* Headnotes 1. Intoxicating Liquors, 33 C.J., Section 241 (Anno); 2. Intoxicating Liquors, 33 C.J., Section 241 (Anno); 3. Intoxicating Liquors, 33 C.J., Section 545. Prosecution under the State Prohibition Act charging unlawful possession of intoxicating liquor. On trial by jury defendant was found guilty and a fine of $700 assessed as punishment. From the judgment rendered thereon, he appealed.
It appears from the evidence that defendant is a practicing physician and maintains an office at Bernie in Stoddard County. The sheriff of the county "raided" this office and found therein about one and one-half gallons of alcohol, a quart of red whiskey and a jug which contained one-half pint of what the sheriff called "white *Page 544 mule." With proof of the venue and that the liquor found in defendant's office was intoxicating, the State rested.
For the defense it was shown that the defendant is a regularly registered and practicing physician and had a permit from the county court to issue prescriptions for intoxicating liquor. Defendant testified and introduced in evidence exhibits to show that he had purchased the liquor under the Federal regulations relating to the purchase of liquor by physicians for use in the practice of their profession. He also testified that he bought the liquor for medical purposes.
The case was tried on the theory that the fact that defendant was a physician did not authorize him to keep intoxicating liquor in his office for use in his practice as a physician. Proceeding upon that theory the court gave the following instruction to the jury: "You are further instructed that if you find and believe from the evidence that the defendant had such intoxicating liquor in his office used by him as a physician and not in his private residence you cannot acquit the defendant even though you may find from the testimony that the defendant had secured a permit from the Federal government to purchase said liquor for use in prescribing the same in his practice as a physician." Defendant admitted that he had alcohol and whiskey in his office so that instruction was equivalent to an instruction to find defendant guilty.
The important problem for our solution is whether the State Prohibition Statute takes away from a physician the right to prescribe and dispense intoxicating liquor, or to compound and administer medicine of which intoxicating liquor forms a part, at his office and in the legitimate practice of his profession. If this defendant had the right to prescribe and administer intoxicating liquor either alone or as part of a compound as a medicine, then, of necessity, he must be permitted to possess the liquor to be used for that purpose at his office where he practices *Page 545 his profession. The prohibition statute is separate and distinct from the druggist statute and does not repeal the provisions of the druggist act unless it be so clearly in conflict therewith that both cannot stand. It is familiar law in this State that prior to the adoption of the Federal Prohibition Amendment and subsequent State legislation of a prohibitive character, the adoption of the Local Option Law which put prohibition in force in the territory adopting it did not repeal or supersede the druggist's statute. The reason for that is that prohibition deals with intoxicating liquor as a beverage while the druggist statute deals with it as a medicine. That being true, it has been uniformly held that the authority of a physician to prescribe intoxicating liquor or of a druggist to sell upon that prescription was not affected by the adoption of prohibition under the Local Option Law. Generally speaking then, we must look to the statutes dealing with druggists and physicians to find the restrictions, if any there be, which the lawmakers have placed upon the authority of the physician in prescribing and dispensing intoxicating liquor as medicine. Going back to 1881, Acts of 1881, p. 133, in the druggist act passed at that time we find the following provision in section 12 of that act: "This act shall not apply to physicians putting up their own prescriptions. . . ." The same provision is found in Revised Statutes 1889, section 4620, and in Revised Statutes 1899, section 3046. This last section with some other sections of the Druggist Act was repealed in 1909. See Acts 1909, p. 472, sec. 1, but practically the same provision was retained in section 5764, Revised Statutes 1909, in the following language: "Provided, however, that nothing in this section shall be construed to interfere with any legally registered physician of medicine or dentistry in the compounding or dispensing of his own prescriptions." This provision is also found in the revision of 1919. [See Revised Statutes 1919, section 4712.] With these provisions in the statute it has been held that a physician who is not operating a *Page 546 drug store could, if he acted in good faith, prescribe and dispense or administer intoxicating liquor to a patient in the legitimate course of the practice of his profession. [State v. Larrimore, 19 Mo. 391; State v. Young, 36 Mo. App. 517; State v. Bailey, 73 Mo. App. 576, 578.]
As long as that right remains, the right to keep in his possession intoxicating liquor to be used for that purposes necessarily follows: Section 4712, Revised Statutes 1919, has not been repealed unless it be that the Prohibition Acts of 1921 and 1923, Acts 1921, p. 413, et seq., and Acts 1923, p. 236 et seq., are so directly in conflict with the 1919 statute that both cannot stand and for that reason it should be held that the later acts must stand and the former fall. The Act of 1921, p. 313, section 6588, is the act which makes unlawful possession of intoxicating liquor a crime. As far as it can have any application to the question involved here, it reads as follows. "It shall be unlawful for any person . . . to . . . possess . . . intoxicating liquors within . . . the State of Missouri . . ." This section of that act has a proviso which will permit a person who has lawfully obtained possession of intoxicating liquor and is using it in a lawful way to keep it in his private residence but it nowhere mentions druggists and physicians and we do not think that it was intended by that act to repeal any part of the law relating to those persons. This same act at page 417, section 6592-A, provides that physicians may issue prescriptions for intoxicating liquor. This provision would be a nullity if the person to whom the prescription were issued could not go to a druggist and get it filled. It is apparent that it was not intended by this act to prevent druggists possessing intoxicating liquor for sale in their drug stores under existing laws. Neither do we think it was intended by that act to take away from a physician any right which he then possessed under existing law.
The prohibition act of 1923, Acts 1923, p. 240, section 13, appears to recognize the right of a physician *Page 547 to possess alcohol, whiskey and wine for use in the practice of his profession, for, in making provision as to whom ethyl alcohol may be sold it includes a regularly registered and practicing physician who uses alcohol, whiskey or wine in the ordinary and legitimate course of his profession and under authority of the proper officer of the Federal Government in the practice of his profession. That provision would be meaningless if he were not permitted to possess intoxicating liquor for any purpose unless he kept it in his private residence. We do not think the provision that a person who has lawfully obtained intoxicating liquors and is using it in a lawful way may keep it in his private residence applies to a physician engaged in the legitimate practice of his profession. For that reason the instruction to the jury heretofore set out was erroneous and for that error the judgment must be reversed.
We may add, however, that we do not think a physician can use his authority as a physician to cover up violations of the law and the good faith of the physician may be inquired into. There was evidence enough in this case to take to the jury the question of the good faith of the defendant and the purpose for which he had the intoxicating liquor in his possession in his office. The sheriff testified that part of the liquor found in defendant's office was what he called "White Mule." This "White Mule" was whiskey of such a low grade that no reputable physician would either prescribe or dispense it as a medicine. If defendant had intoxicating liquor in his possession for any purpose other than for legitimate use in the legitimate practice of his profession, he should be convicted. If he kept it in his office in good faith for use in the legitimate practice of his profession, then his possession was lawful and he should be acquitted.
Judgment reversed and the cause remanded. Bradley andBailey, JJ., concur. *Page 548