Bradley v. State

• Decision Date: 12 November 1904
• Citation: 48 S.E. 981,121 Ga. 201
• Parties: BRADLEY v. STATE.
• Court: Georgia Supreme Court

48 S.E. 981

121 Ga. 201

BRADLEY v. STATE.

Supreme Court of Georgia

November 12, 1904

Syllabus by the Court.

1. On the trial of one charged with violating the local option liquor statute it is not error for the court, in charging on the issue of fact as to the intoxicating nature of the liquor sold, to instruct the jury, in substance, that the accused though a licensed druggist, could not legally sell a compound or preparation of intoxicating liquor and other ingredients if the intoxicating liquor retained its distinctive character and effect, and such compound or preparation was reasonably suited to be used as an intoxicating beverage.

The court may, in its charge, group the constituent elements of an offense, and instruct the jury that, if these elements be proved beyond a reasonable doubt, they should convict the accused.

2. Where irrelevant testimony was not objected to, it is not improper for the court to instruct the jury that such irrelevant testimony should be disregarded in passing on the real merits of the case.

3. That sentence is excessive is not reviewable in a motion for a new trial.

4. The evidence warranted the jury in finding that the accused was guilty of at least a technical, if not a deliberate violation of the local option liquor law.

Error from City Court of Newnan; A. D. Freeman, Judge.

G. R. Bradley was convicted of violating the liquor law, and brings error. Affirmed.

W. C. Wright, for plaintiff in error.

W. G. Post, Sol., for the State.

EVANS J.

The defendant was a druggist in the city of Newnan, and was arraigned before the city court of Newnan upon an indictment charging him with the offense of selling, for a valuable consideration, alcoholic, spirituous, malt, and intoxicating liquors and intoxicating bitters. On the trial of the case the following facts were made to appear: The defendant conducted a drug store, and had, on divers occasions, filled for his customers prescriptions containing whisky, sometimes refilling a prescription at the instance of the person to whom it was given by a physician. Defendant did not sell any straight whisky, nor any mixture containing whisky without a physician's prescription. The prescriptions called for whisky in a sufficient quantity to produce intoxication if taken in large doses, and the effect of the ingredients introduced was not to destroy the intoxicating quality of the whisky, but to merely give it a different and unpleasant taste. On one occasion the defendant was asked by a customer to sell him some whisky, but the defendant declined to do so without a doctor's prescription, so the customer went off and got a prescription, calling for ingredients to be compounded with whisky, and the defendant filled it. This customer, when presenting a prescription designed by his physician to alleviate his suffering from a cold, would "sometimes tell defendant [he] wanted rye whisky put in the prescription, and at other times corn whisky." The customer tried to get defendant to leave out the drugs called for by the prescription, but defendant declined to do so, saying he had no right to fill the prescription except as it was written. Another customer was afflicted with asthma, and needed a stimulant to relax his lungs. His physician gave him a prescription which called for whisky and glycerine, the effect of the glycerine being merely to sweeten the whisky, and not to destroy its stimulating properties. One prescription filled by the defendant was written by another physician, who prescribed for a negro seriously ill with pneumonia, and, while the prescription specified ingredients besides whisky, what the physician sought was a stimulant, and the other ingredients called for by his prescription "were not put in for the purpose of destroying the whisky for its stimulating effect."

The statement made by the defendant was, in substance, as follows: He was a regularly licensed apothecary, and conducted a drug store under the firm name of Bradley & Wester. Had never sold any whisky, but in the conduct of his business as a druggist he had filled some prescriptions containing whisky with other drugs, making a compound. "When these prescriptions would be presented to [him] to be filled, [he] asked the parties no questions about what was the matter with them," nor would he ask any such questions when prescriptions not containing whisky were presented. He thought the persons presenting prescriptions calling for whisky as one of the ingredients really wanted them for use as a medicine, and had no reason to suspect that these compounds made in filling such prescriptions were to be used by the parties as a beverage, or in any way except as a medicine. He assumed that the physician giving a prescription knew what his patient needed, and acted accordingly, filling the prescription, as he thought he had a right to do, in the conduct of his business as a druggist.

The jury returned a verdict of guilty, and the defendant made a motion for a new trial, which was overruled by the court. In his motion he urged the following grounds as cause for granting him a new trial, in addition to his general complaint that his conviction was contrary to law and the evidence: (1) "Because the court erred in charging the jury as follows: 'If you find from the evidence that a person asked the defendant to sell him a pint or a quart or any other quantity of corn or rye whisky, or some other intoxicating liquor, and the defendant told that person that he would not sell same to him unless he brought a prescription of a physician for it; and if you further find that said person soon thereafter came back to the defendant with a physician's prescription for said corn or rye whisky, or other intoxicating liquors, with other ingredients to be put in it; and if you further find that defendant took prescription and filled it by taking corn or rye whisky, or other intoxicating liquors, and putting said other ingredients called for by said prescription in the same, and then sold and delivered to said person, for valuable consideration, the said corn or rye whisky, or other intoxicating liquor, with said other ingredients in the same and if you further find from the evidence that the ingredients put into the corn or rye whisky, or other intoxicating liquors, did not destroy the same as an intoxicating drink--then I charge you that defendant is guilty of violating the local option law in this county, and you should find him guilty. But if said other ingredients did destroy the effects of said intoxicating liquors as an intoxicant, then he would not be guilty." The vice of this charge was (movant insists) that it amounted to a direction to the jury to find the defendant guilty; strongly expressed to the jury the opinion of the court as to the facts in the case; was too emphatic, and tended to impress upon the jury that the court thought the defendant guilty; because the jury were told to find the defendant guilty if they believed a certain statement of facts detailed by the court, which statement did not embrace all the facts necessary to establish the charge against him;...