State of Missouri v. R. R. Hesse
Decision Date | 05 July 1916 |
Citation | 187 S.W. 571,195 Mo.App. 616 |
Parties | STATE OF MISSOURI, Respondent, v. R. R. HESSE, Appellant |
Court | Missouri Court of Appeals |
Submitted on Briefs June 8, 1916.
Appeal from Scotland Circuit Court.--Hon. N. M. Pettingill, Judge.
AFFIRMED.
Judgment affirmed.
Lewis Myers for appellant.
(1) The information was fatally defective and stated no offense. Sec 5786, R. S. 1909; State v. Rinkard, 150 Mo.App. 570; State v. Crenshaw, 41 Mo.App. 24; State v Haden, 15 Mo. 447; State v. Runyan, 26 Mo. 167; Kelley's Criminal Law (3 Ed.), sec. 193. (2) The court should have set aside the verdict of the jury, and granted defendant a new trial on the grounds of prejudice and passion. State v. Castor, 93 Mo. 242; State v Primm, 98 Mo. 368; State v. Jaeger, 66 Mo. 173; sec. 2688, R. S. 1899. (3) Because the verdict of the jury was against the law and the evidence. State v. Huff, 161 Mo. 487; State v. Prendill, 165 Mo. 329. (4) This court ought to set aside the judgment because the evidence was overwhelmingly in favor of defendant. State v. Jaeger, 66 Mo. 179; State v. Packwood, 26 Mo. 340; State v. Burgdorf, 53 Mo. 65; State v. Brosius, 39 Mo. 634; State v. McNamara, 100 Mo. 117.
H. V. Smoot for respondent.
--The prosecuting attorney of Scotland county, on March 5, 1913, and during the vacation of the court, exhibited an information against one R. R. Hesse for violation of section 5786, Revised Statutes 1909, as that statute stood prior to the amendment of 1915, charging that Hesse, on or about January 1, 1913, at and in the county of Scotland, State of Missouri, "did wilfully and unlawfully retail, sell and give away to one Silas Forrester two grains of cocaine, hydro chlorate of cocaine and salt of cocaine, commonly called cocaine, without then and there having a written prescription from a legally authorized physician or dentist, said cocaine being not then and there sold at wholesale by the said R. R. Hesse as a wholesale merchant, manufacturer or wholesale dealer, against the peace and dignity of the State."
The cause was returnable to the May term, 1913, of the court but was passed to the November term and the defendant was arraigned and pleaded not guilty. A jury being impanelled and duly sworn, the evidence was heard and the jury returned a verdict of guilty, imposing a fine of $ 35. From this, interposing a motion for new trial as well as one in arrest, defendant has duly appealed to our court.
There are three assignments of error.
The first is to the action of the court in not giving defendant's instruction to the jury to find defendant not guilty. That instruction was properly refused. It appears by the evidence that defendant was a licensed and practicing physician, keeping his office in his residence at Memphis, Scotland county, this State, and keeping the drug there in quantities and supplying Forrester out of his own stock, delivering it to him at his house or on the street, or at other places.
Forrester, a young man of about twenty, testified that he had become addicted to the use of cocaine--had become what is commonly called a "dope fiend." He testified that on several occasions he had bought the drug from defendant in quantities of two or more grains at a time in the form of powder or capsules, it is not clear which, and had pulverized it and snuffed it up; that he had been cured of his disease some time before, was not then suffering from it and did not buy or take the drug for the cure of any disease but to gratify his passion for the drug; was not now using the drug.
The defendant testified very positively that he had only sold or given the drug to Forrester in good faith in the treatment of a disease with which he claimed Forrester was afflicted. Two or more physicians testified that cocaine was a known remedy for the disease for which defendant claimed he had prescribed and furnished it to Forrester.
While it is true that section 5786 makes it unlawful for a druggist or other person to retail or sell or give away any cocaine etc., except upon the written prescription of a licensed physician or licensed dentist, physicians or dentists prescribing, using and selling and delivering cocaine in the course of their practice and treatment of a patient, are not, in terms, excepted from the provision of the law. It cannot be questioned, however, that this section was not intended to cover any case of that kind. It was in the light of this interpretation of the law that the learned trial court very properly admitted testimony offered on the part of defendant, tending to show that the cocaine which he admitted he had given or sold Forrester, was prescribed by him as a physician in the course of his treatment of Forrester and that having the drug on hand he, prescribing it and delivering it, charged for it, sold it. As touching this defense the court told the jury that if they found from the evidence that the defendant as a legally registered practitioner of medicine was treating Forrester and that the cocaine he gave Forrester was in good faith prescribed for him by defendant as a medicine, then it would find defendant not guilty. It further instructed the jury that it being admitted that defendant is legally registered and authorized to practice medicine, if the jury believed from the evidence that Forrester applied to defendant for treatment...
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