—At the outset of this case it is necessary to observe that the clerk in copying and certifying the bill of exceptions as part‘of the record herein has faded to insert where called for certain documentary evidence offered in the case. It is not sufficient that, the clerk merely certify the copy of the bill of exceptions as filed in his office, but wherever documentary evidence has been offered and there is a call for the same in the bill of exceptions by saying therein, “Clerk will here copy same,” or equivalent words, care should be taken by the clerk to follow such directions and to actually copy and insert the documentary evidence referred to.
The defendants were tried jointly and both convicted of selling intoxicating liquors in Dade county, Missouri, in violation of the Local Option Law adopted and in force in that county. No error is predicated on the information,- verdict or judgment. It is conceded that the Local Option Law had been legally adopted and was in force in Dade county at the time of the alleged offense.. The errors complained of are such as occurred during the progress of the trial.
The facts show that the defendants were at, and prior to, the date of the alleged offense partners in the business of running a drug store at the town of Ever-ton. Their stock of drugs, other than the kind delivered in barrels and kegs, seems to have been limited. One of the defendants said he could not say whether' as much as ten barrels of beer per week were delivered to them or not but thought they received as much as five barrels. One of the defendants also admitted that he had been twice convicted of selling intoxicants in violation of the law and had once plead guilty to' allowing intoxicating liquors to be drunk on his premises. There was much evidence showing that defendants had the reputation of being persistent violators of the liquor laws of the State. These facts are stated in explanation of the seemingly heavy penalty of a -fine of three hundred dollars- and ten months in the county jail assessed against each defendant by the verdict of the jury.
The witness said this transaction was in August or possibly in July, -1912. The defendants offered in evidence- as justifying this sale of whiskey what they •termed a prescription, which is as follows: “Take this to O’Kelley & Fitch, Everton, Missouri. For Joe Linley, R. Spts. Fermentó Qy., as a necessary remedy.
That druggists may sell intoxicating liquors on written prescriptions issued by “a regularly registered and practicing physician” as provided by section 5781, Revised Statutes 1909, even in counties where the Local Option Law is in'force, is no longer debatable. [Ex parte Swann, 96 Mo. 44, 9 S. W. 10; State v. Moore, 107 Mo. 78, 16 S. W. 937; State v. Russell, 99 Mo. App. 373, 375, 73 S. W. 297; State v. Bartlett, 147 Mo. App. 133, 125 S. W. 839.]
The statute in question, section 5781, limits the right to sell intoxicants on a physician’s prescription'to “a druggist, proprietor of a drug store or pharmacist!” The proprietor of a store dealing in drugs and medicines may be either a druggist within the druggist act of which section 5781 is a part, or merely a merchant and licensed as such. To come within the druggist act, so as to be allowed to sell intoxicants on physicians’ prescriptions, he must be a registered pharmacist or assistant pharmacist or have such a person in his employ for the purpose of compounding physicians’ prescriptions. [State v. Jordan, 87 Mo. App. 420; State v. Workman, 75 Mo. App. 454; State v. Goff, 66 Mo. App. 491, 495; State v. Quinn, 170 Mo. 176, 67 S. W. 974, 70 S. W. 1117.]
The statute last cited provides that: “It shall be unlawful for any person not licensed as a pharmacist or assistant pharmacist within the meaning of this chapter to compound, dispense or sell at retail any drug—upon the prescription of a physician or otherwise, or to compound physicians’ prescriptions, except as an aid to or under .the supervision of a person licensed as a pharmacist under this chapter.” ;■
The defendants were licensed as merchants and there is no claim that either of them were- registered pharmacists or assistant pharmacists nor • was Dr-. Spyers such at the time the liquor in question was sold.
The most serious question presented for our consideration is the assignment of error that the record in this case does not show any arraignment or waiver thereof by- the defendant or that any plea was entered prior to the impaneling of the jury. The record shows that: “The above entitled cause coming on for trial before the Hon. B. G. Thurman, Judge of the Twenty-sixth Judicial Circuit of the State of Missouri, -and the jury, and both sides announcing ready for trial the following proceedings were had, to-wit.” The plaintiff appeared by Edwin Freize, prosecuting attorney, and S. A. Payne. The defendants appeared by Howard Ragsdale and J. O. Patterson. A jury was sworn to try the ease. The information was read to the jury by the prosecuting attorney,' who thereupon said: “Gentlemen, we expect the proof to show the facts as alleged in this information.” The court thereupon addressed the defendants and their attorney, Mr. Ragsdale, said: “No statement at this time except we plead not guilty.” The State thereupon put in its evidence and the witnesses- were cross-examined by defendants’ attorneys. The defendants were both sworn and testified as witnesses in their own behalf and were examined and cross-examined by the respective attorneys. The defendants made numerous objections throughout the trial, some of which were sustained
To hold that under the record in this case the “defects and imperfections” complained of “does tend to the prejudice of the substantial rights of the defendant upon the merits” is against all reason. If the law is, as we boast, the perfection of reason, then mere form must give way to substance. To see to it that
Everyone knows that in the modern criminal practice, unless the defendant raises some preliminary question or flies some special or dilatory plea, the only question to be determined is whether the defendant will plead guilty or stand trial. Everything short of a plea of guilty, which is an express waiver of a trial, is by
In this case the defendants were -given the last opportunity to plead guilty by the court. calling the case for trial. They are not complaining of any lack of opportunity to do that. The record shows that when the case was called in regular order both parties announced ready for trial. Under our practice the State would so announce first; then in turn the defendants would say ready for trial. Trial of what? That announcement can and does have but one meaning. It is certainly not a plea of guilty; and by our statute and practice everything else is to be taken as a plea of not guilty. Defendants’ announcement that they are ready for trial can be nothing less than a declara-' tion that they are not guilty and a challenge to the State to prove the charge. The issue is joined; the trial is to determine that issue. Suppose the -defendants had said not guilty instead of ready for trial. Would the meaning or effect have been any different? They merely anticipated the result of saying not guilty and announce that they were ready for that result. Had they answered not guilty no one would have questioned the sufficiency of that manner of joining the issue for it has long since been settled that the matter of formal arraignment and entering a plea is not a matter of such vital importance that it may not be, and as we all know constantly is, waived in the most informal manner. [State v. Grate, 68 Mo. 22, 27.]
In State v. Braunschweig, 36 Mo. 397, 398, the court said: “Much of the common law solemnity that was formerly used in the formal arraignment of those who stood indicted for crime is now- dispensed with. There were reasons for an adherence to-them which do not now exist. It was at one time necessary
Also in State v. Weeden, 133 Mo. 70, 79 (34 S. W. 473), the court said: ‘ “To arraign is nothing else but to call the prisoner to the bar of the court to answer the matter charged upon him in the indictment.’ [4 Black. Com. 322; Goodin v. State, 16 Ohio St. 344.] No technical arraignment, such as requiring the prisoner to hold up his hand, the reading over the indictment to him and asking him whether he be guilty or not guilty was necessary. The arraignment as shown by the record was a substantial compliance with the law and even if it were not, as the record also shows that defendant pleaded ‘not guilty’ to the indictment, he thereby waived formal arraignment.”
Nor are we wdthout authority in these views. There is much reason and therefore good law in the holding of the courts of Illinois on this question: “It is also urged that the defendant was put upon trial without entering his plea. It has been held that this is error even in case of a misdemeanor. [Hasking v. People, 84 Ill. 87; Gould v. People, 89 Ill. 216.] But if this were the only point in the case we should be inclined to hold upon the fact as shown by this record,
“Where defendant announces himself ready for trial he in effect enters a plea and the failure of the record to contain a formal statement on that point would be a mere irregularity, for which no other reasons appearing, judgment would not be set aside.” [Spicer v. People, 11 Ill. App. (Bradw.) 294.]
The record here shows that after announcing ready for trial the jury was then sworn but we know that under our practice the defendants had exercised their right to “scratch” the jury preparatory to the trial. When the jury was sworn the information was read and before any evidence was introduced the defendants announced that “they plead not guilty.”
In State v. Weber, 22 Mo. 321, it was held that where no plea was entered until after both jury and witnesses were sworn that the plea might then be entered and that “the formal arraignment and entering of a plea of not guilty and the reswearing of the jury put the matter beyond cavil.” The court also held that the reswearing of the witnesses would have been a mere formality and was not such error as required a reversal. Why then is the reswearing of the jury any less a mere formality? While the jury was in that case resworn after the plea was entered and the court said that such action “put the matter beyond cavil,” we have every reason to believe that had the. jury not been resworn the court would have held the same way.
We also commend what is said in Steils v. State, 124 Pac. Rep. (Okla.) 76, as follows: “In this case counsel for appellant rely upon a purely technical defense, and manifested great zeal and ability in the presentation of the questions relied upon. It is unfortunate for counsel that the days of a purely technical defense, unless based upon á substantial right, have passed and gone, never to return to this State. But
In considering this question some force should also be given to the rule that the same strictness is not required in trials for misdemeanors as in trials for felonies, and what may constitute reversible error in the latter may not be such in the former.
We have not reached our conclusions in this case without reading and considering the cases of State v. Witherspoon, 231 Mo. 706, 133 S. W. 323; State v. Moss, 164 Mo. App. 379; 144 S. W. 1109; State v. Montgomery, 63 Mo. 296; State v. Saunders, 53 Mo; 234; State v. Mikel, 125 Mo. App. 287, 102 S. W. 19; State v. Sharpe, 119 Mo. App. 386, 95 S. W. 298; State v. West, 84 Mo. 440; and being cognizant of the fact that there is a long line of cases, almost too numerous to mention, holding that the record in a criminal case must show that the defendant was formally arraigned or that he waived formal arraignment and entered his plea. We are also mindful that the decisions of the Supreme Court on this or any other question are binding on this court. Were the facts of this case the same as the facts in any case decided by the Supreme Court we would be required to follow such decisions. We confess, however, that we are not always impressed with the reasonings of the courts on this question. Many of the decisions seem to follow form rather than substance and to adhere to precedents solely because they are precedents, forgetting that when the reason on which a rule of law is based changes the law itself changes with it. [State v. Vanhook, 88 Mo. 105.]
The very frequency with which this question comes before the appellate courts, as well as our limited experience with the practice in trial courts, shows that the matter of arraignment and entering a plea has