142 Mo. App. 38 | Mo. Ct. App. | 1910
This was a criminal action commenced by the prosecuting attorney of Christian county
Appellant assigns as grounds for reversal (1) that under the evidence the Local Option Law was not adopted in the county; and (2) that the trial court gave improper instructions and refused to give proper instructions.
I. The appellant was tried on the theory that the Local Option Law had been adopted in Christian county. There was no specific finding of such fact by the court but the instructions directing the jury as to the assessment of the punishment proceeded on that theory and we are authorized to believe that the court found that the Local Option Law was effective in the county at the time the offense was committed.
The validity of the Local Option Law in Christian county was upheld by the Supreme Court of this State in the case of State v. McCord, 207 Mo. 519, 106 S. W. 27. But in that case, the only question raised, discussed and passed upon by the court was as to the sufficiency of the petition upon which the county court ordered the election. Neither side in this case claims that decision to be such a former adjudication as to foreclose the issues raised in this record. The question urged upon our attention is as to the sufficiency of the notice of the local option election. The burden of showing the invalidity of the vote on the local option question — being a matter of defense — rests upon the defendant. The records of the county court relating to the adoption of the Local Option Law need not show proof that the notice was published; where they show that publication was ordered, the burden of showing a failure of such publication is then on the defend
The State in this case introduced in evidence the records of the county court showing the presentation of a legal petition for a vote on the question of local option, the finding of the county court as to its sufficiency and the order that an election be held. The record as to giving notice is as follows: “Notice of said election to be printed in the Christian County Republican four consecutive weeks, and in the Billings Times two weeks.” As we have stated, there being no evidence introduced either by the State or the defendant showing that any publication was made, the presumption of law is that the notice as required by the county court record was made in conformity to such order and published in the county in the Christian County Republican four consecutive weeks and that the last insertion therein was within ten days before the election, and also published in the Billings Times two weeks. So that the principal question presented for our consideration is whether the order as to notice was such a compliance with the statute as to make the election valid.
The statute regulating such elections provides: (R. S. 1899, sec. 3029,) : “Notice of such election shall be given by publication in some newspaper published in the county, and such notice shall be published in such newspaper for four consecutive weeks, and the last insertion shall be within ten days next before such election, . . .” It will be seen that the order of the county court requiring the notice to be published in the Christian County Republican was in precise com- - pliance with the statute. But the above section continues in this language: “. . . and such other notice may be given as the county court or municipal body ordering such election may think proper, in order
In construing this section of the statutes, it has-been held that if the notice of the election complies with the requirements of the section by being published in some newspaper in the county for four consecutive weeks, it will be sufficient though the body ordered the election failed to give other notice as “other notice is by the statute discretionary with the council; and this, too, even though an ordinance of the city may require a certain special proclamation of the mayor as notice of any municipal election.” [State ex rel. v. Weeks, 38 Mo. App. 566.]
This section again came under consideration in the St. Louis Court of Appeals in a case involving the validity of the local option election in Lincoln county. In that case, it appeared that the Lincoln county court ordered that the notice be published as follows: “It it further ordered by the court that notice of said election be given by publication in the Troy Free Press, the Elsberry Democrat and the Silex Index, three weekly newspapers printed and published in Lincoln county, for four consecutive weeks, the last insertion to be within ten days next before the 28th day of October, 1905.” It further appeared in - said case that the notice thus ordered published was published according to order in the Troy Free Press and in the Silex Index the required four weeks; but as to the third paper — the Elsberry Democrat — it appeared that the publication was continued only three weeks and that its publication therein was suspended at the end of that time. In construing the latter clause of section 3029, hereinbefore set out, the court held that the notice of the election was insufficient and consequently that the election
The section was also under consideration in a contest involving the validity of the local option election in the city of Warrensburg in Johnson county. The city authorities in that case ordered the notice to be published in two newspapers, the Weekly Journal-Democrat and the Warrensburg Daily Star, no period of time being specified for the publication. It appeared that the notice was published in the Warrensburg Daily Star for twenty-eight days, the required length of time, but that the publication in the Weekly Journal-Democrat was such that the last issue containing the publication was the day after the election, so that as to the last named paper the notice had not been published for four consecutive Aveeks before the election. The respondents suggested that there was a compliance with the order on account of there being a difference in the wording of the orders of publication; that as to the Daily Star the order read, “for four full consecutive weeks,” while that as to the Journal-Democrat was “for four consecutive weeks,” omitting the word “full,” and they claimed that a less time was meant for the Journal-Democrat than for the Daily Star. The court held that the order as to both papers was identical; that if notice of a local option election, which need only be published in one paper, be published in more than one, it must be published in each for the full time,
The case that we now have under consideration is to be distinguished in its facts from both of said cases in that the order in the present case required publication in one paper for four weeks and in the other paper for two weeks, and that the publication was in fact made, in strict conformity to the order of the county court. In the Warrensburg case, the court declared that while it is only necessary that the notice be published in one paper, yet if published in more than one, it must be published in each for the full length of time. It will be seen that this declaration of law, while applicable to the state of facts then before that court, is a more general statement of the law than the facts required, and as to such additional statement, it is obiter dictum. The proposition so stated is supported by the cases which we have examined in this opinion and they ¡are all cases in which the notice of the election failed to conform to the order of the county court; and we are of the opinion, as applied to the facts of those cases, that it is good law, but not so when applied to the facts of the present case.
II. The appellant complains of the instructions given for the State of which the following is one:
“4. Gentlemen of the jury, although a prescription signed by the physician who sells liquor is a complete defense if such person was a regular practicing physician, yet in order to be available as such defense, it must be issued before the sale of the liquor, and that if the prescription introduced in evidence was signed without the knowledge of Ernest Wood and without any request therefor, then it was no defense to the charge.”
“A. The court instructs the jury that a regularly licensed and practicing physician may prescribe intoxicating liquor for a third person not being present and upon the application of a second party applying for such intoxicating liquor for such third party, and such prescription, if first obtained, dated, and containing the words, a necessary remedy, and signed by such practicing physician, such prescription is an absolute defense to the illegal sale of intoxicating liquors by the defendant, and if you find from the evidence that the defendant, J. A. Robertson, had such a prescription as above defined, you will find him not guilty.”
It is contended that the giving of instruction numbered four and the refusal to give instruction marked “A” constitutes reversible error.
The defendant testified that he was the owner of a half interest in the drugstore, that he was a registered pharmacist and a surgeon and physician. Following his signature on the prescription offered in evidence appear the letters “M. D.” No effort was made on the part of the defendant to show that he was a regularly registered and practicing physician otherwise than by his statement as shown above. No objection was made by the State to this statement or to the introduction of the prescription, nor was there any allusion in the brief filed by the prosecuting attorney in this case as to the insufficiency of this proof. In justice to the defendant, after the matter has been apparently waived by the. State and the case tried upon the theory that he was a regularly registered and practicing physician, we do not deem it just at this late date to resurrect this issue as of our own motion.
The evidence in the case was conflicting, and for our consideration of this appeal, we are only required to examine the evidence of the defendant himself. He admitted the sale of the whisky to Ernest Woods, and
“Robertson Drug Co.,
“J. J. Williams, Manager.
“Bank Building Southwest Cor. Square
“Ozark, Mo.
“For Mrs. Sigil Woods, by boy. Elex Lactopepsin, 2 ounces. Sp. Fermenti, 14 ounces. M‘. S. Y. As directed. A necessary remedy, J. A. Robertson, M. D. No. 4048. Date 6 — 8—1907.»
The defendant further testified that there was nothing said between himself and the boy, Ernest Woods, in regard to the prescription when the whisky was furnished. His evidence was substantially as follows: “He told me he wanted whisky for his mother and I wrote his mother’s name in the prescription. I asked him how much whisky he wanted and who for, and he said his mother. I asked him what was the trouble with his mother and he said stomach trouble. He said nothing about a prescription, but I understood that he wanted it legal. I went around behind the counter and Avrote the prescription and filled it. I did not show the prescription to the boy, and so far as I know he knew nothing about the prescription. I prescribed this whisky — a pint of whisky. I know his mother, but was not treating her at the time. The whisky was for stomach trouble. It is used in stomach trouble for weakness. The prescription was not a large amount for a person Avith that trouble. It is a proper remedy where the stomach is run down and has gastrics. There was some pepsin put in the prescription as a remedy for indigestion.»
A physician who is also a pharmacist and the owner, of a drugstore may sell intoxicating liquor on a prescription written by himself, and if it complies in form with section 8047 of the Revised Statutes of 1899, it
Where a physician issues a prescription in regular form, it is authority for the druggist to sell the liquor therein prescribed, and such druggist has a right to presume that such prescription was issued in good faith. It has also been held that where a physician who is also a registered pharmacist operating a drugstore is indicted for selling liquor, his own prescription, prepared as required by law, and produced in evidence, is a complete bar although the evidence shows that the liquor prescribed was not a necessary remedy and the prescription itself was a false pretense, and in such case the defendant must be prosecuted as a physician for illegally writing and signing the prescription or selling it under sections 3049 and 3050, Revised Statutes of 1899. [State v. Pollard, 72 Mo. App. 230.]
In the case of State v. Hensley, 94 Mo. App. 151, 67 S. W. 964, the same question was under consideration. The defense was that Hensley wrote the prescription as a physician and filled it as a druggist and pharmacist and that the prescription thus made out by him constituted a complete defense to the prosecution. The Court very pertinently remarked: “It looks very much to us like a man who issues a bogus prescription for whisky as a physician and then fills it as a pharmacist, is guilty of two crimes instead of one and ought to be amenable for both of them.” This statement meets with our entire concurrence.
We cannot declare as the law of this case that where a defendant, acting in the triple capacity of physician, owner of a drugstore and pharmacist, is charged by the State with an illegal sale of whisky, he should be allowed to shield himself behind a sham prescription which he has fraudulently and criminally fabricated for