49 Mo. App. 300 | Mo. Ct. App. | 1892
The defendant was indicted in Lawrence comity for ^selling liquor as druggist and pharmacist without prescription of a duly registered physician. The indictment contained two counts, one charging the defendant as a druggist, and the other •charging him as a pharmacist, under the provisions of
■ The indictment does not in either count state the name of the person to whom the liquor was sold. We held in State v. Martin, 44 Mo. App. 45, that an information against a druggist under section' 4621 of the statutes, which fails to state the name of the person to whom the liquor was sold by him, is subject to be quashed on the defendant’s motion. We held this on the ground that in the case of a sale the druggist must rest his defense, if he has any, upon a prescription or prescriptions issued by a regularly registered physician of the state, and, if the purchaser of the liquor is not named in the indictment, that defense becomes practically unavailable to him. That view was approved by the supreme court, to which we certified the case for its final determination, in an opinion filed February 2, 1892, but not yet .reported. It results from this that an indictment or information against a druggist, which fails to state the name of the purchaser, is bad even after verdict, because the statute of criminal jeofails (R. S. 1889, sec. 4115) expressly provides that nothing therein “shall be so construed as to render valid any indictment which does not fully inform the defendant of the offense of which he stands charged,” and this indictment is fatally defective in failing to do so. The
The judgment is reversed and the cause remanded to the trial feourt, with directions to sustain the motion in arrest. The prosecuting attorney of Lawrence county may then proceed, under the provisions of section 4002 of the Revised Statutes of 1889, if so advised.
it is so ordered.'