The State v. Pence
| Decision Date | 29 October 1909 |
| Docket Number | 21,427 |
| Citation | 89 N.E. 488,173 Ind. 99 |
| Parties | The State of Indiana v. Pence |
| Court | Indiana Supreme Court |
From Henry Circuit Court; J. W. Macy, Special Judge.
Prosecution by The State of Indiana against William M. Pence. From a judgment for defendant, the State appeals.
Affirmed.
James Bingham, Attorney-General, A. G. Cavins, E. M. White, W. H Thompson and George M. Barnard, Prosecuting Attorney, for the State.
Forkner & Forkner, for appellee.
Appellee, a druggist, was charged by indictment, in two counts, with having made a sale of whisky without license. The first count alleged that the sale was not made for medicinal, industrial or scientific purposes, and the second, that the purchaser was not a person known to appellee not to be in the habit of using liquors as a beverage. The State's demurrer to a plea in abatement of the indictment was overruled, and, the State declining to plead further, appellee was discharged.
The correctness of the ruling upon demurrer is the only question presented for our decision.
The plea in abatement alleged facts in detail, showing, in substance, that, after repeated refusals so to do, appellee was required, by order of the circuit court, to produce and deliver to the grand jury of the county, within a prescribed time, all applications made to him by persons desiring to purchase liquors, upon which sales were made by him, for the use of said grand jury in investigating alleged illegal sales of liquor made by him as a druggist, in violation of what is commonly known as the blind tiger law; that he did deliver such applications to said jury involuntarily, and only because he was coerced so to do by the order and judgment of the circuit court, and to avoid threatened arrest and imprisonment, and disgrace to himself and family; that the indictment in this cause was based wholly upon the applications delivered by him to said grand jury under duress as aforesaid, and without any other evidence of any kind or character, and that the indictment was not found or returned upon any knowledge of any member of the grand jury or any officer thereof, or upon any evidence or information given by defendant to the grand jury.
This prosecution was founded upon the act of March 16, 1907 (Acts 1907, p. 689, §§ 1, 2, §§ 8351, 8352 Burns 1908).
It is provided by section one of said act:
"That any person not being licensed under the laws of the State of Indiana who shall sell * * * any spirituous * * * liquors except as herein provided," shall be guilty of a misdemeanor, "provided, that none of the provisions of this section shall apply to any druggist or pharmacist who is licensed as such by the State Board of Pharmacy."
Section two provides:
It is further provided that any person violating the provisions of the act shall be punished by a fine, and for a second offense the license of the druggist or pharmacist shall be revoked; and any person making any false or misleading statement touching the purpose for which such liquor is purchased, or who shall use the same as a beverage, shall be fined, and for a second offense shall be imprisoned in the county jail.
The contention in this case arises from differing views as to the legislative purpose in requiring the preservation of such written prescriptions and applications for liquors. The Attorney-General argues that under the law these papers when filed become public documents, and are preserved wholly for the use and benefit of the public, while counsel for appellee insist that they are private papers, the production of which for use as evidence cannot be enforced in a criminal proceeding against the druggist charged with their custody.
In our opinion, it was not the intent of the legislature to deprive druggists and pharmacists of their proprietary interest and privacy in such papers, and that it has not done so. No sales of intoxicating liquors by a druggist or pharmacist are authorized except for specified uses, and then only upon compliance with the numerous restrictions and limitations of this act. If an illegitimate sale of liquor be made by a druggist or pharmacist, the fact and consequence are likely soon to become manifest, and prosecution, if any, be instituted within one year. If the prosecution be directed against the seller, his justification for the sale must, in large measure, appear in writing made at the time and preserved by himself. If the prosecution be against the purchaser for misrepresentation, or for misuse of the liquor, the writing may be available for the use of the State in proving the offense charged. In either case the evils resulting from a resort to uncertain and treacherous memories, and the commission of perjury, are obviated.
Numerous cases from other states have been cited, wherein the use of similar papers and records as evidence has been enforced and justified, but in every instance the statute providing for their preservation in express terms subjected them either to the custody or inspection of police and public officials.
The statute of Massachusetts upon this subject reads as follows: "The book, certificates and prescriptions before provided for, or referred to, shall at all times be open, in the city of Boston to the inspection of the board of police, and in all cities and towns of the commonwealth to the inspection of the mayor and aldermen, board of license commissioners, selectmen, overseers of the poor, sheriff, constables, police officers and justices of the peace." Acts 1887 (Mass.), chap. 432, § 4.
In Michigan, every druggist is required on Monday to make detailed weekly reports of sales of liquor, and to deliver or mail such report "to the prosecuting attorney of the county where such store is situated, who shall preserve the same in his office, and all such statements shall be open to inspection to all citizens." Acts 1899 (Mich.), p. 280, § 25. The statutes of Kansas and North Dakota require druggists to keep a daily record of sales, and provide that "such record and affidavits shall be open for the inspection of...
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