State v. Hamlett
| Decision Date | 04 February 1908 |
| Citation | 129 Mo. App. 70,107 S.W. 1012 |
| Parties | STATE v. HAMLETT. |
| Court | Missouri Court of Appeals |
Rev. St. 1899, § 3036 [Ann. St. 1906, p. 1741], prohibits one not a registered pharmacist from conducting a pharmacy, etc., "except as hereinafter provided." Section 3037 permits one not a pharmacist to conduct such business if he employs a competent pharmacist. Section 3045 [page 1745] prohibits one not a registered pharmacist from conducting a pharmacy, etc., except as provided in section 3040 [page 1743]. Held, under the rule of criminal pleading that, whether a statutory exception or proviso is contained in the clause of the statute creating the offense or in a subsequent clause, it must be negatived if it is so interwoven with the clause defining the offense as to be a material part thereof, and be one of the essential ingredients of the criminal act, an indictment under section 3036 or section 3045 must negative the exception contained in section 3040 by alleging that defendant did not employ a registered pharmacist.
2. DRUGGISTS — CRIMINAL PROSECUTIONS.
An indictment for unlawfully conducting a pharmacy, etc., and unlawfully retailing, etc., medicines and poisons without being a registered pharmacist, cannot be sustained under Rev. St. 1899, § 3037 [Ann. St. 1906, p. 1741], prohibiting a druggist from permitting one not a registered pharmacist to retail poisons, etc., except under the supervision of a registered pharmacist.
Appeal from Circuit Court, Pike County; David H. Eby, Judge.
S. P. Hamlett was indicted for unlawfully conducting a pharmacy, and the state appeals from an order quashing the indictment. Affirmed.
Jas. W. Reynolds, for the State. Pearson & Pearson, for respondent.
The following indictment was returned against defendant:
On motion of defendant the indictment was quashed for failing to state an offense under the statutes of the state in omitting to allege defendant did not keep constantly in his employ a registered pharmacist, and at the time of the alleged offense had no such pharmacist in his employ. In other words, the indictment failed to negative the exception to the statute contained in a subsequent section. The state appealed from the order sustaining the motion to quash, and now affirms the indictment is good under either of three sections, to wit, 3036, 3037, and 3045, Rev. St. 1899 [Ann. St. 1906, pp. 1741, 1745]. These sections are found in chapter 23, which deals with druggists and their licenses. We copy the sections:
Besides those sections there are others which have to do with this cause. Sections 3038, 3039, and 3040 [pages 1742, 1743] provide for the appointment of a board of pharmacy, composed of three members, by the Governor of the state, for certificates to be issued by said board to pharmacists, and the registration of said certificates, and a prohibition against a pharmacist who has a certificate engaging in business in any county until he has the certificate recorded in the office of the clerk of the county court, and, further, for an examination by said board of applicants for certificates to conduct a pharmacy or drug store. Section 3040 concludes with a proviso permitting any person not a pharmacist or druggist to own or conduct the business of selling at retail, compounding, and dispensing medicines and chemicals if he keeps constantly in his employ a competent pharmacist or druggist. The purpose of this legislation is to prevent medicines and poisons intended for medical use from being retailed and compounded in this state, except by a person certified to have the requisite qualifications; that is to say, a registered pharmacist. To accomplish this purpose, the statutes make it an offense for any person who is not a registered pharmacist within the meaning of the chapter to conduct a drug store for the purpose of retailing, compounding, and dispensing medicines and poisons for medical use without keeping constantly in his employ a...
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Slack v. State
...Ct. 254, 43 L. Ed. 505]; Schooner Hoppett v. U. S., 7 Cranch, 389 [3 L. Ed. 380]; U. S. v. Cook, 17 Wall. 168 [21 L. Ed. 538]; State v. Hamlett , 107 S. W. 1012; Bush v. Republic, 1 Tex. 455; Lewis v. State, 2 Tex. App. 26; Archer v. State, 10 Tex. App. 482; Huntsman v. State, 12 Tex. App. ......
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State v. Pilkinton
...(a prosecution for sale of cocaine by a druggist without the written prescription of a licensed physician or dentist); State v. Hamlett, 129 Mo.App. 70, 107 S.W. 1012 (a prosecution for unlawfully conducting a pharmacy and retailing medicines and poisons without being a registered pharmacis......
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State v. Humfeld
...the exception or proviso and describing the offense with that clearness to which the accused is always entitled. [See State v. Hamlett, 129 Mo.App. 70, 107 S.W. 1012.] But, however this may be, in the instant case the asserted as the exception is parcel of the statute creating and denouncin......
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State v. Humfeld
...the exception or proviso and describing the offense with that clearness to which the accused is always entitled. See State v. Hamlett, 129 Mo. App. 70, 107 S. W. 1012. But, however this may be, in the instant case the proviso asserted as the exception is parcel of the statute creating and d......