State v. Terry
| Decision Date | 10 April 1911 |
| Docket Number | 18,684 |
| Citation | 128 La. 680,55 So. 15 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. TERRY |
Rehearing Denied May 8, 1911.
Appeal from Fifteenth Judicial District Court, Parish of Calcasieu Winston Overton, Judge.
C. E Terry was convicted of crime, and he appeals. Affirmed.
J. W Baker and A. R. Mitchell, for appellant.
Walter Guion, Atty. Gen., and Joseph Moore, Dist. Atty. (G. A. Gondran, of counsel), for the State.
Act 85 of 1886, p. 124, makes it a crime for any physician to prescribe intoxicating liquors with intent to evade, or to assist others in evading, the intoxicating liquors laws of the state. The act applies both to prohibition territory and to territory where the sale of intoxicating liquors is allowed on payment of a license. As applicable to the latter territory, it makes it a crime for any physician to prescribe intoxicating liquors with intent to evade, or to assist others in evading, the law requiring a license to be obtained for selling intoxicating liquors. As applicable to prohibition territory, it makes it a crime for any physician to prescribe intoxicating liquors with intent to evade, or assist others in evading the law prohibiting the sale of intoxicating liquors.
An indictment for a violation of this statute was found against defendant in the parish of Calcasieu. Calcasieu being a prohibition parish, the proper intent to have charged would have been the intent to evade, or assist in evading, the laws prohibiting the sale of liquors. But, by error, instead of charging that intent, the indictment charged the intent to have been to evade the law requiring a license to be paid for selling intoxicating liquors. The case was one required by law to be tried by the judge without a jury. After one witness had been sworn and in part heard, the judge ordered a mistrial to be entered, and directed the district attorney to file an information alleging the proper intent; and this was done.
To the information thus filed the accused pleaded once in jeopardy.
The test of once in jeopardy is whether on the former trial the accused could have been convicted of the crime charged against him on the second trial. Applying that test to this case, we see clearly that this plea of once in jeopardy is without merit. No matter what evidence might have been offered on the first trial, the accused could not have been convicted on the offense now charged against him, namely, of having prescribed intoxicating liquors with the intent to evade the law requiring a license to be paid for selling liquors.
The consideration of the other points in the case had best be preceded by a statement of the facts. In the parish of Calcasieu, it being suspected that the prohibition law which there prevails was being violated, two detectives were employed to discover the violations, and bring the culprits to justice. Both of these detectives were strangers to defendant. One of them, whose name was Pinson, applied to defendant for a prescription under the assumed name of "Watson." The defendant heard the name as "Watkins," and gave the prescription in the latter name. The other detective applied for and received a prescription in his own name of Higginbotham. The information charged the defendant with having given prescriptions to Pinson and Higginbotham.
The information against defendant charges that, "being a physician and practitioner of medicine, he did prescribe spirituous and intoxicating liquors to one W. M. Pinson and W. W. Higginbotham, with the intent to evade, and to assist another, Adolph Meyer, in evading, the law prohibiting the sale of spirituous and intoxicating liquors in the parish of Calcasieu, state of Louisiana."
Adolph Meyer was the druggist who filled the prescriptions; or, in other words, sold the intoxicating liquors.
The accused called for a bill of particulars. In response to the call, the district attorney stated that one of the prescriptions was given by defendant to W. M. Pinson on October 26, 1910, in the office of accused above the drug store of Adolph Meyer in the city of Lake Charles, between Division and Mill streets, for some good pure whisky, unmixed...
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...on the first. State v. Keogh, 13 La.Ann. 243; State v. Vines, 34 La.Ann. 1079; State v. Williams, 45 La.Ann. 936, 12 So. 932; State v. Terry, 128 La. 680, 55 So. 15; State v. Roberts, 152 La. 283, 93 So. 95, 24 A.L.R. 1122; State v. Foster, 156 La. 891, 101 So. The trial court correctly mai......
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...accused could have been convicted of the crime charged against him on the second trial, reaffirming the pronouncements in State v. Terry (128 La. 680, 55 So. 15) supra; State v. Yokum (155 La. 846, 99 So. 621), supra; State v. Foster (156 La. 891, 101 So. 255), supra. We further stated: 'Th......
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