Hawks v. State
| Decision Date | 07 December 1911 |
| Docket Number | 21,938 |
| Citation | 96 N.E. 593,176 Ind. 602 |
| Parties | Hawks v. The State of Indiana |
| Court | Indiana Supreme Court |
From Elkhart Circuit Court; James S. Drake, Judge.
Prosecution by The State of Indiana against Lewis Hawks. From a judgment of conviction, defendant appeals.
Affirmed.
Lou W Vail, for appellant.
Thomas M. Honan, Attorney-General, Edwin Corr, Thomas H. Branaman and James E. McCullough, for the State.
Appellant a druggist and licensed pharmacist, was tried by the court below, without the intervention of a jury, for selling a quart of whisky without a physician's prescription therefor, or an application written and signed by the purchaser, in violation of § 2 of the act of 1907 (Acts 1907 p. 689, § 8352 Burns 1908). From a conviction in the trial court he appeals, and assigns error on the action of that court in overruling his motion to quash the affidavit on which he was tried and in overruling his motion for a new trial.
To the extent that the motion to quash and the ruling thereon are involved, the record in this case discloses the same defect as that in the case of Scott v. State (1911), ante, 382, and for the reasons there given no questions as to the correctness of the trial court's ruling on the motion to quash is presented.
Counsel for appellant, in an interesting brief, earnestly contends that the finding of the court is contrary to law and not sustained by sufficient evidence.
The testimony of the buyer, together with an application to purchase the whisky, and defendant's indorsement thereon, constitute all the evidence given in the cause. This sole witness, Orby A. Peffly, a young man twenty years of age and a workman in a factory in the city of Goshen, testified that he went to appellant's drug store and asked for a pint of whisky, but that appellant said he would not sell him that amount; that he then asked for a quart, and appellant said "All right," and wrote out the application, which the witness signed, gave appellant $ 1, and got the whisky, which he took with him to the factory; that witness did not have a prescription from any physician, and appellant asked for none; that witness had been in the store before and made purchases, but could not say that he ever before bought anything from appellant himself; that he did not tell appellant that he wanted the whisky for medicinal purposes; that he did not read what appellant wrote, and appellant did not read it to him, but he knew it was an application for the purchase of whisky for medicinal purposes; that he was not in the habit of becoming intoxicated.
The application and appellant's indorsement thereon are as follows:
The section on which this prosecution is based provides, as one of the conditions on which a druggist or pharmacist may sell intoxicating liquors to one making the personal application therein...
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