State v. Davis

• Decision Date: 02 March 1892
• Citation: 18 S.W. 894,108 Mo. 666
• Parties: The State, Appellant, v. Davis
• Court: Missouri Supreme Court

18 S.W. 894

108 Mo. 666

The State, Appellant, v. Davis

Supreme Court of Missouri, Second Division

March 2, 1892

Appeal from Daviess Circuit Court. -- Hon. C. H. S. Goodman, Judge.

Reversed and remanded.

John M Wood, Attorney General, and G. A. Chapman, for the State.

(1) The indictment charges the offense in the language of the statute, and is sufficient. R. S. 1889, sec. 4622; 95 Mo 389. (2) Section 4622 of Revised Statutes, 1889, is constitutional. In the same section the druggist and pharmacist is required to preserve all prescriptions compounded by him; in other words, the druggist and pharmacist is licensed or commissioned by the state, and after being so licensed or commissioned, the same power that licenses or commissions him also requires him to preserve all prescriptions compounded by him; that is, he must keep a record of his official acts, so to speak. These prescriptions or public records do not belong to the druggists; they are the property of the state, and when the state calls for these prescriptions or public records they should be produced. (3) We fail to see wherein the production of the prescriptions would furnish evidence against the defendant. If this be the case then any officer or agent might refuse to make a report upon the same ground. The statute is not violative of any provision of the fundamental law. Ex parte Buskett, 106 Mo. 602.

W. D. Hamilton for respondent.

(1) Defendant cannot be compelled to be a witness or furnish evidence to convict himself. Section 4622 under which defendant is indicted is, therefore, unconstitutional and void for the reason that it compels defendant to produce evidence to convict himself. Const. Mo., art. 2, sec. 23; Amendment to Const. U.S. art. 5. (2) A witness is not bound to answer when his answer may disclose a fact which forms a necessary and essential link in the chain of testimony sufficient to convict him of crime, and of this he is to be the judge. State v. Ward, 2 Mo. 120; State v. Marshall, 36 Mo. 400; State v. Talbott, 73 Mo. 347; 1 Greenl. Ev., sec. 451; 1 Burr's Trial, p. 244; Wharton on Criminal Law, pp. 372, 373, 374, 375. Said indictment is defective for the further reason that it does not allege the object and purpose for which the prescriptions were to be produced before said grand jury.

OPINION

Macfarlane, J.

This case comes to this court on the appeal of the state from a judgment of the circuit court of Daviess county, sustaining a demurrer to the indictment.

Defendant was indicted as a druggist and pharmacist, under section 4622, for refusing to produce, before the grand jury of the county, the prescriptions filled by him during the previous year, when lawfully summoned to do so. A demurrer to this indictment was sustained on the ground that said section, in requiring defendant to produce the prescriptions before the grand jury, was in conflict with section 23 of the bill of rights under the constitution of this state, and the fifth amendment to the constitution of the United States, in that it required him to furnish evidence against himself.

Section 4621, Revised Statutes, 1889, prohibits druggists, or proprietors of drug stores or pharmacists from selling intoxicating liquors, in less quantities than four gallons, except on a written prescription, dated and signed, first had and obtained from some regularly registered and practicing physician, and then only when such physician shall state in such prescription the name of the person for whom the same is prescribed, and that such intoxicating liquor is prescribed as a necessary remedy.

Section 4622 is as follows: "Every druggist, proprietor of a drug store or pharmacist shall carefully preserve all prescriptions compounded by him or those in his employ, numbering, dating and filing them in the order in which they are compounded, and shall produce the same in court or before any grand jury, whenever thereto lawfully required, and, on failing, neglecting or refusing so to do, shall be deemed guilty of a misdemeanor, and on conviction shall be punished by a fine not less than $ 50 nor more than $ 100."

The terms of section 23, of article 2, of our state constitution "that no person shall be compelled to testify against himself in a criminal cause," has uniformly received from the courts a construction which would give to the citizen protection as broad as that afforded under the common-law principle from which they were derived. Lord Camden, as early as 1762, in his celebrated opinion in case of Entick v. Carrington, 19 Howell's State Trials 1029, in speaking of the right of search and seizure of private books and papers, uses this language: "Papers are the owner's goods and chattels; they are his dearest property; and are so far from enduring a seizure that they will hardly bear an inspection; and, though the eye cannot by the laws of England be guilty of a trespass, yet, where private papers are removed and carried away, the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damages in that respect. Where is the written law that gives any magistrate such a power? I can safely answer, there is none; and, therefore, it is too much for us, without such authority, to pronounce a practice legal which would be subversive...