State v. Renkard

• Decision Date: 01 October 1910
• Citation: 131 S.W. 168,150 Mo. App. 570
• Parties: STATE v. RENKARD.
• Court: Missouri Court of Appeals

131 S.W. 168

150 Mo. App. 570

STATE v. RENKARD.

St. Louis Court of Appeals. Missouri.

October 1, 1910.

1. INDICTMENT AND INFORMATION (§ 111) — STATUTES — SUFFICIENCY OF ACCUSATION.

Under Ann. St. 1906, § 3044-1, forbidding the sale of cocaine except upon the written prescription of a physician, licensed under the laws of the state, an information charging a sale of cocaine without a written prescription prescribing its use for the purchaser, a person named in the information, will not sustain a conviction because of its failure to aver that the cocaine sold was not prescribed for some person other than the one named in the information.

2. INDICTMENT AND INFORMATION (§ 111) — STATUTES — EXCEPTIONS AND PROVISOS.

Where there is an exception or a proviso in the same clause or section of the statute which creates the offense, and which enters into and becomes a part of the description of the offense, or is a material qualification of the language defining or creating it, an information charging an offense under the statute must show by proper negative averment that the accused is not within such exception or proviso.

3. INDICTMENT AND INFORMATION (§ 111) — STATUTES — SUFFICIENCY OF ACCUSATION.

An information under the statute forbidding the sale of cocaine except upon the written prescription of a duly licensed physician must negative every hypothesis and every presumption of innocence under which a sale by the accused could have been lawful under the excepting clause.

Appeal from St. Louis Court of Criminal Correction; Wilson A. Taylor, Judge.

Louis Renkard was convicted of selling cocaine without a written prescription from a physician, and he appeals. Reversed.

H. D. McCorkle and Sheridan Webster, for appellant. V. H. Falkenhainer, for the State.

NORTONI, J.

Defendant, a druggist, was convicted of the offense of selling cocaine without first having a written prescription of a licensed physician prescribing its use for the person named in the indictment, and appeals from that judgment.

The statute under which the conviction was had is as follows: "It shall not be lawful for any druggist or other person to retail or sell or to give away any cocaine, hydro-chlorate or other salt of or any compound of cocaine, or preparation containing cocaine, or any salt(s) of or any compound thereof, excepting upon the written prescription of a licensed physician or licensed dentist, licensed under the laws of the state, which prescription shall only be filed once: Provided, that the provisions of this section shall not apply to sales in the usual quantities at wholesale by any manufacturer or wholesale dealer when such manufacturer or wholesale dealer shall have affixed to the box, bottle or package containing such cocaine, hydro-chlorate or other salt or compound of cocaine or preparation containing cocaine, a label specifically setting forth...