43 W. Va. 182 | W. Va. | 1897
Alvis Watts was indicted in die Circuit Court of Wayne county on the 30th day of January, 1896, which indictment is as follows : “State of West, Virginia, Wayne county, to wit: The grand jurors of the State of West Virginia in and for the body of the county of Wayne, impaneled and sworn in the Circuit Court of said county, and now attending said court upon their oaths, present that Alvis Watts, a practicing physician, in said 'county, on the 1st day of January, 1896, for the purpose of aiding one Fitzhue Stei>hens, a licensed druggist doing business as such in said county, in violating chapter 32 of the Code of West Virginia, in the unlawful sale of spirituous liquors, did unlawfully give one G. W. Fry.a written prescription for spirituous liquors, specifying therein the said G. W. Fry as the person to whom said liquors were to be furnished by said Fitzhue Stephens, druggist, together with the kind and quantity of liquors to lie so furnished, and did in said prescription falsely, knowingly, and unlawfully state that said spirituoiis liquors so prescribed were absolutely necessary as a medicine, and not to be used as a beverage; he, the said Alvis Watts, then and there well knowing that said spirituous liquors so prescribed for the said G. W. Fry were not absolutely necessary as a medicine for the 'said G. W. Fry, and were to lie used by him as a beverage, against the peace and dignity of the State. Found at the January term, 1896, of said court, upon the information of G. W. Fry, sworn in open court, and sent before the grand jury to give evidence before that body,” — to which indictment the defendant appeared and demurred, which demurrer the court sustained on the 26th day of May, 1896, and discharged the defendant, from which judgment the State was allowed from this Court a writ of error.
The attorney for defendant does not point out any particular grounds of demurrer. I have carefully compared the indictment with the statute under which it is drawn. The only point, which I can conceive could be raised as to the sufficiency of the indictment is in laying the venue, which is as follows: The grand jurors “upon their oaths present that Alvis Watts, a practicing physician, in said county, on the 1st day of January, 1896, for the purpose of aiding one Fitzhue ¡Stephens, a licensed druggist doing business as such in said county, iñ violating chapter 82 of the Code of West Virginia, in the unlawful sale of spirituous liquors, did unlawfully give,” efe. If it be contended that the words “in said county,” after the word “physician,” are merely descriptive of the person, then they are mere surplusage, and mean nothing; if used to lay the
Reversed.