The opinion of the court was delivered by
Graves, J.:We do not think the information fatally defective. The averment therein concerning the affidavit is equivalent to a statement that no affidavit whatever was made by the applicant. This is sufficient. The whole embraces all the parts.
The contention that the statute' requiring the applicant to make an affidavit and sign his name thereto in ink is merely directory has already been denied by this court in the case of The State v. Davis, 44 Kan. 60, 24 Pac. 73. In that case Commissioner Strang said:
“We also think that the very object of the provisions of the statute in forbidding the pharmacist who is permitted to sell for medical purposes from so selling until the applicant for the liquor has subscribed with ink and sworn to an affidavit properly filled out under the statute is to prevent the sale and use of such liquor as a beverage. The pharmacist is bound to know all the provisions of the law. If the applicant honestly wants intoxicating liquor for medical use, he will not hesitate to make the necessary affidavit required by the law. But he may well hesitate about making such affidavit when he wants the liquor for use as a beverage, because the statute declares that if he makes a false affidavit he shall be guilty of perjury. It is the fear of prosecution for perjury that causes the shuffling in connection with the making of the affidavit, and which results in incomplete affidavits such as were made in this case. The whole force and effect of the law may rest upon this affidavit; for if it may be evaded, as in this case, by simply signing it with a pencil and not swearing to it, then any person, by simply saying in writing that he wants a certain quantity of liquor, and that he wants it for medical purposes, can get it; and it is well suggested in the state’s brief that if that could be done it would become very fashionable to drink for medical purposes. We think all the provisions of the statute *472relating to the affidavit required of the applicant before a sale of intoxicating liquor can be made to him are material and vital parts of a law to prevent the sale and use of intoxicating liquor as a beverage, and that sales by a pharmacist without having observed them subjects the said pharmacist to punishment by fine and imprisonment.” (Page 63.)
The evident object of these requirements of the statute furnish an unmistakable guide for its interpretation. Manifestly it was intended that an oath with all its solemnities and formalities should be administered to every applicant as a check upon sales of' liquor to persons desiring to use it as a beverage. The law provides that these applications shall be filed in the office of the probate judge, where they are open to public inspection and examination. They might become useful as evidence in prosecutions for violations of the law. It is important, therefore, that the name of the purchaser should not be open to erasure or change on account of use in examination, lapse of time, or otherwise. The provision that the name shall be signed in ink subserves this purpose.
The instruction given wherein the expression “preponderance of the evidence” occurs was of course erroneous, but the court took up separately each count of the information submitted to the jury; and stated fully and clearly all the elements of the offenses charged therein, and that each and all of such elements must be established beyond all reasonable doubt before the defendant could be convicted. This rendered the expression complained of harmless.
The instruction requested by the defendant as to the necessity of a criminal intent was sufficiently covered by the instruction given by the court that the act of the defendant must have been done knowingly and wilfully before he could bé convicted. We do not decide that it would have been error if these words had been omitted from the charge, but, since they were uséd, the defendant has no reason to complain.
*473These are the principal questions presented by the defendant. Some others are suggested, but they are unimportant, and we think it unnecessary to discuss them. We are unable to find any error in the record. The judgment is affirmed.
All the Justices concurring.