
    State versus Wall.
    In. a prosecution for the unlawful sale of spirituous or intoxicating liquors, it is the province, not of the Court, hut of the jury, to determine whether the article sold was or was not of the prohibited class.
    On Exceptions from the District Court, Hathaway, J.
   The opinion of the Court, Shepley, C. J., Wells, Rice and Appleton, J. J., was drawn up by

Rice, J.

This is a prosecution originating before a justice of the peace for a violation of the license law which was carried by appeal to the District Court, and comes before this Court on exceptions.

The liquor sold by the defendant was an article known as “ Hardy’s Bitters,” into the composition of which, as the case finds, alcohol enters, so far as is necessary for then preservation.

The Judge, at the trial, was requested to instruct the jury that if they were satisfied thát the bitters are the article sold, and that the alcohol was intended not to be sold as such, but only as a component part, necessary for the preservation of the bitters, the sale was not a violation of the statute.”

The Judge declined so to instruct the jury.

The statute under which this process was commenced, not only prohibited the sale of spirituous or intoxicating liquors by persons unlicensed, but also mixed liquors, part of which were spirituous or intoxicating.

Whether liquors axe, as matter of fact, wholly or in part spirituous or intoxicating, is to be determined by the jury, from the evidence in the case. That question could not be determined by the Court, as contemplated by the requested instruction. Exceptions overruled.  