State v. Morton

• Decision Date: 02 April 1917
• Docket Number: 4074.
• Citation: 162 N.W. 155,38 S.D. 504
• Parties: STATE v. MORTON.
• Court: South Dakota Supreme Court

162 N.W. 155

38 S.D. 504

STATE v. MORTON.

No. 4074.

Supreme Court of South Dakota

April 2, 1917

Appeal from Circuit Court, Roberts County; Thos. L. Bouck, Judge.

G. M Morton was convicted of an offense, and he appeals. Reversed and remanded.

Whiting J., dissenting.

Howard Babcock, of Sisseton, for appellant.

C. C Caldwell, Atty. Gen., and C. R. Jorgenson, of Sisseton, for the State.

McCOY J.

This appeal was taken from a judgment of the circuit court of Roberts county convicting the defendant, a practicing physician, of unlawfully furnishing to one Hougen a prescription for intoxicating liquor to be used as a beverage, and not for medicinal purposes. Among other things, the appellant assigns the insufficiency of the evidence to sustain verdict and judgment. It appears from the evidence that appellant, on the 1st day of July, 1915, issued and gave to Hougen a prescription for one-half pint of brandy, and which prescription recited that said brandy was to be used "for medicinal use, and not to be given away." On this prescription Hougen procured one-half pint of brandy at a drug store of which appellant was a part owner. Hougen, who was a stone mason, a witness for the state, testified that he went to Dr. Morton and told him that his stomach bothered him and that he could not eat, that he felt tired and had no appetite, and that his work was too heavy for him; that appellant told him that a little brandy before his meals would be as good as anything he could give him; that he took and used it the way he directed. Appellant testified that he had been a practicing physician about 35 years; that he had known Hougen about 12 years; that at the date of this prescription Hougen came to him and stated that his appetite was failing, and he had general depression and weakness; that his general appearance indicated that he was run down and he seemed to be in a condition where, to the best of my judgment as a physician, he needed a stimulant. "It seemed to me that he was simply run down through overwork and lack of nourishment; he was not in a normal condition of body; he was subnormal and ailing. From his appearance, and from what he told me, it was my opinion that he needed a stimulant of some kind, and I thought a half pint of light stimulant was absolutely indicated. My directions were to take an ordinary wine glass three times a day 10 or 15 minutes before eating, and not to exceed that quantity. It would be impossible that that amount taken in that way would be intoxicating. A less quantity than that would not stimulate. My conviction was that the prescription was strictly according to law. I supposed it was intended for medicine, and had no other motive in prescribing it." The undisputed evidence shows that the liquor obtained under the prescription given to Hougen was not drunk as a beverage, but was taken as a medicine as directed by appellant. It also appeared that appellant had issued some four or five other prescriptions for similar amounts of intoxicating liquors to other parties about the time of issuing the prescription on which this prosecution is based. There is nothing in the record to disclose that any of these other prescriptions were issued in violation of law. We are of the view that the evidence was wholly insufficient to show that the prescription in question was issued for intoxicating liquors intended to be used as a beverage and in violation of the provisions of chapter 123, Laws of 1905.

There is some contention made that the rule announced in State v. Sasse, 6 S. D. 212, 60 N.W. 853, 55 Am. St. Rep. 834, is applicable to the facts of this case. We are of the opinion that this contention is not well grounded. It is made criminal to sell intoxicating liquors to a minor under any circumstances, no matter whether the seller, in good faith, believed the purchaser to be a minor. Under the statute in question (chapter 123, Laws of 1905) a physician may sell or give a prescription for intoxicating liquors in cases of actual sickness, and when the person to whom the prescription is given is a patient of the physician who is afflicted with some disease, and his condition is such that, in the opinion of the physician, the taking by said patient of intoxicating liquors would be beneficial to him. We are of the view that section 1 of said chapter 123 was intended to apply in cases where some one other than the patient himself makes application to the physician for the prescription, in which case the physician must ascertain whether the person by whom the liquor is to be used is actually sick, and in which case the sick person by whom the liquor is to be used might not be present before the physician issuing the prescription, and which sick person might not be under the care of a physician at all, or might be the patient of some other physician.

We are also of the view that section 2 of said chapter 123 has application in cases like the one at bar where the purchaser of the prescription is the patient of the physician who issues the prescription, and which patient has sought the professional aid, skill, and advice of such physician. We concede that a physician without any reasonable cause therefor could not arbitrarily say that a person was afflicted with a disease and, in his opinion, needed an alcoholic stimulant; but that is not this case. The undisputed evidence in this case shows that the person to whom the prescription was given personally applied to the appellant, in his capacity as a physician, for aid and advice in relation to his physical condition; that such person had failing appetite; general depression and weakness; felt tired from overwork and lack of nourishment; was not in a normal condition of body; was subnormal and ailing. We are of the...