— The defendant was indicted at the October term, 1887, of the circuit court of Dallas county for selling intoxicating liquors, in a less quantity than one gallon, without having a license as a dramshop keeper, or other authority so to do. On the trial the state adduced evidence tending to show that the defendant, at the time and the place mentioned in the indictment, did sell a half pint of alcohol and a half pint of gin, and receive pay therefor. The defendant, to maintain his defense, introduced evidence tending to show that he had been in the constant practice of medicine for some eighteen years, then last past, and that he sold and administered the said intoxicating liquors for medical purposes ; that he was not a licensed druggist nor a pharmacist, nor a physician owning or operating a drug store, who had been permitted to register as a druggist or a pharmacist. Nor was it shown that the defendant, at the time of said sale, had a dramshop license.
Upon substantially this state of facts the circuit court directed the jury that if they believed, from the *520evidence, that the defendant, within the time and at the county mentioned in the indictment, did sell intoxicating liquors in less quantities than one gallon, they would find him guilty, etc.
By another instruction, given for the state, the court further directed the jury that before they could acquit the defendant on the ground that he sold liquor on a prescription, they must find that prescription was written, dated and signed by some regularly registered physician and that the name of the person for whom it was prescribed was therein stated, and that such intoxicating liquors were a necessary remedy. There were some other instructions given and refused, but in the view of the case which we have taken, as will presently appear, it will not be necessary to set forth the same here.
As the defendant did not show that he was licensed under the druggists and pharmacist’s law, nor under the dramshop act, to make said sale of intoxicating liquors, he must be held to have been properly convicted under the indictment, unless it was shown, by the evidence, that he was a physician, and, as such, sold and administered said intoxicating liquors in good faith, as a medicine, upon his professional judgment. Sec. 12, of the act of March 26, 1881. Session Acts, 1881, page 30, provides in express terms that the provisions of that act should not apply to physicians putting up their own prescriptions.
This section has not been changed or modified by any subsequent legislative enactment, and, therefore, this exception was in force at the time defendant made said sale. The defendant, being a physician, then had unimpaired all the immunities and privileges that were accorded to him as such physician prior to the adoption of the said act regulating druggists and pharmacists in so far as the law authorized him to prescribe and *521administer intoxicating liquors, as a medicine, in good faith, to those whose sufferings he was called upon to alleviate.
The supreme court of this state in the case of the State v. Larimore, 19 Mo. 392, in its commentary upon an instruction then under review, held that “If this instruction had left the question to the jury whether the defendant had, in good faith, sold the brandy to a sick person, as medicine, and he had been convicted, we would not have disturbed the judgment. Physicians are not to become dramshop keepers under color of their professional practice. If a physician, upon his professional judgment that a sick person needs brandy, administers it as a medicine, and charges for it, he is not to be punished, because such liquor properly used is a valuable medicine.
“But if he sells it to a man who is well, or sells to a man who is not well, without exercising his professional judgment, and determining that it is necessary for the sick person, he is indictable. His exemption from the fine is not to rest upon the strong wish of the individual purchasing to have the liquor, nor merely upon the judgment of such person that the liquor would be useful to him as a medicine, but must be founded upon the judgment of the physician that it is medicine which the diseased man requires.”
This case was a second time before the supreme court, where there was a reaffirmance of the principles declared in the first instance, 20 Mo. 424.
The doctrine of these cases has not been trenched upon by the subsequent rulings of any of the appellate courts of this state so far as we have been able to discover.
The instruction already adverted to, when tested by the principles of the law enunciated in the cases just cited, will be found out of line with the same.
The first of which said instructions was, as far as it goes, well enough. If there had been annexed to it the *522further direction, that unless the jury should find further from the evidence that the defendant was a physician, and in good faith prescribed and sold the intoxicating liquors mentioned in the indictment to a sick or diseased person, as a medicine upon his professional judgment of its necessity, then in that event they should find him not guilty, we should not feel called upon to disturb the judgment. Instead of the second of said instructions if the court had given a cautionary one in effect telling the jury that, although they may find the defendant was a physician at the time he made said sale, yet if they further found that the same was made to a well person, or to a person who was not well without exercising his judgment and determining that it was necessary for the sick person, then they must convict, there would have been less cause for complaint.
The attention of the jury under such instructions would have been restricted to the consideration of the proper questions for them to determine.
In respect to said second instruction it may be further observed, that the same was misleading and wholly inapplicable to the case since the defendant was not a licensed druggist nor pharmacist nor a physician owning or operating a drug store, who had registered as a druggist or pharmacist. This defense can be invoked only by a license of one of these classes.
If this indictment were against the defendant for selling intoxicating liquors in the quality of a physician who owned or operated a drug store and had been permitted to register as a druggist and pharmacist, the instruction might be proper, but upon the facts of this case it is entirely foreign and inapplicable.
It was erroneous further in that it excluded from the consideration of the jury the only possible defense available to defendant which was that he made the sale as a physician in good faith as a medicine, etc.
As we shall reverse and remand the case for a new-trial it may not be out of place to state as to whether the *523defendant was a physician authorized to practice medicine under the laws of this state at the time of the sale of said intoxicants, is a question of fact to be determined by the jury under proper instructions.
If defendant had been practicing medicine for five years next before the passage of the act of April 25, 1883, then none of the provisions of that act were applicable to him.
He had the same right to practice his profession after its passage as before, though he did not comply with its requirements. In such case he would belong toL that class of physicians who are exempt from its operation.
There are some other matters suggested by the counsel for defendant which need not be noticed as it is believed enough has been said to enable the trial court to retry the case upon the principles which we think are applicable thereto.
The judgment with the concurrence of the other judges will be reversed, and the cause remanded.'