State v. Farmer

• Decision Date: 16 December 1889
• Citation: 10 S.E. 563,104 N.C. 887
• Parties: STATE v. FARMER.
• Court: North Carolina Supreme Court

10 S.E. 563

104 N.C. 887

STATE v. FARMER.

Supreme Court of North Carolina

December 16, 1889

This was an indictment against a physician, drawn under section 4 c. 215, Laws 1887, for giving a false and fraudulent prescription for liquors, tried at the fall term, 1889, of the superior court of Transylvania county, before CLARK, J.

There were three counts in the indictment. The material portions of the first count were as follows: "That D. H. Farmer, on the 1st day of April, 1889, with force and arms, in Transylvania county, unlawfully and willfully did give to one G. H. a false and fraudulent prescription for spirituous liquors, he, the said D. H. Farmer, being then and there a practicing physician, contrary to the form of the statute," etc. The second and third counts were in the same form, but charged a sale to a different person in each count; making charges of three separate sales in the three counts. The defendant moved to quash the indictment on four grounds: (1) That it was bad for duplicity, in that it charged a false prescription to three different persons; (2) that it did not charge that the defendant was a reputable physician; (3) that it did not charge the name of the druggist to whom the prescription was given; (4) that it did not set out wherein the prescription was false and fraudulent, but merely charged a conclusion of law. The court, upon the first ground, held the bill bad for duplicity, under State v. Cooper, 101 N.C. 684, 8 S.E. Rep. 134, but told the solicitor he could make his selection, and enter a nol. pros. before the defendant was called upon to plead, and send other bills as to the counts nol. pros'd. The solicitor, being of the opinion that he could not be called upon to make his election before the state closed its evidence, declined to enter a nol. pros. as to any of the counts at this stage. The court overruled the second ground of the motion to quash. Upon the third and fourth grounds set out by the defendant, the court, being of the opinion, under State v. Watkins, 101 N.C. 702, 8 S.E. Rep. 346, that the charge in the bill was not sufficiently full and specific, told the solicitor he could send a new bill, remedying those defects, and in the mean time the court would hold the defendant. The solicitor declined to send a new bill. The court thereupon quashed the bill of indictment, and discharged the defendant; from which judgment the solicitor, on behalf of the state, appealed.

The Attorney General, for the State.

AVERY J., (after stating the facts as above.)

The judge below had the power, in any view of the case, to compel an election or quash the indictment, treating the charges of sales to different persons as distinct counts. State v Cooper, 101 N.C. 684, 8 S. Rep. 134; State v Parish, ante, 457, (decided at this term.) There was no error, therefore, in the enforcement by the court of election before the defendant should be compelled to plead.

We concur, too, with his honor, in the view that the law does not impose upon the state the burden of charging in the indictment, and proving on the trial, that the defendant was "a reputable physician," as well as that he gave a false and fraudulent prescription. The statute (chapter 215 § 4, Laws 1887) casts upon a...