State v. Elam

Decision Date22 March 1886
Citation21 Mo.App. 290
PartiesSTATE OF MISSOURI, Respondent, v. WILLIAM M. ELAM, Appellant.
CourtMissouri 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.

PHILIPS, P. J.

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): “Commentators and judges have sometimes been led into error by supposing that the words ‘enacting clause,’ as frequently employed, mean the section of the statute defining the offence, as contradistinguished from a subsequent section in the same statute, which is a misapprehension of the term, as the only real question in the case is whether the exception is so incorporated with the substance of the clause defining the offence, as to constitute a material part of the description of the acts, omission, or other ingredients which constitute the offence. Such an offence must be accurately and clearly described, and if the exception is so incorporated with the clause describing the offence that it in fact becomes a part of the description, then it cannot be omitted in the pleading; but, if it is not so incorporated with the clause defining the offence as to become a material part of the definition of the offence, then it is matter of defence, and must be shown by the other party, though it be in the same section, or even in the succeeding sentence.”

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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