Niswonger v. State

• Decision Date: 17 June 1913
• Docket Number: 22,305
• Citation: 102 N.E. 135,179 Ind. 653
• Parties: Niswonger v. State of Indiana
• Court: Indiana Supreme Court

102 N.E. 135

179 Ind. 653

Niswonger v. State of Indiana

No. 22,305

Supreme Court of Indiana

June 17, 1913

From Allen Circuit Court; E. O'Rourke, Judge.

Prosecution by the State of Indiana against Henry W. Niswonger. From a judgment of conviction, the defendant appeals.

Affirmed.

John H Aiken, for appellant.

Thomas M. Honan, Attorney-General, and Thomas H. Branaman, for the State.

Spencer C. J. Cox, J., Concurs in Conclusion.

OPINION

Spencer, C. J.

Appellant was tried by the judge of the Allen Circuit Court, without a jury, on the charge of having unlawfully sold cocaine, in violation of the act of 1911 pertaining to the sale of drugs (Acts 1911 p. 45). From a judgment of conviction, he prosecutes this appeal.

The act of the legislature on which this prosecution is based provides "That it shall be unlawful for any druggist or other person to retail, sell, or barter or give away any cocaine * * * except upon the written prescription of a duly registered physician, licensed veterinarian, or licensed dentist, * * * except, however, that such cocaine * * * may lawfully be sold at wholesale upon the written order of a licensed pharmacist, or licensed druggist, duly registered practicing physician, licensed veterinarian, or licensed dentist."

Appellant first insists that the court erred in overruling the motion to quash each count of the affidavit on which this action was based. This affidavit is in two counts but for the purposes of the question before us it is necessary only to set out the first count, which is as follows: "Count 1. Walter H Immel, being duly sworn, upon his oath says that on the 16th day of May, 1912, at the County of Allen, and the State of Indiana, Henry W. Niswonger, who was then and there a druggist, did then and there unlawfully sell to one John Burton at and for the price of one dollar, one-eighth of an ounce of cocaine, the said sale not being then and there made upon the written prescription of any duly registered physician, licensed veterinarian or licensed dentist, the said Henry W. Niswonger having then and there a license as a physician and a license as a pharmacist."

Without deciding whether appellant has properly presented any question as to the sufficiency of the affidavit, it is apparent that the offense defined in the statute applies to all persons and if a physician, although duly licensed, commits the act charged in this affidavit he is not excepted from the operation of the law. The statute in question prohibits the sale, barter or giving away of cocaine except under certain conditions and it was not intended to exempt licensed physicians from its terms. There is nothing in the act which will authorize a physician to operate a drug store and, as such druggist, to sell cocaine indiscriminately to any one applying therefor without having a written prescription as required by law. Such prescription is a prerequisite to any sale of either of the drugs mentioned in the statute and must be retained on file by the person making such sale. There was no error in overruling the motion to quash the affidavit.

It is next contended that the circuit court erred in overruling appellant's motion for a new trial. There was some evidence of the sale as alleged and that it was made without a prescription therefor. Whether such testimony carried conviction was a matter resting exclusively with the court which tried the case, and the sufficiency thereof can not...