Town of Hurdland v. Hardy

Bland, P. J. [618] Town ordinance. [617] — The town of Hurdland has the following ordinance concerning the sale of spirituous, vinous and ferménted liquors by druggists: “Section 4. Such dealer in drugs and medicines may sell or give away, in any quantity, intoxicating liquors of any kind when the same are prescribed by a regularly [618] registered and practicing physician, and then only when such physician shall state in such prescriptions the name of the person for whom the same is prescribed, and that such intoxicating liquor , is prescribed as a necessary remedy; provided, that any druggist may sell or give away, in good faith, any wine for sacramental purposes. Any druggist who shall violate any of the provisions of this section shall be deemed guilty of a misdemeanor, and on conviction, shall be fined not less than one hundred nor more than five hundred dollars.” The defendant by an amended information was charged with a violation of this ordinance. The illegal sales were alleged to have been made on different dates to John L. Smith, Noah Bowles and S. C. Surry. The action originated before the chairman of the board of the town trustees, before whom the defendant was convicted and fined $100. Prom this conviction he appealed to the circuit court, where on a trial de novo he was acquitted and discharged by the judgment of the court. Prom this judgment the town has duly appealed. [620] SAdrugg0jLs.9U0r by [618] The defendant was the owner of a drugstore in the town of Hurdland, duly licensed as such, and had in his employ a registered pharmacist, Dr. D. L. Howerton. No clerks or assistants were regularly employed by Hardy. He testified that when for any reason he had to be temporarily absent from his drugstore, he called in some one to attend to it in his absence. Howerton was a regular registered and practicing physician, as well as a registered pharmacist, and had his office in Hardy’s drugstore. The testimony of Smith was that one McLaughlin invited him into a back room of the drugstore and he there took some cough medicine which had whisky in it, or it might have been all whisky; that some one he did not know [619] set out the bottle and a glass, and that he poured the drink into the glass, drank it and walked out. McLaughlin was not called as a witness, nor the person who sat out the glass and bottle. Smith further testified that he had got cough medicine at this drugstore on several occasions before this containing whisky, but that he had got the medicine on prescriptions given him by Dr. Howerton. Dr. Howerton testified that when he put up or compounded medicines for his patients from the stock in the drugstore with his own hands, he did not write a prescription, whether such medicines contained spirituous liquors or not, but he did not testify that he had put up cough medicine for Smith, but that he had prescribed for him. There is therefore no evidence in the record to warrant a conviction for the alleged sale or giving away to Smith. Bowles testified that he walked into the drugstore one morning; that the defendant was bending over the stove taking out ashes, and that one Padgett, in no way connected with the drugstore, motioned his hand toward the prescription case and told him to go back and take something; that he walked back behind the prescription case, found a bottle of whisky setting there among other bottles; that he took a drink and walked out. Padgett says he met Bowles at the door, did not ask him to walk back and take something, but motioned toward the prescription case. Bowles thinks Hardy was near enough to have heard the invitation of Padgett. This evidence is somewhat meager, and not such as juries generally require before they will find a defendant guilty, where they are instructed as was done in this case, that the guilt of defendant must be proven beyond a reasonable doubt. Surry testified that he had bought alcohol from Hardy on several occasions for mechanical purposes, and that he had used the alcohol in his business as a jeweler; [620] that when he made the purchases he stated to Hardy the purpose for which he wanted the alcohol, but gave no written order. The ordinance is silent as to sales of alcohol for mechanical purposes. The statutes of the state, section 4621, Bevised Statutes of 1889, permits sales for such purposes. It was not with-in the power of the town board of trustees to restrict its sales for medical purposes only, hence the sale to Surry was not in violation 'of the ordinance. Instruction number four is clearly erroneous, which reads as follows: “4th. The court instructs the jury, that although the jury may believe from the evidence that the witness Dr„ D. L. Howerton, gave to the witness Smith in the drugstore of the defendant, cough medicine containing whisky, yet if the jury believe that said Howerton prescribed and gave to said Smith said cough medicine containing whisky, as a medicine in his ordinary practice as a physician, then the same is no offense and the defendant is not liable therefor.” Dr. Howerton as a practicing physician .has the undoubted right to make and fill a prescription containing liquors from his own private stock of medicine, without making out and signing a written prescription, but he has no such right to fill a prescription from the stock of a drugstore, whether it be his own, or the drugstore of some other person. State v. Carnahan, 63 Mo. App. 244; State v. Bailey, decided by this court February 15, 1898, (not yet reported) but the jury were not misled by this instruction, for there was no evidence that aqy of the alleged sales were made by Dr. Howerton, and the instruction was harmless. The other instructions given by the court are not all technically correct, and there is some seeming contradictions in them, but there was no intricate question of [621] fact for the jury to pass upon, nor was any instruction given that tended to confuse the jury or to lead them away from the issues in -the case. Prom a review of all the evidence we are of the opinion that the verdict was for the right party and are therefore disposed to overlook technical and unprejudicial errors. Judgment affirmed. All concur.