State v. Stell
| Decision Date | 11 February 1929 |
| Parties | STATE OF MISSOURI, RESPONDENT, v. JOHN STELL, APPELLANT. [*] |
| Court | Kansas Court of Appeals |
Rehearing Denied 223 Mo.App. 221 at 227.
Appeal from the Circuit Court of Callaway County.--Hon. David H Harris, Judge.
AFFIRMED.
Judgment affirmed.
Joseph R. Palmer for respondent.
N. T Cave and Creech & Creeck for appellant.
Trimble, P. J., absent.
Appellant was convicted in the circuit court of Callaway county on a charge of unlawfully possessing intoxicating liquor. The State's evidence was to the effect that defendant was arrested in Troy, Missouri, while standing in front of a restaurant. A deputy sheriff arrested him under a warrant based on a charge of an offense other than the one before us. The defendant removed from his pocket a small quantity of whisky in a half pint bottle and handed it to one of the officers. At the trial the whisky was produced and certain officers testified that in their opinion the liquor was a good grade of "moonshine;" that it had the appearance of bonded whisky, but did not smell like bonded whisky.
The defendant's evidence was to the effect that he had procured a prescription for a pint of whisky for medicinal use from Dr. A. A. Gossow, a duly licensed and practicing physician; that he caused said prescription to be filled at the drug store of H. B. Kienker, in the city of St. Charles, Missouri. The druggist testified that he had filled the prescription and produced his record, which showed that the prescription had been filled on the day that the defendant was arrested. The record of the county court of St. Charles county, Missouri, was introduced in evidence and showed that Dr. Gossow was authorized to write prescriptions for intoxicating liquor. Defendant testified that he had poured a part of the liquor which he had procured from the druggist into a half pint bottle and had added lemon soda for the purpose of reducing the proof of the liquor in accordance with the instructions given him by the physician, and that he had purchased the liquor along with other medicines for medicinal use. The prescription was introduced in evidence. It was written upon a blank prepared by the United States Internal Revenue officers according to the authority vested in them by the National Prohibition Act. It stated that the name of the patient was John Stell, and there was a notation thereon "tablespoonful diluted every three hours. " The prescription did not state the name of the disease or malady for which the liquor was prescribed nor that it was prescribed as a necessary remedy. In rebuttal the State introduced in evidence the report of Dr. A. A. Gossow which had been filed with the clerk of the county court of St. Charles county, Missouri; which report stated that the physician had issued a whisky prescription to defendant on June 24, 1927, the day following the arrest of the defendant. The defendant objected to the introduction of this report on the ground that the report of the doctor could not impeach his written prescription, and on the ground that the report was hearsay evidence and was an act of the doctor not done in the presence of the defendant. This objection was overruled. The court gave to the jury instruction No. 5 concerning which no objection is made in this court. It is the usual main instruction covering the essential elements of the case.
The court also gave instruction No. 6 of its own motion, over the objections and exceptions of defendant, which is as follows:
"Six--The jury are instructed that although you may find and believe from the evidence in this case that the defendant Stell bought the intoxicating liquor found in his possession at Troy, in Lincoln county, Missouri, on the 23rd day of June, 1927 (if you find it was so found), from a registered and licensed druggist in St. Charles, Missouri, on a physician's prescription for intoxicating liquor issued to the defendant Stell, yet if you further believe and find from the evidence beyond a reasonable doubt that said intoxicating liquor was bought by defendant merely for beverage purposes and was possessed, kept and so used by him outside of his private residence, then the fact that he bought said intoxicating liquor on a physician's prescription constitutes no defense whatever to the charge in this case; and if you find the other facts as required in instruction No. 5 given herewith on part of the State, then you should find the defendant guilty as charged and-assess his punishment as provided and set forth in said instruction No. 5."
The defendant offered instructions numbered "E" and "F," both of which were refused by the court. They were as follows:
The appellant in this court assigns as error the giving of instruction No. 6, the refusal of instructions "E" and "F," and the action of the court in admitting the report of the physician to the county court, reciting the date when he had issued a prescription to defendant.
It is not claimed by appellant that there was not sufficient evidence to submit the case to the jury under instruction No. 5.
We are of the opinion that the evidence offered by the defendant to the effect that the whisky in question was obtained under a prescription from a licensed physician was unavailing as a defense. The prescription was written upon a blank prepared by Federal officers under the authority vested in them by the National Prohibition Act. The Federal law provides that no physician shall prescribe liquor unless after careful examination of the person for whose use such prescription is sought, or after such examination is found impracticable, then, upon the best information obtainable, he, in good faith, believes that the use of such liquor as a medicine by such person is necessary and will afford relief to him from some known ailment. However, there is no provision in the Federal statute that the prescription shall state that it is procured as a necessary remedy, nor that it shall state the name of the disease or malady for which such liquor is prescribed. Therein it differs from the law of the State of Missouri.
Section 6592, Revised Statutes 1919, makes it unlawful for a licensed physician to issue a prescription for ethyl alcohol or wine without the name of the person for whom such liquors are prescribed written thereon, together with the name of the disease or malady for which such liquor is prescribed.
Section 6592A, Laws of 1921, p. 417, provides that nothing in the act shall be so construed as to prevent or prohibit any reputable, licensed physician, having authority or permit to prescribe ethyl alcohol or wine, from prescribing in lieu thereof any intoxicating liquor susceptible of use as a beverage, or to prevent or prohibit any druggist from possessing such intoxicating liquors; and in all such cases the physician writing such prescriptions, the person for whom such prescription is written, and the druggist filling same, shall be subject to the same rules and regulations and to the same penalties and restrictions as provided in this act for the prescription and sale of ethyl alcohol and wine.
Section 13, Laws of 1923, p. 240, provides that a druggist, pharmacist, or proprietor of a drug store, holding a permit under the laws of this State, may sell or give away ethyl alcohol, whisky or wine on a written prescription obtained from a regularly practicing physician only when such physician shall state in such prescription the name of the person for whom the same is prescribed and that such ethyl alcohol, whisky or wine is prescribed as a necessary remedy.
It therefore appears that the physician violated the law of the ...
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