Dobson v. State

73 Tenn. 271 | Tenn. | 1880

Cooper, J.,

delivered the opinion of the court.

Dobson was presented, tried and convicted for selling an intoxicating beverage, to a person named, within four miles of an incorporated institution' of learning.

The person to whom the beverage was alleged to have been sold was introduced by the State as a witness. His testimony, and what took place is thus set out in the bill of exceptions: “I believe I got some whisky from Dr. Dobson under a prescription. He would not let me have it till I told him my prescription from Dr. Taylor was there. I paid him for it. I got it from him at his drug store in Greeneville. . . I got a half pint. It was about the last of August or the first of September last.” He was then asked whether he got whisky or brandy there at any other-time from defendant. To this question the defendant objected, but the objection was overruled. The witness said : “ I think I got a small glass once of rye whisky, and paid him a dime for it. This was some time last fall. I poured it out myself, and drank it-there.” The attorney-general, being required by the court to elect on which sale he would proceed, elected to ask a conviction on the last sale. Thereupon, the defendant asked the court to withdraw the evidence of the previous sale, which the court declined to do, and defendant excepted. It is now urged that it was error to admit proof of acts “ supposed to create a separate and distinct offense.”

As a general rule, under an indictment for one offense, evidence of separate and distinct offenses is inadmissible. An exception to this rule, as well settled as the rule itself, exists whenever it becomes material to show the intent with which the act charged was done. Britt v. State, 9 Hum., 31; Defrese v. State, 3 Heis., 53. The defense set up in the present case was,- that the sale of the beverage was made by the defendant, as a druggist, to fill the prescription of a physician. By the Code, sec. 696a, “ regularly licensed druggists are authorized to fill the prescription of any regalar practicing physician prescribing spirituous or vinous liquors as a medical remedy.” It was admitted by the State that defendant had at the time of sale, a merchant’s license duly issued in the same form as the licenses to other druggists in the county, and was acting under it. Prima faoie, a sale of liquor by the defendant under a physician’s prescription would be innocent, and in the line of his business. The character of a particular sale would depend upon the intent with which it was made. The act under which the defendant was presented makes it an offense to “sell or tipple” any intoxicating beverage, etc. The word “tipple” means, under our statutes, the retailing, of liquor in small quantities to be drank on the pren&i ises. The State was attempting to show that the defendant made the sale proven, not in reality as a druggist in due course of business within the purview o'f the license, but with the unlawful purpose of supplying it in small quantities to customers, as would be done in a tippling house. Guilty knowledge and intent on the part of the defendant was all important-, and evidence of similar acts fell within the exception to the rule, and not within the rule relied on.

On cross-examination, the witness said that the prescription, under which he got the liquor, had been given by Dr. Taylor sometime before, he did not remember how long. He was asked how much the prescription called for, but the State objected to the question, and the objection was sustained. On reexamination, he was asked by the State for whom the prescription was made, and, over the objection of the defendant, was permitted to reply that it was for .his wife. The defendant objects to these apparent conflicting rulings as error. Strictly speaking, the prescription, being in writing, for the witness speaks of it as on file, should have been produced. The State could have legally objected to any reference to the prescription without producing or accounting for it, and might, of coui’se, object to parol proof of any of its details. If, however, the defendant was permitted to show by parol that there was a prescription, it was no violation of the rule touching the best evidence, and that was the only ground upon which defendant could rest his objection, to permit the witness to state for whom the prescription was made; for non constat' that the written prescription mentioned the name of the patient. Ordinarily, it does not, and if it did it would be no part of the prescription.

It was admitted that the defendant was a regularly licensed druggist. The judge, in his charge, said to the jury, that if the defendant had a license he would not be guilty, if the sale was made to fill a prescription of a regular physician, but to excuse him “it devolved upon him to produce such license.” Error is assigned in this part of the charge. And, undoubtedly, if his Honor meant, and was so understood by the jury, as was argued, that the defendant must produce his license notwithstanding the agreement, -it was clear error. This was not his meaning. For, the very next words of his charge are: “ If the evidence shall show that at the time of the sale, if any be shown, the defendant was a regularly licensed druggist, or acting as clerk of suck regular licensed druggist, and that the sale was made in good faith to fill the presciption of a regular practicing physician, then he would not be guilty.” His Honor meant, as the context shows, that the burden of proof was on the defendant to “produce” the license, subject to- the agreement of the parties. It was produced for the purposes of the trial, and it was so understood, to use the language of the defendant’s ■ counsel in another connection, “by all the parties.”

Objection is made" to the charge of the court as going upon a state of facts not proven. Thus, his Honor said the defendant must show that the house in which the sale was made was a drug store, and kept as such; that although called a drug store, yet if you are satisfied from the proof that it was not a drug store, but simply a liquor store or drinking shop, the defendant could not justify a sale of an intoxicating 'beverage as a regularly licensed druggist. The objection is not to the substance of the charge, which is correct, but that the facts do not justify it. “ It was,” says the counsel in his argument, “ conceded to be a drug store on all hands, and no proof offered to the contrary.” It is true that the witness, and only one witness was introduced, does speak of the establishment as a drug store, and it is admitted, that the defendant had, and was acting under a druggist license. But the very point in issue was, whether the sale to the witness was in good faith as a druggist, or a sale, in violation of the law, of liquor by the drink. It •was"proper- to charge the law on the subject, even if the evidence was not full. It cannot be said, nor is it argued, that there was no evidence to sustain the verdict.

It is also objected, in the same connection, that his Honor went beyond the evidence in charging, that if defendant had a prescription for one person, and the proof should show that he sold and delivered an intoxicating beverage to another person, this would not protect him. And again, that his Honor said: . “ Should you be satisfied from the evidence that- the prescription, (if such has been shown to have been given), upon which the defendant may have sold an intoxicating beverage, was simply a fraud to enable .a party to get spirituous liquors to drink as a beverage, and not as a medicine, and that defendant knew the fa$> at the time of .the sale, then such prescription would afford him no protection.” But the first of _ these paragraphs of the charge was based upon the direct statement of the witness, and the other was proper, the testimony laying the ground upon which a legitimate deduction of the delusive character of the prescription was admissible.

Another error assigned is the refusal of the judge, on the request of the defendant, to deliver his charge to the jury in writing. But there is no law' requiring a written charge in misdemeanor cases.

Lastly, it is objected that the judge delivered a portion of his charge in the absence of the defendant and his counsel. The bill of exceptions shows, that the body of the charge was .delivered in the presence of the defendant and his counsel. Immediately, uppu its conclusion, the court adjourned for dinner, and the jury dispersed. When the court met after dinner, the jury were called before the judge in a body, and the sheriff directed to call the defendant’s counsel. After waiting sometime, and the counsel failing to appear, the court told the jury that the statute imposed a fine for the offense in question of not less than $100 nor more than $250, and that it was for them, if they found the defendant guilty, to fix the fine within these limits. It is impossible that a mere statement of the amount of the fine imposed by the law, and the duty of the jury to assess it within the limits prescribed, could have prejudiced the prisoner, there being no exception to the correctness of the statement.

There is no error, and the judgment must be affirmed.