94 Mo. App. 151 | Mo. Ct. App. | 1902
Appellant is a registered pharmacist conducting a drugstore in the town of Arlington, Phelps county, Missouri, and also a licensed physician. In April, 1900, he sold a pint of whiskey to Crow Hance and was indicted by the grand jury for selling it without a written prescription being first given therefor by a regular physician. His defense was that he wrote the prescription as a physician and filled it as a druggist and pharmacist, and that the prescription thus made out by him constitutes a complete defense to this prosecution ; but our examination of the evidence has convinced us it was one of numerous and ever-varying shifts to evade the statutes leveled against illegal sales of intoxicating liquors.
In the present instance the contention is that if Hance was not ailing when he bought the whiskey, and the prescription was not issued in good faith, defendant should have been
On the objection of the appellant the court below excluded all evidence tending to show Ilance was not sick or that the prescription was issued in bad faith, and at tire conclusion of the testimony, instructed the jury substantially as follows:
Eirst. That if they believed from the evidence the defendant was the proprietor of a drugstore and a registered pharmacist of Phelps county, and sold the prosecuting witness whiskey in a less quantity than four gallons without first having a prescription from some regular ánd practicing physician stating sard liquor was a necessary remedy, they should find the defendant guilty.
Second. That although a prescription signed by the
Third. That if the defendant was a duly registered pharmacist owning and operating a drugstore and also a licensed physician and as such regular and practicing physician issued his prescription to the prosecuting witness at the request of said witness or any person for him, and as such registered pharmacist filled the prescription, then the prescription was a complete bar to the prosecution even though the jury believed and found from the evidence t-hat it was a false pretense and the liquor was not a necessary remedy.
The criticism made of the first of the foregoing instructions is that it introduced a false issue because there was no evidence to prove the prescription was written after the sale was made. This assignment of error is best disposed of by quoting a portion of the testimony of Hance and a witness by the name of Hopkins, who was present when the sale was made.
Hance testified as follows:
“Q. Did you make any request to E. W. Hensley for a prescription? A. Not at the time, as I remember anything about.
“Q. You did not have a prescription at all when you got the whiskey ? A. No, sir.
“Q. You did not know whether there was any prescription filed there before you got the whiskey or not, did you ? A. No, sir.
“Q. Now,- do you know whether or not you asked for a prescription ? A. I am satisfied that I did not-.”
Hopkins testified:
*156 “Q. Do you know whether or not Mr. Hanee had a prescription from a doctor prescribing that as a remedy ? A. I never saw a prescription or heard anything said about one.”
The defendant himself when asked if he prescribed for Hanee before he sold the liquor, instead of answering directly that he did, merely answered that he always prescribed beforehand. The contention of appellant on this point is frivolous and will be overruled.
The second instruction is complained of on the same ground as the foregoing and for the further reason that “it makes a pharmacist who filled the prescription liable for the act of the physician who issued the same.” That argument is unintelligible when applied to the present ease, where the so-called physician and pharmacist are one and the same person. The instruction was sound, as there was evidence to justify a finding that the sale was made without a prescription and it was immaterial that one was written after the sale was made, even if it was issued in good faith. The law refuses to accept a nunc pro tunc prescription. State v. Hale, 72 Mo. App. (K. C.) 78.
The error assigned on account of giving the last-mentioned instruction is that the court refused to give it as requested by the appellant,. but interlined words importing “that the prescription must have been issued at the request of Hanee or some other person for him.” That amendment did not, in our opinion, render the instruction faulty in view of the facts of the case. We do not understand the law to be that a physician who is running a drugstore as a pharmacist has a right, sponte sud, to prescribe for any person, hale or sick, who happens to come round and then proceed to sell whiskey on the strength of his professional officiousness. If a prescription for an intoxicant issued by a physician, to be filled by himself as pharmacist, is to be anything more than a pretext for illicit sales, it certainly ought tó be the honest expression of his judgment as a physician concerning the remedy his patient
Said instruction, is criticised further because “it seeks to destroy the sanctity and confidential nature of the acts and communications between physicians and patients so jealously guarded by our jurisprudence. . . . The law does not require that a pharmacist shall know that the party to whom a prescription is issued has requested the same from a physician; a requirement of this kind would require the pharmacist to break down the confidential nature of the relation of physician and patient. He will not be guilty of this section of the statute if he does not ascertain this fact; all that he is required to know is that his prescription is regular and properly signed.” All the foregoing is little less than absurd in view of the fact that Hensley was both physician and pharmacist, unless he could be thought, as his counsel argue, to know secrets as a physician which he was ignorant of as a pharmacist.
Finding no error in the record, the judgment is affirmed.