State v. Millikan

24 Mo. App. 462 | Mo. Ct. App. | 1887

Hall, J.

The defendant urges two grounds of error in this court for the reversal of the judgment:

(1) The refusal of the circuit court to admit the prescriptions in evidence.

(2) A failure of proof of the venue.

It is provided by section 1965, Revised Statutes, that verdicts may be set aside and new trials awarded, in. criminal cases, on the application of the defendant.

By section 1966 are prescribed the causes for which a new trial may be awarded. By section 1967 it is provided that the motion for a new trial “shall be in writing and must set forth the grounds or causes therefor.”

There are similar statutory provisions concerning: motions for new trial in civil actions requiring the motion to set forth the grounds or reasons on which it is-founded. In construing said provisions of the statute it-has been held that “ all exceptions, not brought to the-attention of the trial court in a motion for a new trial,. are deemed waived.” McCord v. Railroad, 21 Mo. App. 96, and cases cited; Fox v. Young, 22 Mo. App. 383; Blakely v. Railroad, 79 Mo. 398; Carver v. Thornhill, 53 Mo. 285.

By section 1921, Revised Statutes, it is provided r-“On the trial of any indictment or prosecution for a-criminal offence, exceptions to any decisions of the court-may be made in the same cases and manner provided by law in all civil cases * * *.” In the case of the State v. McDonald (85 Mo. 543), the last mentioned statute is cited by the court and it is said: “ The rule in criminal cases in regard to matters of mere exception is-precisely the same as in civil. And as defendant saved, no exceptions during the progress of the trial, nor in. reference to the instructions, nor upon the overruling of his motions, there is nothing presented by the record calling for review.” And so we hold that the only thing that is presented for our review is the action of the court-, in refusing to admit the prescriptions in evidence, which was set forth in the motion for a new trial as the sole ground therefor. All other exceptions during the progress of the trial must be deemed waived by the defendant.

' The sales made by the defendant were made in 1886. This case is, therefore, controlled by the act of 1883. Laws of 1883, p. 90. By section 2, of that act it is provided: “Ho druggist or pharmacist shall, directly or indirectly, sell, give away or otherwise dispose of intoxicating liquors of any kind in any quantity less than one gallon, for any purpose, except on a written prescription, 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 nameof the person for whom the same is prescribed and that such intoxicating liquor is prescribed as a necessary remedy ; * The physician used the-formula “Med. ruse” in the prescriptions instead of the formula “necessary remedy” prescribed by the statute. It is not •..necessary for us to decide whether in so doing the • physician sufficiently complied with the statute or not, 1 because the court properly refused to admit the prescriptions in evidence for another reason. The prescription under the statute must be “had and obtained from -a regularly registered and practicing physician,” and there was no evidence that the physician who gave the .prescriptions was a regularly registered physician. For this reason the prescriptions were properly excluded. We may add, however, that it would be wise for physicians to follow the formula prescribed by the statute.

The judgment is affirmed.

All concur.