State v. Elam
Decision Date | 22 March 1886 |
Citation | 21 Mo.App. 290 |
Parties | STATE OF MISSOURI, Respondent, v. WILLIAM M. ELAM, Appellant. |
Court | Missouri Court of Appeals |
APPEAL from Gentry Circuit Court, HGN. C. H. S. GOODMAN, Judge.
Affirmed.
The case is stated in the opinion.
PATTON, CRANOR & AUSTIN, and THOMAS, MCCULLOUGH & PEERY, for the appellants.
I. The motion to quash the indictment should have been sustained. The rules of criminal pleading require that every change should be so specific, certain and definite, as to inform defendant of the precise nature of the particular act for which he is called upon to answer. Wharton Crim. Plead. & Pract., sect. 220; State v. Fisher, 58 Mo. 256; State v. Maupin, 57 Mo. 205; Thompson v. State, 16 Tex. App. 159; Bishop Stat. Crimes (2. Ed.) sect. 1037 and cases.
II. The objection to the introduction of the certificate of the secretary of state should have been sustained. The best evidence of the fact that he was a registered pharmacist, was a certified copy of the records of the board of pharmacy showing that he had been licensed, or registered, as a pharmacist.
III. The motion for a new trial should have been sustained because the verdict was contrary to the weight of evidence.
IV. Sections two, three and four, of the act of 1883, are unconstitutional and void, (1) as being in conflict with section twenty-eight, of article four, of the constitution; (2) also, with section fourteen, of article four, of the constitution, because, first, the subject matter of the three sections is not indicated in the title of the act; and, second, the act is not set forth in full as required by the constitution.
No brief on file for the respondent.
The defendant was convicted under an indictment founded on section two of the act concerning druggists, etc. Laws of Missouri, 1883, page 88. The essential part of this section is as follows: “No druggist or pharmacist shall, directly or indirectly, sell, give away, or otherwise dispose of, intoxicating liquors of any kind, in any quantity less than one gallon, for any purpose, 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 as a necessary remedy; provided, that any druggist, or pharmacist, may sell or give away, in good faith, any wine for sacramental purposes. * * *”
I. The indictment is objected to by defendant because it fails to negative the exception contained in the proviso. Some conflict among the authorities has arisen in respect of this matter of pleading, growing out of the true purport of the term “the enacting clause.” The rule is generally thus expressed: “If there is an exception in the enacting clause, the party pleading must show that his adversary is not within the exception; but if there be an exception in a subsequent clause or subsequent statute, that is matter of defence, and is to be shown by the other party.” 8 Amer. Jur. 233-234. But, as stated by Clifford, Judge, in United States v. Cook (17 Wall. 176):
This has been repeatedly recognized by our supreme court as the correct test in such pleading. It was so applied in State v. O'Brien (74 Mo. 549), under a statute in no material respect differing from the one under consideration, and containing a like proviso, similarly situated in the enacting clause. It was held that the indictment was not...
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