State v. Hale

Ellison, J.

The defendant was a physician and also a druggist and pharmacist. He was indicted, tried and convicted as a druggist and pharmacist for selling intoxicating liquor in less quantity than four gallons without having a written prescription as prescribed by section 4621 of the statute of 1889 relating to druggists.

The evidence on part of the defendant tends to show that defendant being a physician and also a druggist himself made out the prescription for the purchaser of the liquor, and that it was in proper form. But on the' part of the state the evidence was such as that the court, sitting as a jury, might reasonably have found there was no prescription when the sale was made.

druggist and |o2dcfSh of prescription. It is urged here that the question of defendant’s good faith in issuing the prescription was not properly involved under the section of the statute aforesaid on which the indictment ís.based. Passing by the fact that whatever there was in the case as to defendant's good faith (whether in the evidence or instructions) was put into it by defendant himself, we are of the opinion, as before stated, that the court was at liberty to find from the evidence in behalf of the state that there was no prescription at all at or prior to the sale, and that the One in evidence must therefore have been made out afterward. It may be readily conceded that where one, being both a druggist and practicing physician, issues a prescription as a physician and fills it as a druggist, that his good faith in issuing the prescription could not be inquired into in a prosecution under section 4621. And that he should be indicted under section 4623 if he is to be prosecuted for issuing a prescription in bad faith for purposes not contemplated by section 4621. But this view does not help defendant on the record presented, since, as before stated, the'eourtmay have found that there was no prescription at all when the sale was made.

quantity?11 ce 2. It is next urged that there was no evidence that defendant sold a quantity less than four gallons. The evidence of the prosecuting witness was that he purchased ‘ ‘a bottle of beer” for twenty-five cents and that he drank it in defendant’s office. We deem this statement, in its entirety, sufficient to authorize the court to find the quantity to be less than four gallons. It is true that the evidence is not as definite as in State v. Heinze, 45 Mo. App. 413, where the witness in answer to a question whether he had bought beer in less quantity than one gallon, answered: “Tes, I bought three bottles of beer from her one Sunday evening.” Still the testimony as given was sufficient to reasonably draw the inference made by the court that the quantity was less than four gallons.

exceptions?611^* 3. The indictment does not negative some exceptions contained in section 4621. But it will be noticed that those exceptions refer to wine and alcohol. The indictment here designates the liquor as beer. It was therefore altogether unnecessary to negative matters relating solely to other liquors.

The other objections to the indictment are not well taken and we will affirm the judgment.

All concur.