State v. Hamlett
| Decision Date | 04 February 1908 |
| Parties | STATE OF MISSOURI, Appellant, v. HAMLETT, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Pike Circuit Court.--Hon. David H. Eby, Judge.
AFFIRMED.
Judgment affirmed.
James W. Reynolds for appellant.
A person charged with the violation of one section of the statute may be convicted of the violation of another section if the indictment is broad enough to cover it. State v Heckler, 81 Mo. 420; State v. Kurtz, 64 Mo.App 125; State v. Quin, 94 Mo.App. 66. It is not necessary to negative an exception or proviso contained in the section creating or defining the offense unless it is a necessary part of the description of the offense. State v. Barr, 30 Mo.App. 503; State v. Hale, 72 Mo.App. 81; State v. O'Brien, 74 Mo. 550; State v. Stocker, 80 Mo.App. 355; State v Handler, 178 Mo. 42; 1 Bishop on Criminal Procedure (4 Ed.), sec. 639. Provisos and exceptions though in the same section, if they do not form a part of the clause defining the offense do not have to be negatived. State v. Shipplett, 20 Mo. 418; State v. Cox, 32 Mo. 568; State v. Sutton, 24 Mo. 378; State v. Bockstruck, 136 Mo. 351. Again, where the section of the statute defining the offense contains an exception or a proviso exempting or excepting a class of persons from its operation it is not necessary to negative such exception or proviso. State v. Smith, 60 Mo.App. 287; State v. Elam, 21 Mo.App. 292; 1 Bishop on Criminal Procedure (4 Ed.), sec. 638.
Pearson & Pearson for respondent.
When an exception, is so ingrafted in the enacting clause of the statute that the offense cannot be described without negativing the exception; or, that the offense is not capable of exact definition without reference to the exception, it must be set out or negatived in the indictment. State v. Schneider, 186 Mo. 468; State v. Handler, 178 Mo. 42; State v. Bockstruck, 136 Mo. 351; State v. Shifleet, 20 Mo. 418; State v. Seal, 47 Mo.App. 605.
--The following indictment was returned against defendant:
Foreman of the Grand Jury.
On motion of defendant the indictment was quashed for failing to state an offence 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 offence 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 (R. S. 1899). 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 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 drugstore. 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 offence for any person who is not a registered pharmacist within the meaning of the chapter, to conduct a drugstore for the purpose of retailing, compounding and dispensing medicines and poisons for medical use without keeping constantly in his employ a competent pharmacist or druggist. And it is made an offence for the proprietor of a drugstore or pharmacy to allow any person except a registered pharmacist, to compound or dispense the prescriptions of physicians, or retail or compound poisons for medical use, except under the supervision of a registered pharmacist. It is also made an offence for a pharmacist who receives a certificate as such, to engage in business as a pharmacist in any county until he has had his certificate recorded in the office of the clerk of the county court (sec. 3039). The present indictment says the defendant, on September 10, 1905, in the county of Pike, unlawfully conducted a pharmacy or drugstore, for the purpose of retailing, compounding and dispensing medicines and poisons for medical use; and then and there unlawfully compounded, retailed and dispensed medicines and poisons for medical use to one Maud McGinnis; without being then and there a duly registered pharmacist and without having legal authority to retail, compound and dispense said medicines and poisons. It is conceded the indictment does not seek to charge an offense under section 3039, which provides for the registration of certificates received by a pharmacist from the Board of Pharmacy, in the county where the holder of the certificate proposed to do business. But it is contended an offense is charged under section 3036, which says any person not a registered pharmacist within the meaning of the chapter, shall not conduct a pharmacy, drugstore or apothecary shop for the purpose...
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