State v. Berkeley

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

23 S.E. 608

41 W.Va. 455

STATE v. BERKELEY.

Supreme Court of Appeals of West Virginia.

December 4, 1895

Submitted September 5, 1895

Syllabus by the Court.

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.

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 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 insufficient prescription, but not the physician, as he has not stated as a fact the need of the liquor for medicinal purposes, but only his belief. Code, c. 32, §§ 6, 7, provide that a druggist shall not sell spirituous liquors except on a written prescription from a physician that they are absolutely necessary as a medicine for the person named in the prescription, and not as a beverage, and punish the physician for giving the prescription and making the statement falsely. The legislature shows in this statute a fixed and plain purpose to prohibit druggists from selling liquor as a beverage, to prevent drug stores from becoming barrooms, as it limits sales to cases where the liquor is absolutely necessary as medicine, and to accomplish this purpose requires in every sale a certain prescription; and, as a further means of carrying out its public policy in order to prevent imposition upon the druggist, and, more important still, to prevent violation of its policy and law, it punishes the physician for fraudulent practice in false prescriptions. The act of the physician declared by the statute an offense is one of fraud, deceit, or misrepresentation, and is to be tested by principles testing the presence of fraud, deceit, or misrepresentation in contracts, false pretenses, perjury, and the like. Fraud is shown either by establishing a suggestion, falsi (that is, a suggestion or statement of what is false) or a suppressio veri (that is, the suppression of what is true). Crislip v. Cain, 19 W.Va. 439. Where a party intentionally or by design misrepresents a material fact, or produces a false impression, in order to mislead another, or entrap or cheat him, or obtain undue advantage of him, there is positive fraud. The misrepresentation may be as well by deeds or acts as by words; by artifices to mislead as well as by positive assertions. If a party states a fact for fraudulent purpose, which is untrue, without knowing it to be true, and does not believe it to be true, this is legal and moral fraud. Dickenson v. Railroad Co., 7 W. Va. 390, points 17, 18. Whether the party misrepresenting a material fact knew it to be false, or made the assertion without knowing whether it was true or false, is immaterial, for the affirmation of what one does not know or believe to be true is equally in morals and law as unjustifiable as the affirmation of what is known to be positively false. 1 Story, Eq. Jur. 193. A false representation is one made with knowledge of its falsity,--made scienter, in law phrase. "A false representation may be made scienter, in contemplation of law, in any of the following ways: (1) With actual knowledge of its falsity; (2) without knowledge either of its truth or falsity; or (3) under circumstances in which the person making it ought to have known, if he did not know, of its falsity." 1 Bigelow, Frauds, 509. "It is perjury where one swears willfully and corruptly to a matter which he, according to his own lights, has no probable cause for believing, since a man is guilty of perjury if he knowingly and willfully swears to a particular fact without knowing at the time that the assertion is true, supposing his purpose is corrupt. Hence it is a good assignment of perjury that the defendant swore that he 'thought' or 'believed' a certain fact, whereas in truth and fact he thought and believed the contrary, and had no probable grounds for what he swore. It has just been seen that falsity consists in knowingly affirming a condition without probable cause. Here we must again accept a position so often vindicated in these pages that probable cause must be estimated, not from the jury's standpoint, nor from the judge's, but from the defendant's. On the one...