121 Ga. 201 | Ga. | 1904
The defendant was a druggist in the City of New-nan, and was arraigned before the city court of Newnan upon an indictment charging him with the offense of selling, for a valuable consideration, alcoholic, spirituous, malt, and intoxicating liquors and intoxicating bitters. On the trial of the case the following facts were made to appear: The defendant conducted a drugstore, and had, on divers occasions, filled for his customers prescriptions containing whisky, sometimes refilling a prescription at the instance of the person to whom it was given by a physician. Defendant did not sell any straight whisky, nor any mixture containing whisky, without a physician’s prescription. The prescriptions called for whisky in a sufficient quantity to produce intoxication, if taken in large doses, and the effect of the ingredients introduced was not to destroy the intoxicating quality of the whisky, but to merely give it a different and unpleasant taste. On one occasion the defendant was asked by a customer to sell him some whisky, but the defendant declined to do so without a doctor’s prescription; so the customer went off and got a prescription, calling for ingredients to be compounded with whisky, and the defendant filled it. This customer, when presenting a prescription designed by his physician to alleviate his suffering from a cold, would “ sometimes tell defendant [he] wanted rye whisky put in the prescription, and at other times corn whisky.” The customer tried to get defendant to leave out the drugs called for by the prescription, but defendant declined to do so, saying he had no right to fill the prescription except as it was written. Another customer was afflicted with asthma and needed a stimulant to relax his lungs. His physician gave him a prescription which called for whisky and glycerine, the effect of the glycerine being merely to sweeten the whisky and not to destroy its stimulating properties. One prescription filled by the defendant was written by another physician, who prescribed for a negro seriously ill with pneumonia; and while the prescription specified ingredients besides whisky, what the physician sought was a stimulant,
The jury returned a verdict of guilty, and the defendant made a motion for a new trial, which was overruled by the court. Ini his motion he urged the following grounds as cause for granting him a new trial, in addition to his general complaint that his conviction was contrary to law and the evidence: (1) “Because the court erred in charging the jury as follows: ‘ If you find from the evidence that a person asked the defendant to sell him a pint or a quart or any other quantity of corn or rye whisky, or some other intoxicating liquor, and the defendant told that person that he would not sell same to him unless he brought a prescription of a physician for it; and if you further find that said person soon thereafter came back to the defendant with a physician’s prescription for said corn or rye- whisky, or other intoxicating liquors, with other ingredients to be put in it; and if you further find that defendant took prescription and filled' it by taking corn or rye whisky, or other intoxicating liquors, and putting said other ingredients called for by said prescription. in the same, and then sold and delivered to said person, for valuable consideration,' the said corn or rye whisky, or other
The- offense charged against the defendant in the present case was the sale of intoxicating liquors and intoxicating bitters. The instructions to the- jury complained of nowhere intimated an opinion as to the evidentiary value of the testimony of any witness, but merely had the effect of informing the jury that, as matter of law, if the defendant sold intoxicating liquors in combination with other ingredients which did not destroy the intoxicating effects of such liquors or prevent their use as an intoxicating beverage, and the purpose of the defendant was to sell and the purpose of the purchaser was to buy whisky for use as a beverage, and the whisky was sold for a valuable consideration, the defendant would be guilty, notwithstanding he in no instance sold except under a physician’s prescription. The constituent elements of the offense were defined to the jury, and they were simply told that if those elements were sufficiently established by proof, then they should find the defendant guilty. The instructions complained of and the assignments of error thereon appear in the preliminary statement of facts. We are of the opinion that these instructions were not, for any of the reasons assigned, objectionable.
Judgment affirmed.