142 Mo. App. 146 | Mo. Ct. App. | 1910
Lead Opinion
The prosecuting attorney of Barton county filed an information against the appellant of which the following is the first count, this being the count on which the appellant was convicted (formal parts- omitted) :
“Now at this day comes J. B. McGilvray, prosecuting attorney within and for the county of Barton and State of Missouri, and, for his amended information on his oath informs the court that one Joe Clinkenbeard, the above-named defendant, late of the county and State aforesaid, on or about the 13th day of June, A. D. 1908, at and within the city of Lamar, county of Barton and State of Missouri, at which time and place the act of the Legislature approved April 5, 1887, known as the Local Option Law, had been duly adopted and was in force as the law of the State, the said Joe Clinkenbeard, being then and there a druggist and proprietor of a drugstore;, and a pharmacist, did then and there unlawfully and wilfully sell and dispose of certain intoxicating liquors in less quantities than four gallons, to-wit: one quart of whisky and one quart of gin to one Charles Cozine; and that said intoxicating liquor was not then and there sold and disposed of on a written prescription dated and signed, first had and obtained from any regularly registered and practicing physician, stating the name of the person for whom the same had been prescribed and that said intoxicating liquor was prescribed as a necessary remedy and that said intoxicating liquor was not then and there sold for art, mechanical or scientific purposes on a
The appellant demurred to this information which demurrer was by the trial court overruled. A trial was had, and at the close of all the evidence the appellant asked a peremptory instruction in the nature of a demurrer to the evidence, as to each count, which was by the court refused. The court instructed on the first count only, and the record shows that an order was entered sustaining a demurrer to the evidence on the second count, of which the jury, the appellant claims, knew nothing. The appellant was convicted on the first count and fined two hundred and twenty-five dollars.
The State’s first witness was the city marshal, Jake McLaughlin. He testified that about June 20, 1908, he saw one Cozine go into the appellant’s place of business at the front door; that witness went around to the back door and saw Cozine come out of it with two quart bottles which were taken to the prosecuting attorney, J. B. McGilvray, and found to contain gin and whisky. The witness stated that the appellant was in the drug business on the north side of the square in the town of Lamar in Barton county, Missouri.
Austin Sands, a witness for the State, being questioned in regard to the sale of this liquor to Cozine, remembered a conversation with appellant about it; that appellant had showed him a prescription and said he thought he was legally all right in selling it.
J. B. McGilvray, who, as -prosecuting attorney, filed
A witness at the trial identified a copy of the prescription at the State’s request, but it was not actually introduced in evidence either by the State or by appellant.
A. T. McAdow, another attorney and a witness for the State, said that he and Sands had gone into appellant’s store and that they and appellant were talking; that Sands “jollied” appellant about the sale and appellant produced a prescription and asked witness for his opinion as to whether the prescription protected him in the sale of the liquor to Cozine, and the witness testified that he saw the physician’s name signed to the prescription. He also stated that appellant ran a drugstore.
During the trial, appellant admitted that he was a licensed merchant at the time of the alleged sale. The State made no attempt to prove that appellant had a registered pharmacist in his employ or that he was himself a registered druggist.
I. One contention of appellant in this case is that because the information charges the adoption of the Local Option Law in Barton county and no evidence, of such fact was produced at the trial, the information is therefore fatally defective. '
The fact that the information may have charged the adoption of the Local Option Law is not such a
II. Another ground relied on for reversal is that counsel for the State during the trial was allowed to ask leading questions. This matter has been so often passed upon by our courts that it is hardly deserving of serious consideration. The rule is well established that the asking of leading questions is a matter resting in t'he sound discretion of the trial court, and unless the abuse has been flagrant it is nb ground for a reversal of the judgment. The appellate court will not presume that the trial court abused its discretion in
The learned trial judge in this case is to he commended for his laudable effort — in allowing proper leading question — to sift the truth from the falsehood, and in bringing the testimony of the reluctant witness out of its cover of equivocation into the open light. The trial judge is a minister of justice and it is his duty by all proper means to see that right is safeguarded and wrong is punished.
III. It is assigned as error that the trial court erred in admitting evidence of the appellant’s confessions because there was no independent proof of the corpus delicti.
• Upon the charge of illegally selling intoxicating liquor, where a man is seen to go into the front door of a drugstore empty-handed and a few minutes after-wards is detected coming out at the back door, in a hurry, with a quart bottle of whisky in one hand and a quart bottle of gin in the other, the corpus delicti is conspicuous and the evidence of it is fairly convincing. The evidence in this case shows clearly that Cozine was seen to go into the front door of appellant’s drugstore by the city marshal, Jake McLaughlin, who went around to the back door and saw Cozine come out with two quart bottles which were taken to the prosecuting attorney and found to contain gin and whisky. We think this was strong evidence of the essential element of the corpus delictij and, taken in connection with
IY. It is further assigned as error that there was a failure on the part of the State to prove that the appellant was registered as a druggist and that it was incumbent upon the State to make that proof before a conviction under the information could be sustained.
Whatever may have been the earlier decisions on this question, the later authorities undoubtedly hold that an information charging that a defendant as a druggist was guilty of selling intoxicating liquor without a prescription need not also charge that he had registered under chapter 23 of the Revised Statutes of 1899 as a druggist. This matter is finally put to rest in this State in the case of State v. Chipp, 121 Mo. App. 556, 97 S. W. 236. In that case the defendant was convicted under section 3051 of the Revised Statutes of 1899 for allowing alcoholic liquors to be drunk about his place of business. The statute is as follows : “Sec. 3051. Intoooicating liquors not to be drunk on premises — penalty. Any druggist or dealer in drugs and medicines who shall suffer alcohol or intoxicating liquors to be drunk at or about his place of business, shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine not exceeding two hundred dollars, or by imprisonment in the county jail not exceeding six months.” The evidence in the Chipp case went to show that the defendant was the proprietor of a drugstore and dealt in drugs, but there
V. It is strenuously contended that the demurrer to the information should have been sustained for the reason that it charges several offenses in the same count.
It will be seen from the information that it does charge that the defendant, being a druggist and the proprietor of a drugstore and a pharmacist, did sell intoxicating liquors illegally without a prescription. It is argued because the three terms, “druggist,” “proprietor of a drugstore” and “pharmacist” are used that the information is defective. We do not think that the information is vulnerable to the objection of either duplicity or multifariousness. In this country, the business of pharmacist, or apothecary or druggist is all one, and the same person who prepares and compounds medicines also often sells them; so that in popular speech all three are used interchangeably as practically synonymous. [State v. Donaldson, 41 Minn. 74, 42 N. W. 781.] Under the law of this State regulating druggists, dealers in drugs, proprietors of
It will be seen that the first part of this section forbade the “druggist, proprietor of a drugstore or pharmacist” from disposing of intoxicating liquors, and that the latter part of the section prohibited a “druggist” from violating the provisions of the law and fixed the penalty in case of a violation. Now it is undoubtedly/ true that the penalty applied equally to the proprietor of a drugstore and the pharmacist for the reason that the general term, “druggist,” includes the “proprietor of a drugstore” who sells drugs and also a “pharmacist.” Hence, the penalty inflicted in the subsequent part of the same section on the “druggist” applied /equally to the “proprietor of a drugstore” and the “pharmacist,” who should violate this section of the
VI. Another contention is that the State’s own evidence showed that if there was any sale at all by appellant, it was on a prescription, and that the demurrer to the evidence should have been sustained for this reason, or, at least, that the second instruction for the State should not have been given.
As the evidence shows, the appellant on several occasions, when “jollied” about having sold the liquor to Cozine, stated that he had a prescription, and a paper purporting to be a prescription was in fact produced at the trial by the State and identified as a copy, but it was never introduced in evidence by either side. It is from this evidence that counsel claim that appellant made the sale on a prescription.
At the trial, appellant’s' attention was called to this prescription, but he did not introduce it in evidence, and we are asked by his counsel to presume as a matter of law that it was a valid prescription such as the statute requires to constitute a defense and to authorize the sale of intoxicating liquors. If this prescription complied with the requirements of the law, why did not the appellant introduce it in evidence? As we have stated, he had it examined on several occas
VII. In this connection, we further suggest that after the State had identified the license of the appellant as a pharmacist, he objected to its being offered in evidence as irrelevant and immaterial. We think, under these circumstances, that he could hardly be heard to object as the court excluded it on his own motion.
Upon a most careful examination of this case, under the evidence and the record, we are convinced that the judgment of conviction should be affirmed.
Rehearing
ON MOTION FOR REHEARING AND MOTION TO TRANSFER.
The motion for rehearing is overruled. As the result reached in the opinion heretofore filed in this case is opposed to the opinion in the case of State v. Goff, 66 Mo. App. 491, decided by the St. Louis