State v. White

• Citation: 223 S.W. 683
• Decision Date: 08 June 1920
• Docket Number: No. 15982.,15982.
• Parties: STATE v. WHITE.
• Court: Missouri Court of Appeals

223 S.W. 683

STATE v. WHITE.

No. 15982.

St. Louis Court of Appeals., Missouri.

June 8, 1920.

Appeal from Circuit Court, Lewis County; N. M. Pettingill, Special Judge.

"Not to be officially published."

W. G. White was convicted of unlawfully issuing prescriptions for intoxicating liquor, to be used otherwise than for medicinal purposes, and appeals. Reversed and remanded.

A. F. Haney, of Canton, for appellant. Hilbert & Henderson, of Monticello, for the State:

BECKER, J.

Defendant, a physician, was convicted on an indictment in the Lewis county circuit court charging him with having unlawfully as a physician issued prescriptions for intoxicating liquor, to be used otherwise than for medicinal purposes, in violation of section 5784, Revised Statutes of Missouri 1909. The indictment consisted of 11 counts; the first 6 counts charging the issuance of such prescriptions to one John Dance, and the last 5 counts charging the issuance of such prescriptions to one Noce Whitaker. Defendant entered a plea of not guilty, and the case, being tried before a jury, resulted in a verdict against defendant on each one of the 11 counts, assessing a fine of $50 under each count. Defendant filed his motions for new trial and in arrest of judgment, which were overruled, and thereupon in due course brings this appeal.

An examination of the record discloses that during the course of the trial, over the objection of defendant, the learned trial court permitted the state to introduce in evidence several prescriptions for whisky (other than those set out in the indictment) alleged to have been made out and issued by the defendant with the knowledge that the whisky was to be used as a beverage and not for medicinal purposes. The admission of this evidence is assigned as error.

We rule the point to be well taken, and that said prescriptions should have been excluded. Such evidence was clearly irrelevant, and its introduction prejudicial error to the defendant. State v. Roberts, 33 Mo. App. 524. Upon the trial of a party accused, evidence to show that the defendant has committed other crimes than those charged in the indictment is not admissible; the exception to the rule being that such evidence is to be received, though it may also tend to prove the commission of another separate and distinct offense, only when it directly tends to prove the particular crime charged. State v. Spray, 174 Mo. 569, 74 S. W. 846; State v. Harrold, 38 Mo. 496; State v. Goetz, 34 Mo. 85; State v. Daubert, 42 Mo. 242; State v. Cummins (Sup.) 213 S. W. 969.

Appellant also contends that instruction numbered 5 given at the request of the state, is erroneous, in that it does not require the jury to find, either that the defendant knew that the whisky was...