Commonwealth v. Hovious

112 Ky. 491 | Ky. Ct. App. | 1902

Opinion of the court by

CHIEF JUSTICE GUFFY —

Reversing.

The appellee was indicted by the grand jury of Russell county, charged with a violation of section 2620, Kentucky Statutes, which reads as follows: “Drugs not to be Sold or Compounded, except by Registered Pharmacist —Penalty: Any. owner of a pharmacy, or retail drug store, who, not being a registered pharmacist, shall fail or neglect to place in charge of such pharmacy or drug store a registered pharmacist, or any such proprietor who shall by himself, or any other person, permit the compounding or dispensing of prescriptions, or the vending at retail of drugs, medicine, poisons, or pharmaceutical preparations in his store or place of business, except by or in the presence and under the immediate supervision of a registered pharmacist, shall be deemed guilty of a misdemeanor and upon conviction thereof, shall be liable to a fine of not less than twenty-five nor more than one hundred dollars and each week that he shall cause or permit such pharmacy or-retail drug store to be so conducted or managed shall constitute a separate and distinct offense and render him liable to separate prosecution and punishment therefor.” The law and facts were submitted to the court, a jury trial being waived. The court found as a fact that the defendant carried on the business of a retail druggist in person and by Ms agent, Kimble; but the court was of opinion that as the defendant was a regular, licensed physician, he had the right to carry on the' business of a retail druggist and pharmacist without obtaining the certificate required by law of pharmacists. The court was of the opinion that the law authorized á pharmacist to have a clerk not a pharmacist to carry on his business, and was of the opinion that a licensed practicing physician .might also have a clerk to sell drugs by retail in his absence, and thereupon dismissed the indictment; and the motion for a new trial by the Commonwealth having been overruled, it prosecutes this appeal.

Section 2632, c. 85, Kentucky Statutes, reads as follows: “Persons and Articles Exempt from Operation of This Act: Nothing in this act shall be construed so as to apply to, or in any manner interfere with, the sale of the usual non-poisonous domestic remedies and- medicines, and patent or proprietary medicine, by country stores in small places or rural districts. Nothing in this act shall apply to, or in any manner interfere with the 'business of any licensed practicing physician, or prevent him from supplying to his patients such articles as may seem to him proper, or with his compounding his own prescriptions.” It seems from the opinion of the circuit court that the court was of the opinion, and so .adjudged, that the provisions of the last-named section of the statute entitled a licensed, practicing physician to keep, sell, and compound drugs as a retail druggist, without any other license. The contention of appellant is that the section in question only permits such physician to sell- or furnish to or compound drugs for his own patients. It will be seen from the section, supra, that it does not, simply in general terms, exempt physicians from the provisions of section 2620. We .are of the opinion that the true meaning and intent of section 2632 is to allow a physician to compound or sell any kind of drugs to his own patients, but not to fill prescriptions sent to him by others. In other words, if a party applies to a physician for examination and treatment, the physician may furnish him any kind of drugs that in his judgment is proper, or compound for him any kind of drugs or medicine; but be can not sell drugs indiscriminately to persons calling for the same, nor compound drugs and sell them indiscriminately to all who may call for them.

It results from the foregoing that the circuit court erred in adjudging the defendant not guilty. The judgment is therefore reversed, and the canse remanded for proceedings consistent herewith.