Ryan v. State

• Decision Date: 01 July 1910
• Docket Number: No. 21,606.,21,606.
• Citation: 92 N.E. 340,174 Ind. 468
• Parties: RYAN v. STATE.
• Court: Indiana Supreme Court

174 Ind. 468

92 N.E. 340

RYAN

v.STATE.

No. 21,606.

Supreme Court of Indiana.

July 1, 1910.

Appeal from Circuit Court, Howard County; L. J. Kirkpatrick, Judge.

Larry Ryan was convicted of unlawfully selling whisky, and he appeals. Affirmed.B. F. Harness, B. C. Moon, Warren R. Voorhis, and S. G. Gifford, for appellant. Arthur G. Manning, James Bingham, A. G. Cavins, E. M. White, and W. H. Thompson, for the State.

MONKS, C. J.

Appellant, a druggist, was tried and convicted of the offense of selling one quart of whisky in violation of law. The only error assigned and not waived calls in question the action of the court in overruling appellant's motion for a new trial. The causes assigned for a new trial are (1) “the finding of the court is contrary to law; (2) the finding of the court is not sustained by sufficient evidence.” It is admitted that appellant is a druggist and sold one quart of whisky to the person named in the affidavit, but it is claimed that the provisions of section 8352, Burns' Ann. St. 1908, as to “applications,” were complied with, and therefore the sale was lawful. Appellant further insists that “a sale of intoxicating liquor made by a druggist in good faith and for medical purposes with reasonable caution is not a violation of law, but is justified by the decisions of this court, citing Nixon v. State, 76 Ind. 524;Ball v. State, 50 Ind. 595. The same contention was made in Barton v. State, 99 Ind. 89, where the appellant was found guilty of violating the provisions of section 2099, Rev. St. 1881, which made it unlawful for a druggist to barter, sell, or give away any intoxicating liquor on Sunday or on certain other days, or between certain hours mentioned in said section, “unless the person to whom the same is sold, bartered or given away shall have first procured a written prescription therefor from some regular practicing physician of the county where the same is sold, bartered or given away.”

In relation to said contention this court said in that case (pages 90, 91): “Appellant contends, however, that as the liquor was sold in good faith for medical purposes the case is not within the spirit of the law. In support of this contention, we are cited to the case of Nixon v. State, 76 Ind. 524, as being conclusive. That was a prosecution against a druggist for having sold intoxicating liquors without a license. The court followed previous cases, in excepting from the operation of the statute requiring a license, sales made in good faith for medical purposes. The spirit and intent of the statutes requiring a license to sell intoxicating liquors were to regulate and curtail the sale of such liquors, and lessen intoxication, and not to prohibit the sale for medicinal purposes. The case of Nixon v. State, supra, and the cases there cited, rest upon this interpretation. This reasoning cannot be applied to the case before us. The section (section 2099, Rev. St. 1881), is an absolute inhibition upon the sale of such liquors on the days named, to be drunk as a beverage. It seems to recognize the right of druggists to sell such liquors for medicinal purposes, but imposes a condition upon such sales on Sunday and the other days named; and that is, that the sale shall be made only to those who may have procured a written prescription therefor from a regular practicing physician of the county. The intention is to prohibit the sale on those days except in cases of sickness. And in order that this intention shall not be thwarted by feigned sickness, the prescription is required; and that there may be no imposition here the physician must be a regular practicing physician; and still further, to guard against imposition, the physician must be of the county where the liquor is to be sold, so that the druggists and the authorities may be more likely to have a personal acquaintance with him. This condition is the barrier erected about the sale by druggists on those days. To hold that the sale may be made on those days without the prescription, would be to override and break down that barrier. Such a holding would be in conflict with both the spirit and letter of the statute. It would carry us beyond the boundaries of interpretation and construction, into the domain of legislation. The argument that cases of emergency may arise where it may be inconvenient, if not impossible, to procure such a prescription in time to prevent serious consequences, may have force when addressed to legislators, but it cannot be controlling with courts, whose duty it is to declare the law as enacted by the law-making branch of the government.”

The case of Barton v. State, supra, was approved by this court in Tilford v. State, 109 Ind. 359, 10 N. E. 107, and in Edwards v. State, 121 Ind. 450, 452, 453, 23 N. E. 277, 278. In the case last cited this court said: “In a prosecution for the violation of this statute (section 2099, Rev. St. 1881), it is no defense that the liquor was sold in good faith for medical purposes. It was so decided by this court in Barton v. State, 99 Ind. 89;Tilford v. State, 109 Ind. 359 [10 N. E. 107].” In addition to what was said in the above cases it may be remarked that prima facie, every sale of intoxicating liquor on Sunday and the other days mentioned in the statute is unlawful, the burden of showing such sale to be lawful rests upon the person making the sale and the statute contemplates that such proof shall be in writing.” See, also, Rizer v. Tapper, 133 Iowa, 628, 630, 631, 110 N. W. 1038, and cases cited; Peak v. Bidinger, 133 Iowa, 127, 110 N. W. 292;Com. v. Perry, 148 Mass. 160, 19 N. E. 212.

It is no defense to a prosecution for a violation of said section 2099, Rev. St. 1881, that the liquor was sold in good faith, for medicinal purposes, and that it was actually used for such purpose if not sold upon a written prescription as required by said section. Caldwell v. State, 18 Ind. App. 48, 51, 46 N. E. 697, and cases cited. Said section 2099, supra, was re-enacted in 1905 as section 580 of the act concerning offenses (Acts 1905, p. 722), being section 2493, Burns' Ann. St. 1908. It is evident that the reasoning of the court in Nixon v. State, supra, and Ball v. State, supra, cannot be applied to the case now before us, but that the rule declared in Barton v. State, supra, Tilford v. State, supra, and Edwards v. State, supra, applies.

The part of section 8352, Burns' Ann. St. 1908, upon which appellant relies, reads as follows: “It shall be lawful for any druggist or pharmacist to sell vinous or spirituous liquors in quantities not less than a quart at a time for medicinal, industrial and scientific purposes, and for no other purposes, and then only upon the written (not printed or typewritten) prescription of a reputable physician in active practice, or upon the written and signed application of any other person who is personally known to such druggist or pharmacist, and who is by him known not to be a person in the habit of using intoxicating liquors as a beverage, such person stating therein that such liquor is desired and will be used for medicinal, scientific, or educational purposes only, and upon making such sale such druggist shall indorse in writing on such application a statement that in his opinion such liquor is desired for the purposes last above stated, and for no other purposes whatever; or upon the written and signed application of the superintendent of any hospital or educational institution where such liquor is used solely for medicinal or scientific purposes; and in no case shall any liquor sold hereunder be permitted by such druggist or pharmacist to be drunk on the premises where sold. Such prescription or application shall be plainly written, dated and signed in his or her full and correct name, by the maker thereof, and the date of the sale shall be plainly written thereon by the person making such sale, and such prescription or application shall be filed and carefully preserved for at least one year from the date of such sale, by the person making such sale, and only one sale shall be made under such prescription or application.'

It is provided in section 240, Burns' Ann. St. 1908, that “the construction of all statutes of this state shall be by the following rules, unless such construction be plainly repugnant to the intent of the Legislature or of the context of the same statute:” “Ninth. The words ‘written’ and ‘in writing’ shall include printing, lithographing, or other mode of representing words and letters.” Appellant contends that said section 240 governs the construction of the words “written” and “in writing” when they appear in section 8352, supra, and that when so construed the prescription and the application mentioned in said section 8352, supra, may be “printed, typewritten, lithographed or prepared in any other mode of representing words and letters.” This contention is not correct for the reason that “such construction is plainly...