Battle v. State

51 Ark. 97 | Ark. | 1888

COCKRILL, C. J.

These six appeals from convictions for violation of the liquor laws have been submitted together as involving similar questions. . Some of the convictions were had under the general license law and some under the three mile local option law.

All the defendants are druggists and each sold whiskey to his customers on the prescription or requisition of a practicing physician that it was for a sidk person under his' charge. The physician in each case had made and filed the oath hereinafter mentioned as the law prescribes.

The question presented is the correctness of the defendant’s contention that it was the intention of the legislature, as expressed in the third section of the Act of March 21st, 1881, known as "the three mile law,’’ to authorize druggists tosell any kind of ardent spirits on the prescription of a physician who had qualified himself to prescribe alcoholic and vinous liquors for the sick, by compliance with the requirements of the act.

1. Liquors: Construction of license law. it is the settled construction of our license law that no one' without a license can lawfully sell any of the prohibited liquors or concoctions mentioned in the act — notevena druggist when selling as medicine in good faith upon the prescription of a practicing physician. Woods v. State, 36 Ark., 36; Flower v. State, 39 Ib., 209; State v. Butcher, 40 Ib., 362; Chew v. State, 43 Ib., 361.

The presumption is that in licensed districts ardent spirits, needed for medical purposes can be procured from a licensed dealer. Wood v. State, 36 Ark., sup., and the intention of the license act is to confine the traffic to such persons.

2. Same: Sale for medical purposes. The terms of the act prohibit a sale by an unlicensed per-r , . "for any purpose whatever,” no exceptive provision j x x ' x x being made in favor of the druggist or for medical purposes. The legislative intent, like that expressed in the similar statutes of Illinois and other states, has therefore been considered too manifest for the courts to engraft any exception upon the statute. Wright v. People, 101 Ill., 126; Bish. St. Cr., sec. 1026 N. 6. This was the’ construction placed upon it prior to the enactment of the three mile law, and that that act did not alter it was decided in Chew v. State, sup.

The question remains, does the three mile law intend to-exempt druggists selling ardent spirits as medicine upon the prescription of a physician within the prohibited district, where no license can be obtained, from the penalties imposed by the law? The first section of the act is to the effect that when the county court upon a prescribed petition has prohibited sales within a radius of three miles of a designated point, ‘it shall be unlawful for any person to vend or give away any spiritous, vinous or intoxicating liquors of any kind,” etc., within the district described in the order.

3. Same: Who may furnish to the sick. Now the value of spiritous liquors in the treatment of diseases is, perhaps, universally recognized. But as no license can be had in the prohibited district, if no one can lawfully sell or give them away their use as a medicine would practically be lost. But the intention of the legislature not to bring about that state of things is manifested by the third section of the three mile law, which is as follows: ‘‘This act shall not be construed as prohibiting the use of wine for sacramental purposes, or to prevent the prescribing and furnishing of .alcoholic stimulants by a regular practicing physician to the sick under his charge when he may deem the same necessary; but before such physician shall be authorized to prescribe and furnish such alcoholic stimulants, in order to protect himself from the penalty of this act, he shall file in the office of the county clerk in the county in which he resides an affidavit, which shall be in the following form, to-wit: I,-- — , do solemnly swear or affirm that I am a regularly practicing physician and that I will not prescribe or furnish any vinous or alcoholic stimulants to any one except it be in my judgment, a necessity in the treatment of the disease with which he shall be at the time afflicted.” Here provision is made for furnishing alcoholic stimulants to the sick. But by whom may such a stimulant be furnished? The act limits its protection to the physician who prescribes it. Its language is to the effect that he may ‘‘prescribe and furnish” alcoholic stimulants, but that in order to protect (not another, but) himself from the penalty of the act ‘‘he shall make and file an oath that he will not prescribe or furnish it unless he believes it to be a necessity.” Where these statutory provisions and limitations prevail, says Mr. Bishop, ‘‘they must in reason and it is believed on authority be accepted as the measure of the right to make such sales, so-that no further right can.be superinduced by interpretation.” Bish. St. Cr., sec. 1019. The legislature has selected the physician as the only person to be entrusted in a prohibition-district with what they deem a dangerous agency liable to' abuse, and the courts are not authorized to extend the privileges by construction to the druggist or any one else. This-was the construction given the act in Chew v. State, sup.

In the earlier case of State v. Bailey, in the same volume (p. 150), which is relied upon by appellants, the question was not directly ruled. It was objected to the indictment in that case that it did not negative the fact that the defendant was a druggist selling for medical purposes only, and it was held that the exceptions in the statute not being in the enacting clause, needed not to be noticed in the indictment. The meaning of the exception was not declared.

Chew’s case, sup., was a conviction of a druggist for selling whiskey without a license, although the sale was on the prescription of a physician as in these cases, and in a prohibited district. As the Act of March26th, 1883, makes a guilty sale in a prohibited district punishable under either the license or the three mile law, it is not probable that it was the legislative intent to make a given case violative of one act and not of the other. Chew’s case is conclusive of this.

Some of the defendants were indicted under the statute making it an offence to be interested in the sale of liquor. There was no proof to distinguish , their cases from those of Robinson v. State, 38 Ark.; 641, and others following it. See Bish. St. Cr., sec. 1024; Com. v. Nichols, 10 Met. (Mass,) 259. Affirm.