18 Ind. App. 136 | Ind. Ct. App. | 1897
Appellant was convicted of giving away intoxicating liquor in a drug store without a prescription. He assigns as error the overruling of his motion for a new trial. A new trial was asked on the gounds that the verdict was contrary to the law and evidence, and was not sustained by sufficient evidence.
The section of the statute upon which the prosecution is based reads: “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 on the written prescription of a reputable practicing physician. Any person violating any of the provisions of this section shall be fined,” etc. Acts 1895, p. 248, sec. 9 1-2.
The evidence shows that appellant was in charge of his drug store at th„e date charged in the indictment, and that he was in the store at the time. In the rear end of the store, about ten or twelve feet from the rear wall, was a prescription case. A door led from the rear end of the room into an adjoining wareroom. While appellant was engaged in sweeping the store, and was near the case and this back door, he saw the prosecuting witness, Morgan, go behind the case, and begin blacking his shoes. Shortly afterwards, and while appellant was still engaged in the rear part of the store, A. E. Welker, a practicing physician, came in and went behind the case, and poured from a flask two glasses of' whiskey, drinking one himself, and handing the other to the prosecuting witness, which the witness drank. Welker and the prosecuting wit
The liquor was not paid for at the time, but was charged to Welker, who had an account at the store.
It is contended that the evidence fails to show a gift by the appellant, and that if there was a gift of liquor to any one, appellant is protected by the prescription.
If appellant was present, and knew at the time that Welker gave the whiskey to Morgan, he became a party to a misdemeanor. It is an elementary principle that all persons who participate in an act or transaction which is a misdemeanor, are alike guilty.
It is true, there is no direct evidence that appellant knew at the time that the gift was made by Welker to Morgan. Morgan testified that appellant was within three or four feet of Welker, and could have seen and beard what was going on; that there "was nothing to prevent his seeing and hearing. Appellant does not deny this, and admits he saw Welker and Morgan in the store, and that at the time he was engaged near the rear door back of the prescription case, and that within three or four minutes after they went out he went to the case, and found the prescription, which he placed on a hook with other prescriptions. No other persons were in the store at the time. Appellant may not have actually seen what took place, and it may have been done without his knowledge or consent, but the facts are sufficient to warrant the jury in inferring that the manner in which the gift was made was resorted to for the purpose of evading the statute.
When the State had shown that a gift of intoxicating liquor had been made in appellant’s drug store while the appellant himself was present in the drug store, and only a few feet away, with nothing to pre
It is evident that the legislature intended by the section of the statute above quoted to absolutely inhibit the sale or gift of intoxicating liquors in drugstores to be drunk as a beverage, and that all sales or gifts in drug stores should be made only for medical purposes, and upon a physician’s written prescription.
The statute has made complete provision for the manner in which intoxicating liquor to be drunk as a beverage may be sold or given away. A sale or gift for such use in any other manner is a violation of law. The statute has recognized the necessity of providing for sales or gifts of liquor in drug stores to be used for medical purposes, and has provided that it can be had for this purpose only through'a reputable practicing physician. A druggist is not authorized to sell or give away intoxicating liquor in any quantity less than, a quart at a time, except upon a written prescription stating for whom the liquor is intended, the quantity desired, the manner in which it is to be used, and signed by a reputable practicing physician. The pre
As was said by the Supreme Court in Tilford v. State, 109 Ind. 359, in construing a similar statute: “There is a reason, and a solid one, for requiring a ‘written prescription,’ for it is evidence of a tangible and lasting form, and it puts a professional man upon record as having deliberately advised a patient to buy, and a druggist to sell, liquor on Sunday. It is an effective means of preventing abuses, and is quite as important in a case where the druggist is himself a physician as in any other.” See Barton v. State, 99 Ind. 89.
In the case at bar the prescription is addressed to no one. The quantity of liquor to be furnished is not stated, but is left to the discretion of the seller or purchaser. It simply prescribed as much whiskey as the patient wants to buy. Dr. Welker, who wrote the prescription, testified that the letters “q. s.” in the prescription meant “sufficient quantity,” or “quantity as desired.” Such a prescription is not a compliance with the statute, and gives no protection to appellant. Edwards v. State, 121 Ind. 450; Caldwell v. State, ante, 48.
Judgment affirmed.