State v. May

| S.C. | Apr 28, 1890

Lead Opinion

The opinion of the.court was delivered by

Mr. Chief Justice Simpson.

The defendant, appellant, a druggist in Yorkville, was tried for and convicted at the April term, 1888, of General Sessions, for the County of York, of selling whiskey to one John Robinson without a prescription from a ■practising physician.

He appealed upon the following exceptions: “1. For error in refusing to permit the defendant, on cross-examination, to ask the principal witness for the State questions concerning his character, calling, and general conduct as an informer in like prosecutions, for the purpose of affecting his credibility. 2. For error in directing the jury, that if the defendant was in possession of a prescription from a regular practising physician calling for the sale of three pints of whiskey, and he furnished no more than the quantity prescribed, but furnished it on two or more occasions, he had violated the act of December, 1884, amending section 1743 of the General Statutes. 3. For error in instructing the jury, that ‘if a patient goes to a physician and says, “Doctor, I want whiskey ; you must give it to me,” and the physician, or apothecary either, gives the man whiskey simply to gratify his depraved appetite for whiskey, or mania for whiskey, he violates the law, clearly violates it’; thus impressing the jury that the violation of the law by the physician improperly giving a prescription, was a violation by the druggist or apothecary who sold under it. 4. For error in holding that the person who w'as prescribed for by the physician must be the person who presents the prescription and makes the purchase from the druggist.” And the defendant now renews his motion for the new trial denied him in the Circuit Court.

How far a defendant may be indulged in the cross-examination of a witness for the State, with the view of impeaching his credibility, is not clearly settled; we mean to say, that there is no clearly established rule defining the exact limit within which such cross-examination is confined. It seems that the matter is left very much in the discretion of the presiding judge, and each case must be governed by its own surroundings and facts. Any abuse of discretion on the part of the judge, of course, would be error, but such abuse should appear very clearly before the court of last resort would feel warranted in interfering. In this case, we do not find such abuse. On the contrary, we think the questions propounded were not only irrelevant to the matter at issue, but also as to the object to be accomplished thereby, and, therefore, they were properly excluded.

As to the second exception. It seems that the defendant was presented with a prescription from a regular practising physician, given to one John Jimmerson, for three pints of whiskey, upon which the whiskey was sold to one John Eobinson, who, it seems, presented it, but the quantity of whiskey mentioned was not all furnished at the same time; it was furnished at three different times, a pint each time. His honor charged that this was a violation of the act, holding that the act allowed one sale only, and that here were three sales. Whether this charge was correct, depends upon the construction which shall be given to the act in question. The language of the act is as follows : “No druggist or apothecary shall sell more than one time upon the same prescription, whether the same shall direct more than one sale or not. * * * And if a sale be made a second time upon the same prescription, the druggist or apothecary so selling shall be deemed to have sold without any prescription.” Now, what is the true intent of this act? ■ The legislature must have intended either that the patient could not buy on a prescription more than once, whether the prescription was filled as a whole at that time or not, or that the druggist could not sell more than one entire prescription on the same paper. That is, after it had been filled and furnished as a whole, he could not sell a second time thereon — whiskey being regarded as a medicine, useful in many complaints, and yet very dangerous and corrupting when used excessively merely as a beverage. The legislature, while not countenancing the latter use of it, yet, with the view to meet the wants and necessities of invalids and sick persons, passed the act above, so as to enable such persons to obtain it legally as a medicine only, and the act should be construed under the light of that purpose.

It is very clear that it was not the intent of the legislature that a prescription should be the means of allowing a party to procure whiskey to be used as a beverage, and hence it would be a violation of the law for one to file in the office of a druggist a prescription from a physician as a standing license to get whiskey in a certain quantity at any time he chose, and, no doubt, to prevent this, the act declared that there should be but one purchase on a prescription ; or, at least, this inhibition, as thus explained, would prevent the patient from getting any more whiskey than the prescription called for. But wm cannot suppose that it was the purpose of the act to require the patient to get the quantity prescribed — all of it — at one time. With many persons, this might not be within their power, and yet their condition might demand it all, not immediately, but during their sickness; and in such case why should not the patient be allowed to take a portion then pressinglv needed, and afterwards to get the remainder as his continued sickness required ? When a reputable physician prescribes a certain quantity of whiskey for his patient, the presumption certainly is, not only that whiskey is necessary, but that the quantity prescribed is also necessary ; andwhen.no more than the quantity prescribed is furnished by the druggist, though this quantity may not all be furnished at the same time, we cannot think that in every such case the act has been violated. True, if it should appear in any case that the prescription had been lodged not to be used to procure the whiskey as a medicine, but to get it at different times as a beverage, until the quantity was exhausted, and this was known to the druggist, this would be an evasion and subterfuge, amounting to a guilty violation of said act.

From these considerations, we think his honor construed the act rather too stringently when he ruled as he did. We think that each case where the whiskey is furnished at different times should depend upon its own facts, and that it should be left to the jury to determine when whiskey is furnished under one and the same prescription at different times, but yet no more is furnished in all than the quantity called for, whether or not it was a bona fide transaction or an evasion of the law, in whole or in part.

We do not think that the inference complained of, as following what was said by his honor, specified in the third exception, is a legitimate inference.

Nor do we find in the charge a foundation for the fourth exception.

It is the judgment of this court, that the judgment of the Circuit Court be reversed, and that the case be remanded for a new trial.

Mr. Justice McGowan.

I concur. An act making an of-fence criminal should be strictly construed. The words are, “No apothecary shall sell more than one time upon the same prescription, whether the same shall direct more than one sale or not.” As it seems to me, the point is not whether the whiskey was delivered at different times, but whether there “was more than one sale.” The prescription called for three pints, which was sold at “one sale,” and delivered as required.

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Dissenting Opinion

Mr. Justice McIver,

dissenting. I concur in the conclusions reached by the Chief Justice, except upon the second ground of appeal, and from that I dissent. It seems to me that the only question is, whether the Circuit Judge erred in instructing the jury, that if a druggist or apothecary sells spirituous liquor more. than one time on the same prescription, he violates the law, and upon satisfactory proof to that effect he should be convicted. It does not seem to me that there was'any error in such instruction. On the contrary, the statute expressly declares: “That no druggist or apothecary shall sell more than one time upon the same prescription. * * * And if a sale be made a second time upon the same prescription, the druggist or apothecary so selling shall be deemed to have sold without any prescription.” Act of 1884, 18 Stat, 797. And the charge was precisely in accordance with the statute. The fact that the prescription was for three pints of whiskey, and that no more than that amount was sold under the prescription, cannot affect the question, for the defendant himself in his testimony says: “I sold whiskey on that prescription three times — one pint each time,” and the charge as given was exactly applicable to that testimony.

I do not think that the statute can be construed as authorizing the sale of spirituous liquors, under a prescription for a specified amount, in fractional portions of that amount at different times, provided the whole amount sold do not exceed the amount specified. Such a construction would enable one, under a prescription for a quart, to obtain the liquor by the drink at such times as might suit his taste or convenience; and that was, doubtless, one of the very things which the statute was designed to prevent. In addition to this, under the former retailing law, which forbade the sale of spirituous liquors without a license in quantities less than three gallons, I think it was uniformly held that where one contracted for three gallons, with the understanding that it was to be delivered at such times and in such quantities as it might be called for, the law was violated. This is sustained by the authorities cited by the solicitor.¹

I think, therefore, that the judgment of the Circuit Court should be affirmed.

Judgment reversed.

1 Bish. Stat. Crimes, § 1013; Murphy v. State, 1 Ind., 366" court="Ind." date_filed="1849-06-01" href="https://app.midpage.ai/document/murphy-v-state-7031640?utm_source=webapp" opinion_id="7031640">1 Ind., 366; State v. Kirkham, 1 Ired., 384.