Parker v. Com.

• Decision Date: 29 October 1889
• Citation: 12 S.W. 276
• Parties: PARKER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

12 S.W. 276

PARKER v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 29, 1889

Appeal from circuit court, Rowan county.

"Not to be officially reported."

Clarke & Saulsberry and Young, Mitchell & Young, for appellant.

P. W Hardin, Atty. Gen., for the Commonwealth.

PRYOR J.

The power of the legislature to regulate and control the sale of spirituous liquors is unquestioned; and in the exercise of this power a law was passed, local in its character prohibiting the sale and use of vinous and malt liquors in the county of Rowan. It is argued that the act is unconstitutional, and for that reason the case was transferred to this court from the superior court. The physician has the right to prescribe liquor as a medicine and to have it administered to his patient, under the act in question. The intent and purpose of the enactment was to prevent the sale and use of whisky as a beverage. The facts of the record show that the prescription was made in good faith by a regular practicing physician, and administered to his patient, a married woman, whose condition at the time required it. The physician went to the drug-store with her husband, there wrote the prescription, and it was filled for the husband, who paid the money for it, and administered it to his wife. The prescription was made up of several ingredients, and all in the same bottle. It appears that the whisky was gotten in good faith, for the purposes mentioned and with no intention of violating the local option law. There is no proof to the contrary. The illustration by Blackstone as to the construction of penal statutes should apply here. A heavy penalty being imposed on any one for shedding blood in the street would not be held to apply to the physician who bled the man that had fallen with a fit in the public way; and so of this local law. While neither the physician, druggist, nor the husband had the right to purchase it to be used as a beverage, or to administer it to satisfy the appetite for drink, the physician, with the right to prescribe and administer it as a medicine, having done so by applying to the druggist to fill the prescription, all of which was done and administered in good faith, was not a violation of the spirit or meaning of the act. And the court instead of instructing the jury to find for the commonwealth, should have instructed them, if they believed, from the testimony, that it was purchased and used in the manner...