State v. May

• Decision Date: 28 April 1890
• Citation: 11 S.E. 440,33 S.C. 39
• Parties: State. v. May.
• Court: South Carolina Supreme Court

11 S.E. 440

33 S.C. 39

State.

v.May.

Supreme Court of South Carolina.

April 28, 1890.

Intoxicating Liquors—Druggists—Appeal.

1. Under Act S. C. Dec, 18S4, amending Gen. St. § 1T43, which prohibits a druggist from selling whisky more than once on the same prescription, whether or not it directs more than one sale, and provides that such second sale shall be deemed to have been made without a prescription, a sale of the quantity authorized by a prescription in portions, on three different occasions, instead of the whole quantity at once, depends for its validity on the circumstances of each particular case, and the bona fides of the sale for medicinal purposes is a question for the jury. McIvek, J., dissenting.

2. The discretion of the trial court in its rulings on cross-examination to test the credibility of a witness will not be reviewed on appeal unless an abuse thereof is clearly manifest.

Hart & Hart, for appellant.

J. E. McDonald, for the State.

Simpson, C. J. The defendant, appellant, a druggist in Yorkville, was tried for and convicted, at the April term of general sessions for the county of York, of selling whisky to one John Robinson without a prescription from a practicing physician. He appealed upon the following exceptions: "(1) For error in refusing to permit the defendant, on cross-examination, to ask the principal witness for the state questions concerning his character, calling, and general conduct as an informer in like prosecutions, for the purpose of affecting his credibility. (2) For error in directing the jury that, if the defendant was in possession of a prescription, from a regular practicing physician, calling for the sale of three pints of whisky, and he furnished no more than the quantity prescribed, but furnished it on two or more occasions, he had violated the act of December, 1884, amending section 1743 of the General Statutes. " (3) For error in instructing the jury that if a patient goes to a physician, and says, Doctor, I want whisky, —you must give it to me, '—and the physician or apothecary, either, who gives the man whisky simply to gratify his depraved appetite for whisky, or mania for whisky, violates the law, clearly violates it, " thus impressing the jury that the violation of the law by the physician improperly giving a prescription was a violation by the druggist or apothecary who sold under it. (4) For error in holding that the person who was prescribed for by the physician must be theperson who presents the prescription and makes the purchase from the druggist. And the defendant now renews his motion for the new trial denied him in the circuit court."

How far a defendant may be indulged in the cross-examination of a witness for the state, with the view of impeaching his credibility, is not clearly settled. We mean to say that there is no clearly established rule defining the exact limit within which such cross-examination is confined. It seems that the matter is left very much in the discretion of the presiding judge, and each case must be governed by its own surroundings and facts. Any abuse of discretion on the part of the judge, of course, would be error; but such abuse should appear very clearly before the court of last resort would feel sustained in interfering. In this case, we do not find such abuse. On the contrary, we think the questions propounded were not only irrelevant to the matter at issue, but also as to the object to be accomplished thereby, and therefore they were properly excluded.

As to the second exception it seems that the defendant was presented with a prescription from a regular practicing physician, given to one John Jimmerson, for three pints of whisky, upon which the whisky was sold to one John Robinson, who, it seems, presented it; but the quantity of whisky mentioned was not all furnished at the same time. It was furnished at three different times, —a pint each time. His honor charged that this was a violation of the act, holding that the act allowed one sale only, and that here were three sales. Whether this charge was correct depends upon the construction which shall be given to the act in question. The language of the act is as follows: "No druggist or apothecary shall sell more than one time upon the same prescription, whether the same shall direct more...