State v. Elam
21 Mo. App. 290
Mo. Ct. App.
1886
Check Treatment
Philips, P. J.

— The defendant was convicted under an indictment founded on section two of the act concerning druggists, etc. Laws of Missouri, 1883, page 88. The essential part of this section is as follows: “No ■druggist or pharmacist shall, directly or indirectly, sell, *292give away, or otherwise dispose of, intoxicating liquora of any kind, in any quantity less than one gallon, for any purpose, except on a written prеscription, 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 ; provided, that any druggist, or pharmacist, may sell or give away, in good faith, any wine for sacramental purposes. * * *”

I. Thе indictment is objected to by defendant because it fails to negative the exception contained in the-proviso. Sоme conflict among the authorities has arisen ‍​​​‌​​‌‌​​‌‌‌‌‌​‌‌​‌​‌​‌‌‌‌​‌​‌‌​‌​​​‌​​‌​​​​‌​‌‍in respect of this matter of pleading, growing out of the true purport of the term “the enacting clause.” The rule is generally thus expressed: “If there is an exception in the enacting clause, the party pleading must show that his adversary is not within the exception; but if there be an exception in a subsequent clause or subsequent statute, that is mattеr of defence, and is-to be shown by the other party.” 8 Amer. Jur. 233-234. But, as stated by Clifford, Judge, in United States v. Cook (17 Wall. 176): “ Commentators and. judges have sometimes been led into error by supрosing that the words ‘enacting clause,’ as frequently employed, mean the section of the statute defining theoffence, аs contradistinguished’ from a subsequent section in the same statute, which is a misapprehension of the term, as the only real questiоn in the case is whether the exception is so incorporated with the substance of the clause defining the offencе, as to constitute a material part of the description of the acts, omission, or other ingredients which constitute the offence. Such an offence must be accurately and clearly described, and if the exception is so incorpоrated with the clause describing the offence that it in fact becomes a part of the description, then it cannot bе omitted in the pleading; but, if it is not so incorporated with the clause defining the offence as to become a material part of the defi*293nition of the offence, then it is matter of defence, and must be shown by the other ‍​​​‌​​‌‌​​‌‌‌‌‌​‌‌​‌​‌​‌‌‌‌​‌​‌‌​‌​​​‌​​‌​​​​‌​‌‍party, though it be in the same sеction, or even in the succeeding sentence.”

This has been repeatedly recognized by our supreme court as the correct test in such pleading’. It was so applied in State v. O'Brien (74 Mo. 549), under a statute in no material respect differing from the one under сonsideration, and containing a like proviso, similarly situated in the enacting clause. It was held that the indictment was not objectionable for omitting to negative the exception contained in the proviso.

We must, therefore, hold this objection not well taken.

II. It is next insisted by appellant that the indictmеnt is bad because it does not designate the person or persons, to whom the defendant sold the liquor. It is to be concеded ‍​​​‌​​‌‌​​‌‌‌‌‌​‌‌​‌​‌​‌‌‌‌​‌​‌‌​‌​​​‌​​‌​​​​‌​‌‍to this contention that there is respectable authority and reason to support it. Bishop Stat. Crim., sect. 1037. But the ruling of our suрreme court, on statutes in pari materia, is otherwise. The offence denounced by the statute is confined to the act of sеlling. In contemplation of the statute it does not work an injury upon, or affect the rights of another person, as in the case of an indictment for larceny, and the like, where the violation of private rights enters into the very essence of the offеnce; and, therefore, the name of the party to whom the druggist, or pharmacist sells, is immaterial. State v. Ladd, 15 Mo. 430; State v. Spain, 29 Mo. 415; State v. Jacques, 68 Mo. 200.

III. At the trial the prosecuting attorney, for the purpose of .showing that defendant was a registered pharmacist, as alleged in the indictment, introduced in еvidence, over the objection of defendant, a duly certified list of registered pharmacists, from the record thereоf in the office of the secretary of state. Defendant’s contention is that this certificate was secondary evidence ; that the best evidence of the fact is the certi*294fiecL copy of the records of the board of pharmaсy, presumably ‍​​​‌​​‌‌​​‌‌‌‌‌​‌‌​‌​‌​‌‌‌‌​‌​‌‌​‌​​​‌​​‌​​​​‌​‌‍certified to by the board, or its secretary.

By section four of the act approved March 26, 1881, (Laws of Mo. 1881, p. 130), it is provided that “the board of pharmacy shall register in a suitable book, a duplicate of which shall be kept in the secretary of state’s office, the names, etc., of all persons to whom they issue certificates, and the dates thereof.” No provision is made by this statute respecting the admission in evidence, in the courts of this state, of the certificate of rеgistration by the board, or its secretary. The manifest object of requiring the duplicate registiy to be lodged in the office of the secretary of state, is for public use and information, and to provide a ready and accessible mode of information, and means of evidence. Section 2280, Revised Statutes, provides that: “Copies of all papers on file in the offiсe of the secretary of state, * * * of of any matter recorded in either of said offices, certified under the seal of the respective offices, shall be evidence in all the courts of the state.”

We must, therefore, hold that the copy, duly certified under the seal of the office of secretary of state, was admissible in evidence for the purpose for which it was introduced.

IV. The constitutionality of the act of the legislature, under which defendant was indicted and convicted, is raised for the first time in argument at this bar. . We do not think any such question can fairly arise on this record. The jurisdiction of this court ought not to be оusted upon the mere suggestion of constitutional issues ‍​​​‌​​‌‌​​‌‌‌‌‌​‌‌​‌​‌​‌‌‌‌​‌​‌‌​‌​​​‌​​‌​​​​‌​‌‍not reasonably presented on the face of the record. We must examine the record and determine whether such issue is substantially reviewable before Ave transfer the cause. Otherwise рarties could play shuttlecock with cases between the two jurisdictions, to the undue annoyance of litigants, and the unnecessary delay of justice.

The judgment of the circuit court is affirmed.

Ellison, J., concurs; Hall, J., absent.