dissenting. I concur in the conclusions reached by the Chief Justice, except upon the second ground of appeal, and from that I dissent. It seems to me that the only question is, whether the Circuit Judge erred in instructing the jury, that if a druggist or apothecary sells spirituous liquor more. than one time on the same prescription, he violates the law, and upon satisfactory proof to that effect he should be convicted. It does not seem to me that there was'any error in such instruction. On the contrary, the statute expressly declares: “That no druggist or apothecary shall sell more than one time upon the same prescription. * * * And if a sale be made a second time upon the same prescription, the druggist or apothecary so selling shall be deemed to have sold without any prescription.” Act of 1884, 18 Stat, 797. And the charge was precisely in accordance with the statute. The fact that the prescription was for three pints of whiskey, and that no more than that amount was sold under the prescription, cannot affect the question, for the defendant himself *47in his testimony says: “I sold whiskey on that prescription three times — one pint each time,” and the charge as given was exactly applicable to that testimony.
I do not think that the statute can be construed as authorizing the sale of spirituous liquors, under a prescription for a specified amount, in fractional portions of that amount at different times, provided the whole amount sold do not exceed the amount specified. Such a construction would enable one, under a prescription for a quart, to obtain the liquor by the drink at such times as might suit his taste or convenience; and that was, doubtless, one of the very things which the statute was designed to prevent. In addition to this, under the former retailing law, which forbade the sale of spirituous liquors without a license in quantities less than three gallons, I think it was uniformly held that where one contracted for three gallons, with the understanding that it was to be delivered at such times and in such quantities as it might be called for, the law was violated. This is sustained by the authorities cited by the solicitor.1
I think, therefore, that the judgment of the Circuit Court should be affirmed.
Judgment reversed.
Bish. Stat. Crimes, § 1013; Murphy v. State, 1 Ind., 366; State v. Kirkham, 1 Ired., 384.