State v. Pence

• Decision Date: 29 October 1909
• Docket Number: No. 21,427.,21,427.
• Citation: 89 N.E. 488,173 Ind. 99
• Parties: STATE v. PENCE.
• Court: Indiana Supreme Court

173 Ind. 99

89 N.E. 488

STATE

v.PENCE.

No. 21,427.

Supreme Court of Indiana.

Oct. 29, 1909.

Appeal from Circuit Court, Henry County; Ed. Jackson, Judge.

William M. Pence was indicted for selling whisky as a druggist without a license, and from an order overruling the State's demurrer to defendant's plea in abatement, and discharging defendant, the State appeals. Affirmed.

James Bingham, Alexander G. Cavins, Edward M. White, William H. Thompson, and George M. Barnard, for the State. Mark E. Forkner and George D. Forkner, for appellee.

MONTGOMERY, C. J.

Appellee was charged by indictment, in two counts, with having made a sale of whisky as a druggist without license-the first count alleging that the sale was not made for medicinal, industrial, or scientific purposes, and the second, that the purchaser was not a person known to appellee not to be in the habit of using liquors as a beverage. The state's demurrer to a plea in abatement of the indictment was overruled, and, the state declining to plead further, appellee was discharged. The correctness of the ruling upon demurrer is the only question presented for our decision.

The plea in abatement alleged facts in detail showing in substance that, after repeated refusals so to do, appellee was required by order of the circuit court to produce and deliver to the grand jury of the county, within a prescribed time, all applications made to him by persons desiring to purchase liquors, upon which sales were made by him, for the use of said grand jury in investigating alleged illegal sales of liquor made by him as a druggist in violation of what is commonly known as the “Blind Tiger Law”; that he did deliver such applications to said jury involuntarily, and only because he was coerced so to do by the order and judgment of the circuit court, and to avoid threatened arrest and imprisonment, and disgrace to himself and family; that the indictment in this cause was based wholly upon the applications delivered by him to said grand jury under duress as aforesaid, and without any other evidence of any kind or character, and that the indictment was not found or returned upon any knowledge of any member of the grand jury or any officer thereof, or upon any evidence or information by him given to the grand jury.

This prosecution was founded upon the act of March 16, 1907 (Acts 1907, p. 689, c. 293 [Burn's Ann. St. 1908, §§ 8351, 8352]).

It is provided by section 1 of the act: “That any person not being licensed under the laws of the state of Indiana who shall sell *** any spirituous liquors except as herein provided,” shall be guilty of a misdemeanor, “provided, that none of the provisions of this section shall apply to any druggist or pharmacist who is licensed as such by the State Board of Pharmacy.”

Section 2 provides that: “It shall be lawful for any druggist or pharmacist to sell vinous or spirituous liquors in quantities not less than a quart at a time for medicinal, industrial, or scientific purposes, and for no other purposes, and then only upon the written (not printed or type-written) prescription of a reputable physician in active practice, or upon the written and signed application of any other person who is personally known to such druggist or pharmacist, and who is by him known not to be a person in the habit of using intoxicating liquors as a beverage, such person stating therein that such liquor is desired and will be used for medicinal, scientific, or educational purposes only, and upon making such sale such druggist shall endorse in writing on such application a statement that in his opinion such liquor is desired for the purposes last above stated, and for no other purposes whatever. *** Such prescription or application shall be plainly written, dated, and signed in his or her full and correct name by the maker thereof, and the date thereof shall be plainly written thereon by the person making such sale, and such prescription or application shall be filed and carefully preserved for at least one year from the date of such sale, by the person making such sale, and only one sale shall be made upon such prescription or application.”

It is further provided that any person violating the provisions of the act shall be punished by a fine, and for a second offense the license of the druggist or pharmacist shall be revoked; and any person making any false or misleading statement touching the purpose for which such liquor is purchased, or who shall use the same as a beverage, shall be fined, and for a second offense be imprisoned in the county jail.

The contention in this case arises from differing views as to the legislative purpose in requiring the preservation of such written prescriptions and applications for liquors. The Attorney General argues that under the law these papers when filed become public documents, and are preserved wholly for the use and benefit of the public, while counsel for appellee insist that they are private papers, the production of which for use as evidence cannot be enforced in a criminal proceeding against the druggist charged with their custody.

In our opinion, it was not the intent of the Legislature to deprive druggists and pharmacists of their proprietary interest and privacy in such papers, and that it has not done so. No sales of intoxicating liquors by a druggist or pharmacist are authorized except for specified uses, and then only upon compliance with the numerous restrictions and limitations of this act. If an illegitimate sale of liquor be made by a druggist or pharmacist, the fact and consequence are likely soon to become manifest, and prosecution, if any, be instituted within one year. If the prosecution be directed against the seller, his justification for the sale must in large measure appear in writing made at the time and preserved by himself. If the prosecution be against the purchaser for misrepresentation, or for misuse of the liquor, the writing may be available for the use of the state in proving the offense charged. In either case the evils resulting from a resort to uncertain and treacherous memories, and the commission of perjury, are obviated.

Numerous cases from other states have been cited, wherein the use of similar papers and records as evidence has been enforced and justified, but in every instance the statute providing for their preservation in express terms subjected them either to the custody or inspection of police and public officials.

The statute of Massachusetts upon this subject reads as follows: “The book, certificates, and prescriptions before provided for, or referred to, shall at all times be open in the city of Boston to...