State v. Berkeley

• Citation: 41 W.Va. 455,23 S.E. 608
• Court: Supreme Court of West Virginia
• Decision Date: 04 December 1895
• Parties: STATE v. BERKELEY.

23 S.E. 608
41 W.Va. 455

STATE
v.
BERKELEY.

Supreme Court of Appeals of West Virginia.

Dec. 4, 1895.

Prescription fob Intoxicating Liquok—Necessity and Requirements—Indictment of Physician.

1. Under Code, c 32, § 7, if a physician gives a prescription to enable one to obtain liquor from a druggist as medicine, either stating that it is, or that he believes it is, absolutely necessary as a medicine, and not as a beverage, when he either knows, or believes, or has reason to believe it is not so necessary, or when he does not know it to be so necessary, he violates said statute, and is guilty of the offense it creates. The physician must act in entire good faith. It is his duty to examine and ascertain whether the liquor is absolutely necessary as a medicine.

2. An indictment describes a prescription as stating that the liquor is absolutely necessary as a medicine, whereas the prescription states that the physician believes it to be so necessary. There is no variance between indictment and evidence because of the word "believe" in the prescription.

3. Such a prescription names A. as the person needing such liquor, when he does not need it, and the physician knows he does not need it; but A. is getting it for the use of another. The statute is violated, though that other person may so need the liquor as a medicine. The prescription must name the person for whom the liquor is prescribed.

(Syllabus by the Court)

Error to circuit court, Hampshire county.

B. F. Berkeley was acquitted of an indictment for giving false prescriptions as a physician to enable the purchase of spirituous liquors, and the state brings error. Reversed.

T. S. Riley, Atty. Gen., and W. B. Cornwell, for the State.

Monroe & Woods, for defendant in error.

BRANNON, J. Berkeley was tried and acquitted in the circuit court of Hampshire county upon an indictment accusing him of giving false prescriptions as a physician to a druggist to enable a person to purchase spirituous liquors, and the state appeals. On the trial the state offered to give the prescriptions in evidence, but they were rejected by the court, and the question is whether their exclusion was proper. The state proved that Berkeley, as a physician, had given Whitacre, a young man, "on the representation of Whitacre that he had a delicate aunt in town, and they would need some whisky going home through the snow storm, " three prescriptions for one pint. of whisky each, between the hours of 1 p. m. and 6 p. m., of February 2, 1895, to a certain drug store, charging 25 cents for each one, on which the druggist sold Whitacre the amount of whisky called for by the prescriptions; and then the state offered the prescriptions in evidence. To sustain its case, the state had to prove the giving of the prescriptions, and that they contained false statements, and it was entitled to use the prescriptions as the primary and highest evidence upon those facts. Here I might stop. But it might be thought that I failed to touch the point on which the circuit court acted, or may have acted; that is, the character of the prescriptions. I think the prescriptions, whatever their character, ought to have gone before the jury as items of evidence in the case; but it may be said that the presence of the word "believing, " in the prescriptions, called for their exclusion, as in them the physician, after prescribing for Whitacre one pint of whisky, said, "I certify that the above is prescribed as a medicine for the person above named, believing it to be absolutely necessary as such." It may have been thought on the trial that, to charge a physician with giving

[23 S.E. 609]

a false prescription, he must, in his prescription, say positively that the liquor is absolutely necessary as a medicine, and not as a beverage; not merely that he believes such to be the case; that the druggist may be punished for selling under such an...