State v. Mullenhoff

Beck, J. i Intoxicating ' liquors: per-terminated by repeal of law. I. The defendant was a member of a firm, doing business as druggists, composed of 0. W. -®ne5 a registered pharmacist, and himself. He was not a registered pharmacist. The firm held a permit to sell intoxicating liquors . 51 x under the law m force prior to the taking effect of chapter eighty-three, Acts Twenty-first General Assembly. When that statute took effect, and the sales for which defendant is indicted were made, the time had not expired for which the permit was limited according to its terms. Subsequent to making these sales, Hine, defendant’s partner, received a permit under .chapter eighty-three, Acts Twenty-first General Assembly. Counsel insists that defendant’s right to sell under the first permit was not affected by the repeal of the statute under which it was issued. To support this position he relies upon Code, section forty-five, paragraph one, which declares that “ the repeal of a statute does not * * * affect any right which has accrued * * * [273] under, or by virtue of, the statute repealed.” The right contemplated by the section pertains to any property right, or person, of the citizen. The permit in question bestowed upon defendant no such right, but was rather authority conferred by the statute in the exercise of the police power of the state, which regulated the sale of intoxicating liquors. The state, by the permit, did not abandon its authority to forbid at any time the sales permitted, or change the condition upon which they may be made. If the law were otherwise, permits issued under chapter eighty-three, Acts Twenty-first General Assembly, which are indifferent as to time, would confer upon those holding them perpetual authority to sell intoxicating liquors. The district court rightly held-, in the instructions, that defendant’s right to sell liquor for medicinal purposes depended upon compliance with chapter eighty-three, Acts Twenty-first General Assembly. __. unlaw. mistakBnnder bebefII. The defendant asked an instruction to the jury to the effect that-he could not be convicted, if in good faith he believed he had the right to sell for medicinal purposes. The honest but mis:' taken belief that an act is lawful will not protect one indicted therefor from punishment, if it be criminal under the statute. An instruction to this effect, asked by defendant, was rightly refused. State v. Hayes, 67 Iowa, 27, does not sustain the position of defendant. III. Chapter eighty-three, Acts Twenty-first General Assembly, repeals prior enactments relating to permits to pharmacists. State v. Courtney, 73 Iowa, 619. The later statute must, therefore, control, and a permit issued under a prior repealed statute did not protect defendant. s _. sale by non-registered pharmacist under permit to firm. IY. The court instructed the jury that defendant, who was not a registered pharmacist, had no right to sell, independently, intoxicating liquors for medicinal purposes, after the permit was issued, but was authorized to assist a registered pharmacist in selling under his [274] “immediate personal direction and supervision.” This instruction is complained of by counsel. Chapter seventy-five, Acts Eighteenth General Assembly, forbid any one not a registered pharmacist to dispense medicine, except as an aid to, and under the supervision of, a registered pharmacist. The language of the instruction substantially accords with this restriction. The n on-registered clerk may, under the law, aid the pharmacist under his supervision. This implies that the clerk shall assist the pharmacist, who shall supervise the clerk’s work. It seems to us that the pharmacist must have ‘ ‘ immediate personal direction and supervision” of the work. The instruction, we think, is correct. 4. : criminal liability of pharmacist. . Y. We understand that counsel for defendant insists that defendant can only be punished under the pharmacy statute for misdemeanor, and cannot be . _. n _ . _ indicted for nuisance, under the statute for-_ . ' . . ,. _ bidding the sale of intoxicating liquors. But defendant’s character as a pharmacist, and the permit given to him or his partner, would not protect him for unlawful sales. He is to be punished therefor as any other violator of the statute forbidding the sales of intoxicating liquors. State v. Noel, 73 Iowa, 682; State v. Courtney, 73 Iowa, 619. 5. ckihtnai. More’gran! uuted:ndora-n" ments. yi. A witness testified before the grand jury, as shown by the minutes of the evidence, that he was auditor of the county. The minutes showed no other evidence given by him. He testified ^ the trial that he’ was the auditor, and produced the reports of sales made by defendant’s firm. He stated that he understood that defendant was a member of the firm of Hine & Co. Defendant objected to this witness giving his testimony, on the ground that the minutes of the evidence before the grand jury failed to set it out. The identification of the reports by the witness was not independent evidence, but connected with the reports themselves. It is not shown that these reports were not noted upon the minutes of the evidence before the grand jury. We [275] cannot presume that they were not. Indeed, being documentary evidence, it was not necessary to set them out, or note them, in the minutes of the evidence. His statement that he understood that defendant belonged to the firm making the reports was not a disputed fact; defendant testified directly to it. No possible prejudice could have resulted to defendant from the evidence. These views dispose of all the questions of the case. The judgment of the district court is Affirmed.