162 N.W. 155 | S.D. | 1917
Lead Opinion
Other assignments of error are made, but it will serve no useful purpose to refer thereto.
The judgment and order appealed from- are reversed, and the cause remanded for further procedure consistent with this opinion.
Dissenting Opinion
I most earnestly -dissent from that part of the foregoing- opinion wherein my Colleagues have construed the provisions of sections i and 2, c. 123, Laws 1905. Those sections read as follows:
‘‘Sec. i. That it shall he unlawful for any physician, to write, furnish, sell or give to any person any prescription for any kind of intoxicating liquors to be used as a beverage or for any purpose except medicinal purposes in case of actual sickness.
“Sec. 2. It shall be unlawful for any physician to furnish any person a prescription for any kind of intoxicating liquors, except to patients of such physician in case where such patient ;s afflicted with some disease and his e-cnditio-n is su-ch that, in the opinion of said physician, the taking by s-aid -patient of the intoxicating liquors prescribed would be beneficial to s-aid patient.”
It wilt be seen that section 1 specifically provides that no prescription for intoxicating liquors can be given “except for medicinal purposes in case of actual sickness.” No language could be -plainer and declare more absolutely that the lawfulness of a sale depended upon the fact of sickness, 'and not upon the doctor’s belief in relation thereto. Section 2 in no manner modifies section 1, but, on the other hand, names those conditions, and those only, under which a physician -can -give a prescription for “medicinal purposes in case of actual sickness.” He cannot give such a prescription merely because the patient is actually sick; but this section restricts the physician further and prohibits him from giving such prescription even when his patient “is afflicted with some disease” unless the physician believes that this “disease,” this “actual sickness,” is of such a nature that this particular medicine, intoxicating liquors, “would be beneficial- to said-
“There are many instances in recent times where the Leg-filature in the exercise of the police power has prohibited, under penalty, the performance of a specific act. The doing of the inhibited act constitutes the crime, and the moral turpitude or purity of the motive by which it was prompted and knowledge or ignorance of its criminal character are immaterial circumstances on the question of guilt. The only fact to be determined in these cases is whether the defendant did the act. In the interest of the public the burden is placed upon the actor of ascertaining at his peril whether his deed is within the prohibition of any criminal statute.”
An examination of the cases cited in support of the above shows various subjects covered by such statutes, sales of liquors, sales of oleomargarine, shipping prohibited articles, obstructing streets, bigamy, rape, selling adulterated foods, etc. The above holding is in direct line with that of this court in State v. Sasse 6 S. D. 212, 60 N. W. 853, 55 Am. St. Rep. 834, and other cases where knowledge or intent was not made an element of the crime under consideration. If the grocer is criminally liable for sale of adulterated food regardless of his honest belief in the purity thereof, if the butcher is criminally liable for sale of meat from a calf below the age for killing as fixed by statute though the butcher honestly believes such calf to be of lawful age, if a raiL road is liable for shipping prohibited articles even though its officers and employes honestly believe the articles to be of a non-prohibited class, if a man is liable to be punished for bigamy when he honestly and for good reason believes his lawful spouse to be dead or that a valid decree of divorce had been granted severing the marriage relation, why should not such a statute as the one before us be construed as it clearly reads" and a phy
Concurrence Opinion
(concurring specially.) I concur in a reversal of the judgment upon the ground that but for the unwarranted cross-examination of defendant as to transactions other than the one relied upon the evidence would have been entirely insufficient to warrant a conviction. The defendant was practically forced to furnish evidence to convict himself in violation of article 6, § 9, of the Constitution.
I also concur in the views expressed by WHITING, J.,'as to the proper interpretation of sections 1 and 2 of chapter 123, Laws I905-