De Tarr v. State

• Decision Date: 13 February 1906
• Docket Number: No. 5,863.,5,863.
• Citation: 37 Ind.App. 323,76 N.E. 897
• Parties: DE TARR v. STATE.
• Court: Indiana Appellate Court

37 Ind.App. 323

76 N.E. 897

DE TARR

v.STATE.

No. 5,863.

Appellate Court of Indiana.

Feb. 13, 1906.

Appeal from Circuit Court, Pike County; E. A. Ely, Judge.

David De Tarr was convicted of illegally selling intoxicating liquor, and he appeals. Reversed.

J. W. Wilson, for appellant. C. W. Miller, W. C. Geake, C. C. Hadley, and L. G. Rothschild, for the State.

WILEY, J.

Appellant is a druggist, and was prosecuted and convicted for selling intoxicating liquor in less quantity than a quart without the written prescription of a “reputable practicing physician.” Overruling his motion for a new trial is the only error assigned.

The reasons for a new trial are: (1) That the decision is not sustained by sufficient evidence; (2) that the decision is contrary to law. Under the statute (subdivision 9, § 1911, Burns' Ann. St. 1901) insufficiency of the evidence is not a ground for a new trial in a criminal case. Huffman v. State, 21 Ind. App. 449, 52 N. E. 713, 69 Am. St. Rep. 368;Baum v. State, 157 Ind. 282, 61 N. E. 672, 55 L. R. A. 250. If, however, the evidence fails to sustain the charge in the indictment, a verdict or decision finding the accused guilty will be regarded as contrary to law. Stout v. State, 78 Ind. 492;Deal v. State, 140 Ind. 354, 39 N. E. 930. By this rule, under the second reason for a new trial, if it appears from the record that the evidence fails to sustain the charge against appellant, a reversal should be ordered.

Appellant was indicted under section 7283j, Burns' Ann. St. 1901, which provides that: “It shall be unlawful for any spirituous, vinous or malt liquors to be sold or given away in any drug store in any quantity less than a quart at a time, except upon the prescription of a reputable practicing physician.” The material facts upon which appellant was convicted are without conflict, and may be briefly narrated as follows: During the month of July, 1904, for a long time prior thereto, and ever since, appellant owned and operated a drug store in the town of Winslow, Pike county, Ind. A part of the stock in the store was whisky, which was sold for medical purpose on prescription. That appellant was, during the month of July, 1904, for a long time prior thereto, and ever since has been, a reputable practicing physician. That during the month of July, 1904, and for a short time prior thereto, Dr. H. T. Baily was, and ever since has been, a practicing physician in Pike county, Ind. That in the months of June, July, and August, 1904, one Frank Erwin and his wife resided in the town of Winslow, and for part of June and during the month of July of that year Mrs. Erwin was sick, and during a good part of her sickness was confined to her house and to her bed, was nursed by her sister, and attended by Dr. H. T. Baily as her family physician. That during her sickness and on the 2d day of July, 1904, he prescribed a half pint of whisky for her, to be taken in doses of a teaspoonful every two hours, and did write out the prescription as follows: “Rx For Frank Erwin, one half pint spirits fermenti. Sig: Teaspoonful every two hours. [Signed] H. T. Baily. July 2, 1904”-and handed it to Frank Erwin, the party therein named, and told him to get it filled. Erwin took it, went across the street to the drug store of appellant, and handed the paper to him. He took it, filled it, put label on bottle with directions thereon, and handed it to Erwin, who paid appellant 25 cents for it, took it home, and it was given to the patient for whom it was intended, as prescribed, in teaspoonful doses every two hours. At the time Dr. Baily treated Mrs. Erwin he had no license or permit to practice medicine in the state of Indiana, but was, as he testified, practicing under appellant. He used the office and office outfit of appellant, used his horse land buggy, and consulted with appellant about cases he was treating, among which was that of Mrs. Erwin. He paid nothing for the use of the office, horse, and buggy, and consultations. Appellant received no part of the fees and earnings of Dr. Baily, but when medicines and drugs were bought by Dr. Baily he paid for them himself. Dr. Baily called on people and treated them, and was generally known in the community as a practicing physician. A short time after he gave the prescription to Erwin he made application to the state board of medical examiners for a license to practice in this state, which was granted. At the time Dr. Baily wrote the prescription for Erwin he was a graduate and held a diploma of a reputable medical college in Louisville, Ky., which was recognized as such by the state board of medical examiners of the state of Indiana. Appellant testified that he filled the prescription and let Erwin have the whisky in good faith.

Under these facts appellant ought to be relieved from the judgment of conviction, unless the statute is so iron-bound and the law so implacable that the letter of the former will not yield to its spirit, and the rigor of the latter will not bend to the demands of justice and good conscience. It is apparent from the facts that Dr. Baily gave the prescription in good faith, for the benefit of his patient; that appellant filled it in good faith, in the honest belief that it was his duty to do so. The whisky was used by the patient for medicinal purposes, and was administered to her as directed by the prescription. The facts are such as...