices ' under which an illegal traffic is to be conducted, they will be but shadows when interposed for protection against criminal prosecution.” The same test, in equally clear-cut language, is laid down in Commonwealth v. Ramsdell, 130 Mass., 68, 69; State v. Haymond, 43 Am. Rep., 789, and in a multitude of other cases. See 11 Am. & Eng. Ene. L., 573, et seg. t We refer specially to the masterly opinion of Mr. Justice Brewer, now of the United States supreme court, in “ The Intoxicating Liquor Cases,” 25 Kan., 751, s.c. 37 Am. Rep., 284. From King and Wall v. State, 58 Miss., 737, and Commonwealth v. Ramsdell, 130 Mass., 68, and authorities sv/pra, it is obvious that the issue in the case — the test question above set forth-— was not submitted to the jury.
The instructions 1 and 3, asked by the appellant, should have been given, the instruction for the state framed to present this issue, and the testimony referred to above as offered by the appellant, should have been received, and the jury, thus under *57proper instructions as to the real issue they were to try, left to respond on these charges and the facts as the very truth of the matter might appear.
Reversed and remanded.