64 S.W. 865 | Tex. Crim. App. | 1901
Lead Opinion
Appellant was charged with selling liquor in a local option precinct. He defended on the ground that, as a physician, he merely gave a prescription to one James for whisky, which prescription was to be filled by the druggist. The facts show that James approached the owner of the drug store for the purpose of purchasing whisky, and was requested to apply to a physician for a prescription. James went immediately to appellant, and informed him of the fact that he wanted whisky. They went to the drugstore, and appellant states that he went behind the counter, to the prescription case, wrote the prescription, called the clerk's attention to it, and the clerk requested him to hand the whisky to James, which he did, receiving therefor $1. Appellant also contends that he examined James by asking him some questions as to his physical condition, and that James informed him that he had been riding through the inclement weather and had a cold, and appellant thereupon told him he needed whisky and gave the prescription. James said he did not get any prescription; that he did not inform appellant he was sick, etc. So appellant's defense may be stated: (1) That he was a physician, not a seller, and gave a prescription, and, if responsible at all, would be for having given an illegal prescription; (2) if this is not well taken, then he did not sell the whisky, but was acting as agent and friend of James in getting the whisky. The prescription is as follows: "Take this to Simmons' Palace Drug Store, where it will be carefully filled, and only the best and purest drugs used, opposite the postoffice, at Itasca, Texas, for Whisky, one quart. I certify that I have examined Bud James, and find him actually sick and in need of the stimulant above prescribed as a medicine. W.S. McLain, M.D., No. 3795. Date, December 20th, 1899." Stamped over the face: "Cancelled. December *217 20th, 1899. J.C. Simmons." On objection by the State this prescription was excluded because not in conformity with law, having omitted the expression "personally examined," and the certificate upon honor required by articles 403, 405, Penal Code. In our opinion, the court was correct in excluding this testimony. Under the local option law, sales of intoxicants are prohibited, except (1) when used for medicinal purposes; and (2) for sacramental purposes. The constitutionality of this law was attacked because of these exceptions; the contention being made that, as the Constitution had prohibited the sale, therefore the Legislature could not make these exceptions. This court held otherwise in Bowman's case, 38 Texas Criminal Reports, 14. It will be unnecessary to review that case, or the reasons of the court for holding as it did. We are still of the opinion that decision is correct. If the Legislature had the authority to make the exception as to sales for medicinal purposes, it would follow, as a matter of course, they had the further right to hedge that exception as was thought to be proper and reasonable. In doing this, that body has provided that for medicinal purposes intoxicants can only be sold upon a prescription certifying that a regular physician signing the prescription has personally examined the party to whom the prescription is given, and that he is actually sick; and he must certify these matters upon his honor. This is the character of prescription required by the Legislature. It is the character of prescription provided as a part and parcel of the law when put into operation; and, the Legislature having the right to prescribe the mode and manner of selling, it would follow that in order to avoid the punishment the terms of the exception must be followed. There is no kind of prescription authorizing the sale, except that provided by statute, and it is not a prescription until it has complied with the law. Where a sale occurs, an illegal prescription is no protection to the seller or the physician, because in that event the physician makes himself a party to the sale by giving an illegal prescription by means of which the law is evaded. As in misdemeanors all are principals, so, when a physician gives an illegal prescription under which a sale occurs, he is as much responsible for the sale as is the seller. Whenever a sale in a local option territory is brought about by means of an illegal prescription, the physician and seller are both liable. Each is required to know the law; each is required, in order to bring about the sale, to comply with the terms of the law; and, in failing, both are liable for the punishment prescribed for illegal sales. We are not discussing the attitude of the physician who gives a false certificate, though in exact terms of the law. He may be guilty of the sale.
Nor is there any merit in the contention that appellant was the agent of James in purchasing the whisky. The testimony for the State absolutely excludes this idea. Nor does the defendant's testimony indicate such a theory. When James approached appellant and told him he wanted whisky, appellant says he went to the drugstore with James, went behind the counter to the prescription case, and wrote a prescription, and *218 left it with the clerk, which was subsequently canceled by Simmons. This was an illegal prescription. The clerk requested appellant to get the bottle of whisky and hand it to James. Appellant did so at the instigation of the clerk, for which he received $1 in money from James. This does not come within the rule laid down by this court in previous cases, which constitutes, under certain circumstances, the party who buys the intoxicants the agent of the purchaser.
So far as these questions are concerned, this judgment should be affirmed, and it is so ordered.
Affirmed.
Dissenting Opinion
A majority of the court hold that the prescription offered in evidence by appellant, and which was excluded by the court, was properly excluded because of the omission of the word "personally" before examined, and the certificate was not "upon honor;" holding that these words are essential in a physician's prescription, as prescribed in article 403 et seq., Penal Code. While these words constitute a part of the physician's certificate, yet I do not believe that, because they are lacking, such instrument is not admissible in evidence, especially when in that connection there is proof tending to show that the statute regulating physicians' prescriptions for the sale of liquor, as in this case, was substantially complied with. To so hold would be to eliminate the element of good faith on the part of the physician, and to utterly ignore the question of intent, which I understand to be the essential element in the trial of criminal cases. This is not in accord with the doctrine announced in Price v. State, 40 Texas Criminal Reports, 428, and Garrett v. State, 1 Texas Court Reporter, 836. In this case the paper offered was in every sense a compliance, with the exception of the omission of the words "personally" and "upon honor," as before stated; and this was supplemented by appellant's proof, tending to show that he did make the personal examination required by the statute. When the paper evidence was rejected, of course appellant's defense was destroyed. The jury were never permitted to pass upon that view of the case.
I note that the majority hold that where the prescription of a physician is not in strict compliance with the terms of the law, and a sale is made under prescription, the physician makes himself a party to the sale by giving an illegal prescription by means of which the law is evaded. I am not prepared to agree that the doctrine of principals is applicable to a case of this character, inasmuch as our statute with reference to the granting of prescriptions by physicians would appear to cover this matter, and provide for offenses against physicians giving out illegal prescriptions. See articles 403, 405, Penal Code. By reference to these it will be seen that it is made an offense for any person who is not a regular practicing physician to give out a prescription in a local option precinct for the sale of liquor, or for any practicing physician who is directly or indirectly, either for himself or as the agent or employe of another, interested *219 in the sale of intoxicating liquor, to give a prescription to be used in obtaining intoxicating liquor in any such precinct. And, again, it is made an offense for any physician to give out such prescription to any one who is not actually sick, and without a personal examination of such person. So that if one is a physician, and gives out a prescription, it would occur that he should be punished under these articles. If he is interested in the sale as agent or employe of the druggist, he is punishable for granting an illegal prescription; and he is also guilty of an offense if he gives a prescription to one who is not actually sick, and without a personal examination. Now, should a physician grant a prescription to one who is not actually sick, and without a personal examination, would he be punishable as a principal to the offense of a sale, or, rather, would he not be punishable under the statute for issuing an illegal prescription? It occurs to me that where a regular, practicing physician has in good faith performed his duty by a personal examination of the patient, and then given him a prescription for the purpose of obtaining whisky for his ailment, if the certificate should by accident or mistake be wanting in some of the requirements of the statute this should not exclude it as evidence, but, in connection with the proof offered, it should be admitted, and the jury authorized to pass on the question. If there was no good faith, or it appeared that the practicing physician was directly or indirectly interested in the sale, he would be punishable, not for making the sale, but for granting the illegal prescription. Key v. State, 37 Tex.Crim. Rep..
[NOTE. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]