State v. Chipp

BROADDUS, P. J. The defendant was indicted and convicted under section 3051 Revised Statutes 1899, for allowing alcoholic liquor to be drunk about his place of business. The evidence went to show that he Avas the [559] proprietor of a drugstore and dealt in drugs, but there was no evidence that he was a licensed druggist. The fact that he permitted liquor to be drunk at his store was amply proved. He brings his case here by writ of error and the evidence is all before this court. The contention of the defendant is, that, as the State failed to prove that the defendant was a registered druggist, the offense was not proved and that he is entitled to his discharge. Section 3036, Revised Statutes 1899, provides: “It shall be unlawful for any person not registered, within the meaning of this chapter, to conduct any pharmacy, drugstore, apothecary shop or store, for the purpose of retailing, compounding or dispensing medicines or poison for medical use, except as hereinafter provided.” Section 3037, idem, provides: “It shall be unlawful for the proprietor of a drugstore or pharmacy to allow any person, except a registered pharmacist, to compound or dispense the prescriptions of physicians, or to retail or dispense poisons for medical uses except as an aid to and under the supervision of a registered pharmacist.” The further provision of the section is that a regular physician may be registered as a pharmacist upon the presentation of his diploma. Other sections of the statute provide for the qualifications and examination of pharmacists and their registration. Section 3051 idem, under which defendant was indicted, reads as follows: “Any druggist, or dealer in drugs and medicine, who shall suffer alcohol or intoxicating liquors to be drunk at or about Ms place of business, chalí be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine not exceeding two hundred dollars, or by imprisonment in the county jail not exceeding six months.” It Avill be observed that the defendant is not designated as a druggist, but as a dealer in drugs. The State contends that a dealer in drugs need not be a druggist, while defendant contends that a dealer in drugs [560] and a druggist mean the same thing — that the terms are synonymous. For the purpose of the case, we will assume that defendant’s contention is correct, of which we have no doubt. But the futility of defendant’s argument is, that he confounds the term “pharmacist” with that of “druggist,” and that there can be no druggist unless he is himself a registered pharmacist or has one in his employ. The statute in question does not undertake to say who1 is, or is not, a druggist. This statute was first enacted in 1881, prior to which, from time immemorial, there had. been both druggists and pharmacists. It was enacted for the purpose of protecting the public against the danger attendant' upon the compounding and dispensation of physicians’ prescriptions and the selling and dispensation of poisons by ignorant and inexperienced pharmacists. Its purpose was one of regulation merely. It left the druggist as it found him except in two respects only: First, as such druggist, he was prohibited from compounding or dispensing the prescriptions of physicians; second, selling or dispensing poisons for medical use, unless he'had in his employ such registered pharmacist or he was such himself. The statute does not even prohibit him from selling poison; it is only when it is sold for medical use that he commits a violation of law. He can sell patent medicines and every kind of drug that in its nature is free from poison. We confess our limited ability to enumerate the almost countless number of things that go to made a complete drugstore; an experienced druggist alone might say how many there are. But common observation teaches that the duties of a pharmacist in most instances pertain to a small part of the business carried on by a druggist. We find no difficulty in arriving at the conclusion that an individual may be a druggist or a dealer in drugs without being or having in his employ a pharmacist. It is not the drugstore that is registered, only the pharmacist. [561] Section 3013, idem, is as follows: “Apothecaries, registered as herein provided, shall have the right to keep and sell, under such restrictions as herein provided, all medicines and poisons authorized hy the National American or United States pharmacopoeia, as of 'regulated utility, except intoxicating liquors, which shall only be sold by druggists and pharmacists, as prescribed by section 3017, of this chapter.” This section taken in connection with section 3037, supra, clearly indicates that the statute is solely aimed to guard the public against the ignorance and mistakes of incompetent pharmacists, or apothecaries, and to prevent the sale of intoxicating liquors except upon the prescription of a physician. And section 3051 is to prevent the drinking of such liquors at or about the drugstores. Under the foregoing view, we hold that it was immaterial whether defendant was a registered pharmacist or had such in his employ if he was a dealer in drugs, he was liable for suffering intoxicating liquors to be drunk at or about his store. The court refused to give one of defendant’s instructions, wherein it required that the State show that the defendant consented to the drinking of the liquor at his premises and inserted in the place thereof the word suffered. This was not error. Buffered is the word used by the statute. The court refused another instruction offered by defendant. But in that there was no error, as the same in substance wras given. Affirmed. All concur.