State v. Davis
| Decision Date | 15 November 1910 |
| Citation | 69 S.E. 644,68 W.Va. 184 |
| Parties | STATE v. DAVIS. |
| Court | West Virginia Supreme Court |
(Syllabus by the Court.)
An indictment against a druggist for the sale of intoxicating liquor is not bad for not naming the person to whom the sale was made.
[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. §§ 237-239; Dec. Dig. §
An indictment against a druggist for the sale of intoxicating liquor is not bad for not specifying the day of sale, if it allege it to be within one year before the finding of the indictment.
[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. §§ 228, 261; Dec. Dig. § 3. Intoxicating Liquors (§ 152*)—Sale by Druggist—Necessity of Prescription.
A sale of intoxicating liquor by a druggist to a physician, without the prescription required by law, is unlawful.
[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. § 167; Dec. Dig. § 152.*]
Error from Circuit Court, Barbour County.
W. O. Davis was convicted of an unlawful sale of liquor as a druggist, and brings error. Affirmed.
Warren B. Kittle, for plaintiff in error.
Wm. G. Conley, Atty. Gen., for the State.
BRANNON, J. W. O. Davis was convicted in the circuit court of Barbour county of unlawful sale of intoxicating liquor as a druggist, and fined $100. The sale was upon an order from a physician reading as follows:
We need not consider at length the point that the indictment is violative of Const, art. 3, § 14 (Code 1906, p. li), in not naming a day of sale and the person to whom sale was made. It has been held that the indictment need not so specify. State v. Ferrell, 30 W. Va. 683, 5 S. E. 155; State v. Crisnell, 36 W. Va. 659, 15 S. E. 412.
The prosecution presented several orders to Davis from a physician and proved sales under them. The prosecution elected to rely on only one, and then the defendant asked the court to exclude other orders; but the court refused. The court said that such other sales might be considered for the purpose of showing the bona fides or otherwise of the transaction. We will not consider whether this refusal to exclude was error. It plainly told the jury that conviction could not be had on those other sales, and that those sales could only be used on the question of good faith in the sale. The or der from the physician is no prescription to warrant a sale. A mere order from a physician to send him liquor is not a prescription though he intend to mix it in medicine. Who was the patient? This is no justification of a sale. I refer here to State v. Davis (decided this day) 69 S. E. 639. Code 1906, c. 32, § 6, demands a prescription stating the name of the patient, and that the liquor is absolutely necessary as a medicine for such person, and is not to be used as a beverage. The order in this case is no such prescription as the law definitely prescribes. The law carefully prescribes it, and we cannot accept even a prescription so widely departing from the requirement of the statute. You cannot call the order a prescription. State v. Tetrick, 34 W. Va. 137, 11 S. E. 1002; State v. Berkeley, 41 W. Va. 455, 23 S. E. 608. It cannot operate as a mere order for liquor for the use of a physician. I see no clause in section 6 allowing a druggist to sell to a physician. He can prescribe for a patient, but cannot himself buy simply because he...
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State ex. rel. Roger L. Bowers v. McBride
...a druggist for the sale of intoxicating liquor is not bad for not naming the person to whom the sale was made." Syl., State v. Davis, 68 W.Va. 184, 69 S.E. 644 (1910). See State v. Ferrell, 30 W.Va. 683, 5 S.E. 155 (1888). In the case sub judice, there was no surprise to the Petitioner sinc......
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State ex rel. Toney v. Mills
...is not barred * * *'. See State v. Varner, 131 W.Va. 459, 48 S.E.2d 171; State v. Crummitt, 129 W.Va. 366, 40 S.E.2d 852; State v. Davis, 68 W.Va. 184, 69 S.E. 644; State v. Thompson, 26 W.Va. 149. In referring to the rule applied in criminal cases, as an answer to the question raised, we a......
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State v. Hudson
...for conviction." State v. Baker, 115 S.E. 860, decided this term. See, also, State v. Bailey, 75 W.Va. 250, 83 S.E. 910; State v. Davis, 68 W.Va. 184, 69 S.E. 644; v. Calhoun, 67 W.Va. 666, 69 S.E. 1098; State v. Chisnell, 36 W.Va. 659, 15 S.E. 412. It follows, therefore, that defendant's m......
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State v. J. F. Hudson.
...which it will stand for conviction." State v. Baker, 93 W. Va. 55. See also: State v. Bailey, 75 W. Va. 250, 83 S. E. 910; State v. Davis, 68 W. Va 184, 69 S. E. 644; State v. Calhoun, 67 W. Va. 666, 69 S. E. 1098; State v. Chisnell, 36 W. Va. 659, 15 S. E. 412. It follows, therefore, that ......