Baeumel v. State
| Decision Date | 17 March 1890 |
| Citation | 7 So. 371,26 Fla. 71 |
| Parties | BAEUMEL v. STATE. |
| Court | Florida Supreme Court |
Error to circuit court, Polk county; G. A. HANSON, Judge.
Syllabus by the Court
1. In a prosecution for carrying the business of dealer in spirituous liquors without a license, under the act of March 5, 1883, it was not necessary for the indictment to allege that the defendant was not a durggist at the time of the sales of liquor, nor that the liquor was not used by a duruggist in compounding medicines, and the preparation of prescriptions made by a regular practicing physician. If it was a fact that the liquor was sold as a component part of medicines upon such prescription, it was a matter of defense that the defendant could have availed himself of.
2. As a general rule, if there is an exception in the enacting clause of a statute, the party pleading must show that his adversary is not within the exception; but, if there be an exception in a subsequent clause, or a subsequent statute, that is matter of defense, and is to be shown by the other party.
3. A charge that 'the fact that the defendant's place of business was a drug-store does not raise any presumption in his favor; and, if the state has proven to your satisfaction that any single sale of spirituous liquors as made by the defendant, and the defendant has not then shown that such sale was justified under the privileges of a druggist, which he claims, then you should convict,'--held to be correct.
4. The penalty prescribed for the violation of the act under which the defendant was convicted was not less than double the amount of the license required to authorize the selling of liquor, $600; and a fine of $900 for the violation of said act was not excessive.
Wilson & Wilson and J. L. Albritton, for plaintiff in error.
William B. Lamar, Atty. Gen., for the State.
The plaintiff in error was tried and convicted at the fall term of the circuit court, 1889, for carrying on the business of dealer in spirituous, vinous, and malt liquors without a license. Motion was made for new trial, which was overruled and the case was brought here upon writ of error from the order of the circuit court overruling said motion.
The first error assigned is that the court erred in refusing to quash the indictment. The indictment contains four counts the first of which charges the defendant with carrying on the business of dealer in spirituous liquors without a license the second charges him with carrying on the business of dealer in spirituous liquors, to-wit, whisky, rum, and alcohol, without a license; the third charges him with carrying on the business of dealing in malt liquors without a license; and the fourth charges him with carrying on the business of dealer in malt luquors, to- wit, lagerbeer, without a license. The defendant moved to quash the indictment (1) because the indictment does not charge any offense against the defendant; (2) because the indictment is founded upon the general law of the state, which law received the signature of the governor on the 5th day of March, 1883, and that the indictment does not allege facts and circumstances sufficient to bring the defendant within the terms of the statute; (3) because the indictment does not allege that the defendant was not a druggist; (4) because the indictment does not allege that the whisky, wines, and beer alleged to have been sold were not sold in the compounding of medicines, and in the preparation of prescriptions made by regular practicing physicians; (5) because the indictment does not allege that the whisky, wines, and beer alleged to have been sold were not such mixtures as are made officinal in the United States Dispenstroy; (6) because the indictment does not allege that the defendant was not a druggist, and that said liquors, wines, and beer were not sold in the manner in which druggists were authorized to sell the same, to-wit, in compounding medicines under a prescription of a regular practicing physician; (7) because of other good and sufficient reasons appearing upon the face of the indictment.
The defendant was indicted under the general revenue law of March 5, 1883, (chapter 3413, Laws Fla.,) entitled 'An act for the assessment and collection of revenue.' The eleventh section of this act provides that 'dealers in spirituous, vinous, or malt liquors shall pay a license tax of three hundred dollars ($300) in each county for each place of business, and dealers paying the same, and receiving a license therefor, shall be authorized to sell spirituous, vinous, and malt liquors, or any of such liquors, but neither spirituous, vinous, nor malt liquors shall be permitted to be sold unless said license tax is first paid, and a license therefor first taken out;' and that 'any person who shall sell spirituous, vinous, or malt liquors, or any preparation composed in whole or in part of such liquors, shall be deemed a dealer in spirituous, vinous, or malt liquors, within the meaning of this act: provided, however, that a druggist shall be allowed to use spirituous, vinous, or malt liquors in compounding medicines, and the preparation of prescriptions made by regular praticing physicians: provided, further, that druggists may sell such mixtures as are made officinal in the United States Dispensatory without being required to take out a license to sell spirituous, vinous, or malt liquors.' And the twelfth section of the same act fixes the penalty for selling spirituous, vinous, and malt liquors at not less than double the amount required for such license.
The contention of plaintiff in error is that the indictment was defective in not alleging that the plaintiff in error was not, at the time of the alleged selling of spirituous vinous, or malt liquors, a druggist; and he cites the following authorities in support of this proposition: Humphreys v. State, 17 Fla. 381; 1 Bish. Crim. Proc. § 519; Beasley v. State, 18 Ala. 535; Sarah v. State, 28 Miss. 267; People v. Telford, 23 N.W. 213; Thompson v. State, 37 Ark. 408; State v. Abbey, 29...
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