96 Mo. App. 343 | Mo. Ct. App. | 1902
The defendant was indicted (as a druggist) for selling liquor in less quantities than four g’allons without having a prescription from a regularly registered and practicing physician. It was shown at the trial that the sale was made December 19, 1901, on the presentation of a prescription from Dr. Johnson. It was shown that Dr. Johnson had been a practicing physician for thirty-five years. But it was not shown that he was a registered physician, and on that account the trial court excluded the prescription and defendant was convicted. Defendant then sought a new trial on the ground of newly-discovered evidence showing Johnson to have been registered on the proper record of the county clerk under Laws of 1874, p. 111. The motion was overruled.
The State claims that since the sale was made in December, 1901, it is governed either by the Laws of 1901, p. 207, or the Laws of 1883, p. 115, and that therefore .the “registration of Dr. Johnson under the Laws of 1874, is not material evidence in the trial, or retrial, because it does not tend to show either, first, that the said Dr. Johnson was registered under the act approved March 12, 1901, nor under the Act of 1883,” carried forward in the revisions of 1889 (article 1,chapter 110) and 1899 (article 1, chapter 128). The State’s claim is not well founded.
The Laws of 1874 required all practicing physicians to register, and when registered they were thereafter qualified to practice. No law since that enactment has required them to agaifi register. In regulating the practice of medicine in 1877, the Legislature exempted those who were then authorized to practice by virtue of any existing law. Laws 1877, p. 343, sec. 1. In a subsequent regulation, in 1883, the provisions then ■enacted were made non-applicable to physicians who
The evidence claimed in the motion for new trial was material in defendant’s behalf and should have secured him a new trial, unless for the following-reason :
It is urged that such evidence should have been and could have been produced at the trial. The affidavit accompanying the motion showed that no examination was made at the county clerk’s office to ascertain whether Johnson was registered, until the trial was under way and that while the trial was in progress an examination was made and no record found. But that after the close of the trial the book containing the registration was discovered. It does not appear that any effort was made before the trial and no reason is given for failing to make the examination sooner. Under such circumstances we have no right to interfere with the trial court’s discretion in ruling that this was not due and proper diligence. State v. Sansone, 116 Mo. 2; Cook v. Railroad, 56 Mo. 380; 3 Graham & W. on New Trial, 1021.
The judgment must therefore be affirmed.