
    Commonwealth vs. Nathan F. Hallett.
    To a complaint on the St. of 2869, c. 425, for making an .unlawful sale of intoxicating liquor, it is no defence that the seller believed that what he sold was a medicine or was not intoxicating.
    A defendant who has been convicted of making an unlawful sale of intoxicating liquor under the St. of 1869, c. 415, cannot for the first time at the argument of exceptions in this court set up that the liquor which he sold was cider.
    Complaint on the St. of 1869, c. 415, to a trial justice in Barnstable, for an unlawful sale of intoxicating liquor to Toby Scoby. At the trial, on appeal, in the superior court, before Dewey, J., Scoby testified that the defendant sold to him a bottle containing what was called “ plantation bitters; ” and that he drank all the contents of the bottle the next day and thereby got grossly drunk. “ The defendant, being called as a witness in his own behalf, and having admitted the sale, was asked by his counsel whether he in good faith sold the article as a medicine, and whether it was generally sold as a medicine. The judge excluded both inquiries, and ruled that the defendant might show that the article sold was a medicine, or that it was not intoxicating liquor, but that his statement that he sold it as medicine in good faith, and proof that it was generally sold as a medicine, would not be a defence; that it was his duty to ascertain what was the character of the article he sold, and if he sold it without ascertaining its true quality, and it was intoxicating liquor, he would be liable therefor. And the judge instructed the jury to the same effect, and that the question was not what the article was sold as, but what it really was; that if the article sold was a medicine, intended and put up in good faith as a medicine, though it may have contained some intoxicating liquor essential to the medicinal preparation, then the defendant would not be liable.” The defendant was found guilty, and alleged exceptions. It did not appear by the bill of exceptions whether or not the liquor was sold to Scoby at a public bar or to be drunk on the premises.
    
      J. M. Day, for the defendant,
    argued that the instruction that, if the defendant sold the liquor without ascertaining its quality, and it was intoxicating liquor, he would be liable, was too broad; for by § 26 of the St. of 1869, c. 415, cider was regarded as an intoxicating liquor, while under § 29 a sale of cider not at a public bar nor to be drunk on the premises was lawful.
    
      0. Allen, Attorney General, for the Commonwealth.
    It is immaterial whether the defendant knew or believed plantation bitters to be intoxicating or not. He was bound at his peril to ascertain. Commonwealth v. Boynton, 2 Allen, 160. Commonwealth v. Farren, 9 Allen, 490. Commonwealth v. Goodman, 97 Mass. 119, 120. Commonwealth v. Raymond, Ib. 569. Commonwealth v. Emmons, 98 Mass. 6, 8. This was the only question raised at the trial; and no other is now open. Commonwealth v. Stahl, 7 Allen, 303, 304. Alexander v. Carew, 13 Allen, 71.
   Chapman, C. J.

The defendant had no right to sell intoxicating drinks, even if he sold them in good faith as a medicine; so that the evidence on that subject was immaterial. Nor was the question whether he knew the character of the liquor material.

The instructions given to the jury are not to be understood as applicable to cider, because it was not pretended that the article sold was cider. Exceptions overruled.  