State v. Cox

• Decision Date: 20 December 1883
• Citation: 23 W.Va. 797
• Parties: State op West Virginia Con.
• Court: West Virginia Supreme Court

23 W.Va. 797

STATE OF WEST VIRGINIA

v. COX.

Supreme Court of Appeals of West Virginia.

Submitted September 15, 1883

Decided December 20, 1883

1. By section 4 of chapter 107 of the Acts of the Legislature of 1877 if is clearly manifested, that the legislative intent was to prohibit a druggist, unless he had the license mentioned in the first section, from selling spirituous liquors, wine, &c, except only in case he sold alcohol in good faith for medicinal purposes, or alcohol or other spirituous liquors, or wine upon the written prescription of a practicing physician, which prescription must have all the requisites prescribed in said section, (p. 799.)

2. A person although a druggist may be convicted on an indictment found under the first section, unless he can show, that as such druggist he had complied with all the requirements as to the sale of spirituous liquors, &c, provided by the fourth section; but if convicted on such indictment, only the penalty prescribed for a sale without a State-license could be inflicted, and not the heavier penalty prescribed for the unlawful sale by a druggist as, such. (p. 800.;

The opinion of the Court contains a. statement of the facts of the case:

Attorney-General Watts for the State.

Ew'mg, Melvin &-Riley for defendant in error.

Johnson, President:

At the November term, 1879, of the circuit court of Tyler county, Daniel W. Cox was indicted for unlawfully retailing spirituous liquors, &c. On the 18th day of May, 1880, the defendant pleaded "not guilty," on which plea issue was joined. On the 27th day of August, 1881, the issue was tried before a jury, and a verdict of "not guilty" rendered. Upon the trial of the case the court at the instance of the defendant gave the jury the following instruction: "The jury is instructed, that the defendant is not indicted as a druggist, but simply for retailing without a State-license. Therefore if the.jury believe from the evidence, that the defendant made the sale in good faith as a druggist, they should find him not guilty, although he may not have sold upon the prescription of a physician. If however the jury believe from the evidence that the defendant did not sell the liquor in good faith as a druggist, and to be used for medicine, but that he sold the same to be drank as a. beverage, they should find him guilty, and fix his fine at not less than ten dollars, nor more than one hundred dollars." To this instruction the State objected, winch objection was overruled, and the instruction was given, and the State excepted. The bill of exceptions, which certifies all the evidence, shows that the instruction was relevant.

it appears from the evidence that one Moore bought of the defendant at his drug-store in Sistersville in said county, and paid him therefor, two wine glasses full of something of an intoxicating nature, which actually intoxicated said Moore, That Moore did not represent that he was sick, nor did he have the prescription of a physician. The defendant by his own evidence shows that he was a duly licensed druggist at the time of said sale; that lie sold to said Moore a preparation composed of tincture of gentian, tincture of quassia, and whisky about one third each in. quantity; "that he sold said mixture to said Moore in good faith as a druggist for medicine, having been led to believe said Moore wanted it for that purpose."

The Attorney-General and counsel for defendant in error, concede that this indictment is under and governed by chapter 107 of the Acts of 1877. The first section of said chapter provides that "no person shall, without a State-license therefor" * * * "sell, offer or expose for sale, spirituous liquors, wine, porter ale or beer, or any drink of a like nature.'* Section three provides the penalty for the violation of this statute, by declaring that such person shall "except where it...