Miller v. State, 63 So. 269

Miller v. State

63 So. 269 | Miss. | 1913

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a conviction for an unlawful sale of cocaine.

Appellant’s complaint is that the state failed to prove that the person to whom the sale was made was not a regular licensed physician or dentist, and that the sale was not made upon a physician’s prescription. If this sale was made upon the prescription of a physician, that fact lies peculiarly within the knowledge of the defend*781ant, and, consequently, it devolves upon him, and not upon the state, to establish it. Easterling v. State, 35 Miss. 210; Thomas v. State, 37 Miss. 353; Fairly v. State, 63 Miss. 333.

There was no direct evidence that the negro boy to whom the sale was made was not a physician or dentist ; bnt the presumption is that he is neither, and therefore, if he is a physician or dentist, it devolves upon the defendant to prove it.

Section 1051 of the third edition of Bishop on Statutory Crimes is as follows: “Must the negative averment, that the defendant was not licensed or otherwise authorized to make the sales [intoxicating liquors],, be proved? Now, in principle, as this negative matter is a part of the government’s case against the defendant, it must in some way be made prima facie to appear at the trial. But not all of every case is established by oral testimony, depositions, and other documents. Much is derived from presumption. One of the presumptions is that what is common in general prevails in the particular; another, that a fact the existence of which is once shown continues. Therefore, where the. general law withholds from the mass of the people the right to make the particular sale in controversy, and permits it only to exceptional persons, of every one of whom it is certainly true that at some time he was not allowed to do it, the prima facie presumption is double: First, that the instance in controversy accords with what is general; and, secondly, that as at one "time the defendant had no license he has none now.”

It is true that Mr. Bishop in this section is dealing with the question of proof of defendant’s authority to sell at all, and not of his authority to sell to a particular person; but the reasoning by which he supports the rule there announced applies with equal force here. The state withholds from the mass of .the people the right to practice .the professions of medicine and of dentistry, and. *782grants it only ■ to exceptional persons, of every one whom it is certainly true that at one time he was not allowed to practice as such. We have here, therefore, a double prima facie presumption: First, that the person to whom this sale was made does not belong to the exceptional class of persons to whom the right to practice medicine or dentistry has been given; and, second, that as at one time he had no such right, he has none now.

Affirmed.