
    Commonwealth vs. Isaac H. Goldsmith.
    Suffolk.
    March 12, 1900.
    May 16, 1900.
    Present: Holmes, C. J., Knowlton, Morton, & Lathrop, JJ.
    
      Sale of Tobacco on ike Lord’s Day — Evidence.
    While a sale made in good faith upon an application for tobacco to be used as a medicine may be within the following language of St. 1895, c. 434, § 2, relatingto the observance of the Lord's day, “but nothing in this statute shall be held to prohibit . . . the retail sale of drugs and medicines,” yet, there being no offer to show such a sale, evidence that the defendant sold the articles as drugs is rightly excluded.
    Complaint, under § 2 of St. 1895, c. 434, relating to the observance of the Lord’s day. At the trial in the Superior Court, before Sheldon, J., the jury returned a verdict of guilty; and the defendant alleged exceptions, which appear in the opinion.
    
      E. H. Pierce, for the defendant.
    
      M. J. Sughrue, First Assistant District Attorney, for the Commonwealth, submitted the case on a brief.
   Knowlton, J.

This is a complaint against the defendant under St. 1895, c. 434, § 2, for doing business, namely, selling two cigars and an ounce of tobacco, on the Lord’s day. The witness for the Commonwealth testified as follows: “ I went in and told him I wanted two good cigars and a five-cent piece of tobacco, and that I should use them as evidence against him if I got a warrant; and he gave me the cigars and piece of tobacco.” The witness paid twenty-five cents for them. The defendant offered to show that when the witness asked for the cigars and tobacco the defendant said, “ I will sell them to you as drugs,” and that the witness, after he got them, said, “ I propose to use them as evidence,” and that the defendant then said, “ I cannot help what you want them for, I sold them to you as drugs,” and he offered to show by experts that tobacco and cigars are drugs. The defendant carried on a drug business and had a drug department in the store.

There is no doubt that selling cigars and tobacco is doing business within the prohibition of the statute, unless it is protected by the words, “ but nothing in this statute shall be held to prohibit . . . the retail sale of drugs and medicines.” In Commonwealth v. Marzynski, 149 Mass. 68, 72, it was held that cigars are not drugs within the meaning of this provision of the statute. Like many other things they may be medicinal; like many other things which are articles of commerce and are prepared for other than medicinal use, they contain an ingredient or element that in a broad sense may be called a drug; but as ordinarily prepared and sold they are not themselves drugs. It may be that with or without a prescription from a physician one may lawfully purchase tobacco or cigars as medicine at a drug store on the Lord’s day. A sale made in good faith upon an application for tobacco to be used as a medicine may be within the above quoted language of the statute. In the present case there was no offer to show such a sale, but only that the defendant sold the articles as drugs. The evidence offered and excluded had no tendency to show that the sale was within the protection of the statute.

Exceptions overruled.  