(dissenting) :
I think count two of the indictment is good. True, it does not allege, in terms, that the sale was made without the prescription of a licensed physician; but it does so, in effect, by negativing the fact that defendant is one of that class of persons who have the right to sell cocaine on a physician’s ¡prescription. I admit that section 1 of the act does not define the class of persons who are permitted to sell, but section 2 does. And the court is not confined to the first section to ascertain the crime, Che thing prohibited; it may look to the entire act. Sec. 2 makes it a felony for any person, except the class of persons which the count, under which defendant was tried, alleges he does not fall within, to even “have in his possession cocaine •■:= * * with intent to sell, give away or otherwise dispense the same.” But, it was suggested that defendant was not indicted for having cocaine in his possession with intent to sell it. True, he was not; but can section 2 not be read to ascertain whether or not defendant was one of the enumerated class of persons who, alone, are allowed to have cocaine in their possession, for sale, or gift ? And, seeing that he is not in that class, then how can it be said that he did not violate the statute by making a sale? Is it possible that the legislature has made it an offense for any person, except certain classes of persons, to have cocaine in their possession with intention to sell it, and yet has failed to make a sale of it by the same person an offense ? To my mind this seems absurb, and yet, such result follows *97the decision. To prevent the sale or gift of cocaine by the class of persons to which defendant belongs, is clearly seen to be the intention of the legislature and the very purpose of the statute; and section 2, forbidding him to have it in his possession, is primarily for the purpose of preventing his selling or giving it away.
I think the decision rests upon reasons which are hyper-teehnieal, and results in an absurdity. I am fully aware of the rule of construction which requires that a statutory crime shall come within the letter of the law. But there is also another rule of construction, equally fundamental, which says that the rule of strict construction should not “preclude the application .of' common sense to the terms made use of in the statute to avoid an absurdity which the legislature ought not to be presumed to have intended.” 2 Lewis Sutherland Statutory Construction (2nd ed.), sec. 521. Commonwealth v. Loring, 8 Pick. (Mass.) 370; House v. House, 5 H. & J. (md.) 125; Smith v. State, 17 Texas 191. I do not think this case is controlled by the case of State v. Welch, 69 W. Va. 547, for the reason I have stated. I thought, at the time that decision was rendered, that it was very technical, and yielded reluctantly to the opinions of my associates, because of certain previous decisions by this Court in indictments for sale of intoxicating liquors; but I am unwilling to expand so technical a rule. It is always easy ,to defend by producing the license. Moreover, we have recently held that the State need not prove want of license, even when such want is formally alleged, but that it may be presumed from proof of a sale. State v. Tygarts Valley Brewing Co., 71 W. Va. 38, 75 S. E. 149. Why allege what need not be proved? But, I insist that count number two of the indictment, read in the light of the entire act, does allege want of a physician’s prescription, by alleging, in effect, that defendant is not one of the class of persons who are permitted by the act to sell cocaine, even if he had a prescription. Verily, it does sem that the power to construe is more potent than the power to enact laws.