Hutson v. Com.

• Decision Date: 11 December 1907
• Parties: HUTSON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

105 S.W. 955

HUTSON v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 11, 1907

Appeal from Circuit Court, Carlisle County.

"Not to be officially reported."

James Hutson was convicted of violating the local option law, and appeals. Affirmed.

Shellbourne & Smith, for appellant.

N. B Hays, Atty. Gen., and C. H. Morris, for the Commonwealth.

HOBSON J.

James Hutson was indicted in the Carlisle circuit court for violating the local option law in force in Bardwell. On the trial of the case he was found guilty, and fined $60. From the judgment rendered against him for the fine he appeals. Lucien Carter, to whom it was charged he sold the liquor testified that he bought at the drug store of Hutson a half pint of whisky or brandy. He testified that his boy was sick almost had pneumonia; that Dr. Crouch, who was attending the child, gave him the prescription for a half pint for the child, telling him that he thought it would be good for him that he carried it over to the drug store and got it filled, and gave it to the child as directed. The clerk at the drug store who filled the prescription testified that he had filled it in the usual course of business, and put the prescription on file. Dr. Crouch testified that he gave the prescription, that the child needed it, and that the prescription was a proper one for the child in its condition. The bill of exceptions shows that each of these witnesses had the prescription before him, but it is not in the transcript. The proof also shows that Dr. Crouch is a physician of good standing and regularly qualified to practice medicine.

On this evidence the court instructed the jury, in substance, that if they believed from the evidence beyond a reasonable doubt that the defendant had sold whisky or brandy to Lucien Carter, they should find him guilty, ignoring altogether the proof that the sale was made upon the prescription of a physician. The present local option law provides that, unless it is written in the petition notice and order for the election that the provisions of the law shall apply to druggists, "then licensed druggists may sell for medical purposes, on a prescription written and signed by a regular practicing physician, legally authorized to practice medicine, which prescription shall state the date thereof, the quantity thereof, the quantity prescribed and the name of the person to whom it is prescribed." Ky. St. 1903, § 2558. As the prescription given by the physician is not in the transcript, we must assume that it was ignored by the circuit judge on the ground that it did not comply with the statute. In the brief for appellant we are furnished with what is stated to be the prescription as follows: "Two ounces spirits of Fermenti; one ounce of prune juice; one ounce of Tincture of...