McLain v. State

• Citation: 64 S.W. 865
• Parties: McLAIN v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 19 June 1901
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

64 S.W. 865

McLAIN v. STATE.¹

Court of Criminal Appeals of Texas.

June 19, 1901.

Appeal from Hill county court; L. C. Hill, Judge.

W. S. McLain was convicted of selling liquor in a local option precinct, and appeals. Affirmed.

Wear, Morrow & Smithdeal, for appellant. McKinnon & Sneed, D. Derden, B. Y. Cummings, C. F. Greenwood, Co. Atty., and D. E. Simmons, Acting Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was charged with selling liquor in a local option precinct. He defended on the ground that, as a physician, he merely gave a prescription to one James for whisky, which prescription was to be filled by the druggist. The facts show that James approached the owner of the drug store for the purpose of purchasing whisky, and was requested to apply to a physician for a prescription. James went immediately to appellant, and informed him of the fact that he wanted whisky. They went to the drug store, and appellant states that he went behind the counter, to the prescription case, wrote the prescription, called the clerk's attention to it, and the clerk requested him to hand the whisky to James, which he did, receiving therefor $1. Appellant also contends that he examined James, by asking him some questions as to his physical condition, and that James informed him that he had been riding through the inclement weather and had a cold, and appellant thereupon told him he needed whisky, and gave the prescription. James said he did not get any prescription; that he did not inform appellant he was sick, etc. So appellant's defense may be stated: (1) That he was a physician, not a seller, and gave a prescription, and, if responsible at all, would be for having given an illegal prescription; (2) if this is not well taken, then he did not sell the whisky, but was acting as the agent and friend of James in getting the whisky. The prescription is as follows: "Take this to Simmons' Palace Drug Store, where it will be carefully filled, and only the best and purest drugs used, opposite the post office, at Itasca, Texas, for R Whisky, one quart. I certify that I have examined Bud James, and find him actually sick and in need of the stimulant above prescribed as a medicine. W. S. McLain, M. D. No. 3,795. Date December 20th, 1899." Stamped over the face: "Canceled. December 20th, 1899. J. C. Simmons." On objection by the state, this prescription was excluded because not in conformity with law, having omitted the expression "personally examined," and the certificate upon honor, required by articles 403, 405, Pen. Code. In our opinion, the court was correct in excluding this testimony. Under the local option law, sales of intoxicants are prohibited, except (1) when used for medicinal purposes; and (2) for sacramental purposes. The constitutionality of this law was attacked because of these exceptions; the contention being made that, as the constitution had prohibited the sale, therefore the legislature could not make these exceptions. This court held otherwise in Bowman's Case, 38 Tex. Cr. R. 14, 40 S. W. 796, 41 S. W. 635. It will be unnecessary to review that case, or the reasons of the court for holding as it did. We are still of the opinion that decision is correct. If the legislature had the authority to make the exception as to sales for medicinal purposes, it would follow, as a matter of course, they had the further right to hedge that exception as was thought to be proper and reasonable. In doing this, that body has provided that for medicinal purposes intoxicants can only be sold upon a prescription certifying that a regular physician signing the prescription has personally examined the party to whom the prescription is given, and that he is actually sick; and he must certify these matters upon his honor. This is the character of prescription required by the legislature. It is the character of prescription provided as a part and parcel of the law when put into operation; and, the legislature having the right to prescribe the mode and manner of selling, it would follow that in order to avoid the punishment the terms of the exception must be followed. There is no kind of prescription authorizing the sale, except that provided by statute, and it is not a prescription until it has complied with the law. Where a sale occurs, an illegal prescription is no protection to the seller or the physician, because in that event the physician makes himself a party to the sale by giving an illegal prescription by means of which the law is evaded. As in misdemeanors all are principals, so, when a physician gives an illegal prescription under which a sale occurs, he is as much responsible for the sale as is the seller. Whenever a sale in a local option territory is brought about by means of an illegal prescription, the physician and seller are both liable. Each is required to know the law;...