30 Mo. App. 498 | Mo. Ct. App. | 1888
No objection to the indictment has suggested itself to us in addition to the special objections made in the defendant’s demurrer. The validity of those objections is, therefore, the question for our determination.
The objection that the indictment does not follow the words of the statute is bad. An indictment is good
The objection that there is no time alleged in the indictment as to when the defendant was a dealer in drugs, or when he committed the offence, is not well made as a matter of fact. The indictment is specific as to such time. Besides time is not of the essence of the offence charged. State v. Findley, 77 Mo. 338.
The objection that the indictment does not negative the exception made by the statute creating the offense is not well taken. The exception is as follows : “ Except on a written prescription, dated and signed, first had and obtained from some regularly registered and practicing physician, and then only when such physician, shall state in such prescription the name of the person for whom the same is prescribed as a necessary remedy.” The indictment charges that the intoxicating liquor sold by the defendant was not prescribed by a regularly registered physician. This averment is so broad and comprehensive as to completely negative the exception made by the statute. The exception requires a written prescription of a certain form, containing a certain statement, from a regularly registered and practicing physician ; the averment is that the intoxicating liquor was not prescribed by a regularly registered physician, which is equivalent to saying that there was no presscription from such a physician of any form whatever, containing any statement of any kind. The averment of the indictment cannot be true, and the facts on which the exception made by the statute is based exist in- this case. The indictment sufficiently negatives the exception of the statute when such is the case.
The averment of the indictment, referred to above, contains much more than stated, but, since there is nothing in the context in any way qualifying or limiting the averment as stated by us, we do not refer to it in any other particular. The averment in other respects may be considered and treated as surplusage.
The fact that the indictment was drawn under the statute of 1879 does not render it bad, if it states an offence under the statute of 1883 which governs in this case. We can see no objection to the indictment. In our opinion it states an offence under the statute of 1883, Laws of 1883, p. 90.
Judgment reversed and cause remanded.
