A majority of the court hold that the prescription offered in evidence by appellant, and which was excluded by the court, was properly excluded because of the omission of the word "personally" before examined, and the certificate was not "upon honor;" holding that these words are essential in a physician's prescription, as prescribed in article 403 et seq., Penal Code. While these words constitute a part of the physician's certificate, yet I do not believe that, because they are lacking, such instrument is not admissible in evidence, especially when in that connection there is proof tending to show that the statute regulating physicians' prescriptions for the sale of liquor, as in this case, was substantially complied with. To so hold would be to eliminate the element of good faith on the part of the physician, and to utterly ignore the question of intent, which I understand to be the essential element in the trial of criminal cases. This is not in accord with the doctrine announced in Price v. State, 40 Texas Criminal Reports, 428, and Garrett v. State, 1 Texas Court Reporter, 836. In this case the paper offered was in every sense a compliance, with the exception of the omission of the words "personally" and "upon honor," as before stated; and this was supplemented by appellant's proof, tending to show that he did make the personal examination required by the statute. When the paper evidence was rejected, of course appellant's defense was destroyed. The jury were never permitted to pass upon that view of the case.
I note that the majority hold that where the prescription of a physician is not in strict compliance with the terms of the law, and a sale is made under prescription, the physician makes himself a party to the sale by giving an illegal prescription by means of which the law is evaded. I am not prepared to agree that the doctrine of principals is applicable to a case of this character, inasmuch as our statute with reference to the granting of prescriptions by physicians would appear to cover this matter, and provide for offenses against physicians giving out illegal prescriptions. See articles 403, 405, Penal Code. By reference to these it will be seen that it is made an offense for any person who is not a regular practicing physician to give out a prescription in a local option precinct for the sale of liquor, or for any practicing physician who is directly or indirectly, either for himself or as the agent or employe of another, interested *Page 219 in the sale of intoxicating liquor, to give a prescription to be used in obtaining intoxicating liquor in any such precinct. And, again, it is made an offense for any physician to give out such prescription to any one who is not actually sick, and without a personal examination of such person. So that if one is a physician, and gives out a prescription, it would occur that he should be punished under these articles. If he is interested in the sale as agent or employe of the druggist, he is punishable for granting an illegal prescription; and he is also guilty of an offense if he gives a prescription to one who is not actually sick, and without a personal examination. Now, should a physician grant a prescription to one who is not actually sick, and without a personal examination, would he be punishable as a principal to the offense of a sale, or, rather, would he not be punishable under the statute for issuing an illegal prescription? It occurs to me that where a regular, practicing physician has in good faith performed his duty by a personal examination of the patient, and then given him a prescription for the purpose of obtaining whisky for his ailment, if the certificate should by accident or mistake be wanting in some of the requirements of the statute this should not exclude it as evidence, but, in connection with the proof offered, it should be admitted, and the jury authorized to pass on the question. If there was no good faith, or it appeared that the practicing physician was directly or indirectly interested in the sale, he would be punishable, not for making the sale, but for granting the illegal prescription. Key v. State, 37 Tex.Crim. Rep..
[NOTE. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]