State v. O'Kelley

Citation157 S.W. 1055,173 Mo.App. 169
PartiesSTATE OF MISSOURI, Respondent, v. JOHN O'KELLEY and W. D. FITCH, Appellants
Decision Date09 June 1913
CourtMissouri Court of Appeals

Appeal from Dade County Circuit Court.--Hon. B. G. Thurman, Judge.

Judgment affirmed.

Howard Ragsdale and J. O. Patterson for appellants.

(1) The court erred in excluding from the evidence the physician's written prescription. Sec. 5781, R. S. 1909 provides that a druggist may sell intoxicating liquor on the prescription of a regularly registered and practicing physician. The prescription must reasonably and substantially comply with the statute. State v. Clevenger, 25 Mo.App. 655; State v. Hammock, 93 Mo.App. 521. (2) Druggists may sell intoxicating liquors on written prescriptions issued by practicing physicians even in counties where the Local Option Law has been adopted. State v. Bevans, 52 Mo.App. 130; Ex parte Swann, 96 Mo. 44; State v. Moore, 107 Mo. 78; State v Russell, 99 Mo.App. 375; State v. Bartlett, 147 Mo.App. l. c. 133. (3) Where a licensed merchant keeps and sells drugs and has an arrangement with a registered pharmacist to fill or superintend the filling of all prescriptions, which he does, though he at times practices medicine to a limited extent, such merchant is a druggist within the meaning of the statute. State v. Steele, 84 Mo App. 316. (4) The court erred in refusing to grant defendants a new trial upon their motion and showing that there had been no arraignment or waiver of the same and that the record failed to disclose any arraignment or waiver. The arraignment of the accused on a criminal charge is an indispensable prerequisite to a legal trial. State v Witherspoon, 231 Mo. 706; State v. Moss, 164 Mo.App. 379.

L. A. Wetzel for respondent.

(1) Sec. 5781, R. S. 1909, which provides that a druggist, proprietor of a drug store or pharmacist may sell intoxicating liquor on the written prescription of a regularly registered and practicing physician, applies only to a duly registered pharmacist, an assistant to a registered pharmacist and to a druggist who keeps regularly and constantly in his employ a duly registered pharmacist. State v. Goff, 66 Mo.App. 491; State v. Back, 99 Mo.App. 34; State v. Russell, 99 Mo.App. 373; State v. Hammack, 93 Mo.App. 521; State v. Lucas, 94 Mo.App. 120; State v. Workman, 75 Mo.App. 454; State v. Quinn, 170 Mo. 176; State v. Steele, 84 Mo.App. 316; State v. Rafter, 62 Mo.App. 101; State v. Bevans, 52 Mo.App. 130; State v. Moore, 107 Mo. 78. (2) Under Sec. 5764, R. S. 1909, a druggist is prohibited from compounding or dispensing the prescriptions of physicians unless he had in his employ such registered pharmacist or he was such himself. State v. Chipp, 121 Mo.App. 560; State v. Jordan, 87 Mo.App. 420; State v. Shanks, 98 Mo.App. 138; State v. Clinkenbeard, 142 Mo.App. 155. (3) When liquor is sold on the prescription of a physician it must substantially correspond with and fill all the requirements of the statute. State v. Hammack, 93 Mo.App. 526. (4) The formal arraignment of a defendant upon a criminal charge has been dispensed with in this State. The announcement to the court and jury that defendants plead "not guilty" was in fact entering a plea was a waiver of the error in not formally arraigning defendants before trial was commenced and having proceeded without objecting to the error in not reswearing the jury waives the error. State v. Braunschweig, 36 Mo. 397; State v. Grate, 68 Mo. 22; State v. Sanders, 53 Mo. 234; State v. Weeden, 133 Mo. 80. (5) When defendant announces himself ready for trial he in effect enters a plea and the failure of the record to contain a formal statement on that point would be a mere irregularity, for which, no other reasons appearing, judgment would not be set aside. Spicer v. People, 11 Ill.App. 294 (Bradw.) .

STURGIS, J. Robertson, P. J., concurs. Farrington, J., dissents and files separate opinion.



At the outset of this case it is necessary to observe that the clerk in copying and certifying the bill of exceptions as part of the record herein has failed to insert where called for certain documentary evidence offered in the case. It is not sufficient that the clerk merely certify the copy of the bill of exceptions as filed in his office, but wherever documentary evidence has been offered and there is a call for the same in the bill of exceptions by saying therein, "Clerk will here copy same," or equivalent words, care should be taken by the clerk to follow such directions and to actually copy and insert the documentary evidence referred to.

However, as both plaintiff and defendants have filed briefs in this court and argued the case orally, and both sides concede the contents of the county court records, which should have been but are not copied into the transcript, and no question is raised as to the same, we will not require the clerk to amend his transcript but will treat such record as being copied in the bill and as showing and having the legal effect conceded here by both parties.

The defendants were tried jointly and both convicted of selling intoxicating liquors in Dade county, Missouri, in violation of the Local Option Law adopted and in force in that county. No error is predicated on the information, verdict or judgment. It is conceded that the Local Option Law had been legally adopted and was in force in Dade county at the time of the alleged offense. The errors complained of are such as occurred during the progress of the trial.

The facts show that the defendants were at, and prior to, the date of the alleged offense partners in the business of running a drug store at the town of Everton. Their stock of drugs, other than the kind delivered in barrels and kegs, seems to have been limited. One of the defendants said he could not say whether as much as ten barrels of beer per week were delivered to them or not but thought they received as much as five barrels. One of the defendants also admitted that he had been twice convicted of selling intoxicants in violation of the law and had once plead guilty to allowing intoxicating liquors to be drunk on his premises. There was much evidence showing that defendants had the reputation of being persistent violators of the liquor laws of the State. These facts are stated in explanation of the seemingly heavy penalty of a fine of three hundred dollars and ten months in the county jail assessed against each defendant by the verdict of the jury.

As to the particular offense charged in the information, one Joe Linley, a boy under age, testified that in August, 1912, he went to defendants' place of business and solicited defendant O'Kelley to sell him a quart of whiskey. O'Kelley told him that he must first get a prescription. He says defendant Fitch was also present at this transaction although this is denied by said defendant. There was also present a certain physician, Dr. E. Spyers, a man about seventy-five years old, who, defendants say, was regularly employed by them as a pharmacist and who stayed about the store but who had little, if any, practice as a physician other than that incidentally growing out of defendants' business. The witness Linley did not know this doctor or that he was a doctor, and says that he must have been told by one of the defendants, whom he says were the only persons present other than himself and the doctor, where and how to get the prescription. The witness, as well as the others present, seems to have regarded the matter of getting the prescription as a mere formality and he could not remember much about it or as to its contents or whether it was ever in his possession. He seemed surprised that he should be asked if he was sick at the time or had represented himself as being sick. The condition of his health was of little importance to either him or the doctor. The witness had evidently diagnosed his own case and prescribed exactly what was needed as a necessary remedy, to-wit, one quart of whiskey. It was a simple remedy and needed no directions as to the manner of taking. One of the defendants promptly sold the whiskey and collected the money.

The witness said this transaction was in August or possibly in July, 1912. The defendants offered in evidence as justifying this sale of whiskey what they termed a prescription, which is as follows: "Take this to O'Kelley & Fitch, Everton, Missouri. For Joe Linley, R. Spts. Fermenti Qy., as a necessary remedy. E. S., M.D. No. , Date 4 15." The court excluded this evidence and this is assigned as error.

That druggists may sell intoxicating liquors on written prescriptions issued by "a regularly registered and practicing physician" as provided by section 5781, Revised Statutes 1909, even in counties where the Local Option Law is in force, is no longer debatable. [Ex parte Swann, 96 Mo. 44, 9 S.W. 10; State v. Moore, 107 Mo. 78, 16 S.W. 937; State v. Russell, 99 Mo.App. 373, 375, 73 S.W. 297; State v. Bartlett, 147 Mo.App. 133, 125 S.W. 839.]

The statute in question, section 5781, limits the right to sell intoxicants on a physician's prescription to "a druggist, proprietor of a drug store or pharmacist." The proprietor of a store dealing in drugs and medicines may be either a druggist within the druggist act of which section 5781 is a part, or merely a merchant and licensed as such. To come within the druggist act, so as to be allowed to sell intoxicants on physicians' prescriptions, he must be a registered pharmacist or assistant pharmacist or have such a person in his employ for the purpose of compounding physicians' prescriptions. [State v. Jordan, 87 Mo.App. 420; State v. Workman, 75 Mo.App. 454; State v. Goff, 66 Mo.App. 491, 495; State v. Quinn, 170 Mo. 176, 67 S.W. 974, 70 S.W. 1117.]

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