37 Ind. App. 323 | Ind. Ct. App. | 1906
Appellant is a druggist, and was prosecuted and convicted for selling intoxicating liquor in less quantity than a quart without the written prescription of a “reputable practicing physician.”
Overruling his motion for a new trial is the only error assigned.
Appellant was indicted under §7283j Burns 1901, Acts 1895, p. 248, §9%, which provides: “It shall be unlawful for any spirituous, vinous or malt liquors to be sold or given away in any drug store in any quantity less than a quart at a time, except upon the written prescription of a reputable practicing physician.”
The material facts upon which appellant was convicted may be briefly narrated as follows: During the month of July, 1904, and for a long time prior thereto, and ever since, appellant owned and operated a drug store in the town of Winslow, Pike county, Indiana. A part of the stock in the store was whiskey which was sold for medicinal purposes on prescription. Appellant was during the month of July, 1904, for a long time prior thereto, and ever since has been, a reputable, practicing physician. During the month of July, 1904, and for a short time prior thereto^ Dr. H. T. Baily was and ever since has been a practicing physician in Pike county, Indiana. In the months of June, July and August, 1904, Frank Erwin and his wife resided in the town of Winslow, and part of June and during the month of July of that year Mrs. Erwin was sick, and during a good part of her sickness was confined to her house and to her bed, was nursed by her sister, and attended by Dr. II. T. Baily as her family physician. On the 2d day of July, 1904, during her sickness, he prescribed for her one-half pint of whiskey, to be taken in doses of a teaspoonful every two hours, and wrote out the prescription as follows: “I£. For Frank Erwin. One-half pint spirits fermenti. Sig: Teaspoonful every two hours. [Signed] II. T. Baily, July 2, 1904.” He handed it to Frank Erwin, the party therein named, and told him to get it filled. Erwin took it, went across the street to the drug store of appellant, handed the prescription to appellant, who took it, filled, it, put label on bottle with directions
Under these facts appellant ought to be relieved from the judgment of conviction, unless the statute is so iron-bound and the law so implacable that the letter of the former will not yield to its spirit, and the rigor of the latter will not bend to the demands of justice and good conscience. .It is apparent from the facts that Dr. Baily gave the prescription in good faith, for the benefit of his patient; that appellant filled it in good faith, in the honest belief that it was his duty to do so. The whiskey was used by the patient for medicinal purposes, and was administered to her as
As was said by this court in Kyle v. State (1897), 18 Ind. App. 136: “It is evident that the legislature intended by the section of the statute above quoted to inhibit absolutely the sale or gift in drug stores of intoxicating liquors to be drunk as a beverage, and that all sales or gifts in drug stores should be made only for medicinal purposes, and upon a physician’s written prescription.”
In this case the sale was made upon the written prescription of a physician, and that prescription was in proper form.
In the case of Ball v. State (1875), 50 Ind. 595, the Supreme Court said: “Any person who sells intoxicating liquor on a proper occasion, in good faith and with due caution, for medical purposes only, is as much shielded by the spirit of the act as if he were exempted from the penalty hy express words.”
This court, in Parker v. State (1903), 31 Ind. App. 650, held that where a druggist, without a license to sell intoxicating liquors and without a prescription from a physician, sold a compound consisting of whiskey and gum guiacum, to be used, and which was used by the purchaser, for medicinal purposes, such sale was not in violation of the statute making unlawful the sale of intoxicating liquors without a license. In harmony with the settled law in this State the court said, in the case last cited: “Criminal statutes are not always strictly construed.”
The principal argument by the learned Attorney-General in support of the judgment below is based upon the asserted proposition that the sale made by appellant was in violation of the statute cited, because the evidence shows that the prescription upon which it was made was not the prescription of “a reputable practicing physician.” This
In view of the facts in this case, which are all favorable to appellant, and lead us to the conclusion that he was wrongfully convicted, we deem it wholly unnecessary for us to consider or decide this question. As the evidence fails to sustain the charge in the indictment, the decision, upon the authority of Stout v. State (1881), 78 Ind. 492, and Deal v. State (1895), 140 Ind. 354, is contrary to law.
The judgment is reversed, and the trial court directed to sustain appellant’s motion for a new trial.