The State v. Summers

• Court: Missouri Supreme Court
• Writing for the Court: Sherwood, J.
• Citation: The State v. Summers, 44 S.W. 797, 142 Mo. 586 (Mo. 1898)
• Decision Date: 16 February 1898
• Parties: The State v. Summers, Appellant

44 S.W. 797

142 Mo. 586

The State v. Summers, Appellant

Supreme Court of Missouri, Second Division

February 16, 1898

Transferred from Kansas City Court of Appeals.

Judgment of circuit court affirmed.

John Kennish, Ivan Blair, J. W. Stokes and E. J. Kellogg for appellant.

(1) The "act to regulate the sale of medicines and poisons by druggists and pharmacists" (Laws of Missouri, 1881, p 130) and the amendment thereto (Laws of Missouri 1883, p. 89) were intended to "regulate the whole subject of the sale of intoxicating liquors by druggists." The defendant sold the liquor as medicine, being a regularly licensed druggist, and only upon the prescription of a regularly licensed and practicing physician, and is not amenable to the law relating to adulterations. State v. Roller, 77 Mo. 120; State v. Hughes, 35 Mo.App. 515; State v. McAnally, 66 Mo.App. 329; State v. Piper, 41 Mo.App. 160. (2) Section 5472, Revised Statutes 1879 expressly placed druggists under the general law as to the sale of intoxicating liquors, and there was no provision in the druggist law concerning the adulteration of intoxicating liquors prior to the act of 1881, but in said act of 1881 (Laws 1881, p. 130), the provision placing druggists under general law as to the sale of liquors is omitted and a new section is added, section 7 making it a misdemeanor to adulterate the drugs and medicines sold by such druggist, thus showing plainly an intention to make the provisions of the druggist law cover all the ground both as to sales and adulteration of intoxicating liquors, by druggists and pharmacists, without reference to other statutes. State v. Ferguson, 72 Mo. 297. (3) The laws embodied in the criminal code relating to the adulteration of liquors, Revised Statutes 1889, sections 3890 to 3893, are copied from chapter 73, General Statutes 1865. The adulteration of liquor by that law was a felony, punishable by imprisonment in the penitentiary for a term not exceeding five years. R. S. 1879, sec. 1600. But adulteration by a druggist is a misdemeanor, the penalty being a fine not exceeding $ 100 and the striking of the druggist's name from the register. R. S. 1889, sec. 4616. The penalty for selling or giving away intoxicating liquor of any kind except on the written prescription of a regularly registered and practicing physician, is a fine not less than $ 100 nor more than $ 500 (R. S. 1889, sec. 4621), and so the various sections of the law prescribe various and different penalties, none of which conform to those against the liquor sellers. The druggist is not a liquor seller; any spirituous liquor he may sell on prescription is furnished as a drug. He can sell only under the provisions of the pharmacy acts. No restrictions imposed by other acts have any application to them. State v. Roller, 77 Mo. 129; State v. Hughes, 35 Mo.App. 515.

W. E. Stubbs and H. B. Williams for respondent.

(1) The selling of liquor in violation of law is the gravamen of the offense. To make the selling lawful, it was incumbent on the defendant to comply with the requisitions of the law. His appearance before the county court clerk, taking and subscribing the oath, and giving bond, were all essential prerequisites. The omission to do either of the acts specified in section 3890, Revised Statutes of Missouri 1889, is sufficient to constitute an offense against the law. State v. Crowley, 37 Mo. 369; State v. William Fox, 37 Mo. 374; State v. Finn, 38 Mo. 504. (2) The law under consideration exempts no one whomsoever from its penal provisions, except upon the performance of the conditions which it prescribes. State v. Ferguson, 72 Mo. 297; State v. Finn, 38 Mo. 504. (3) It has been expressly decided by the Supreme Court that the sections in question apply as a condition precedent to the right to sell liquor by anyone, whether druggist, physician, merchant or dramshop keeper. State v. Goff, 65 Mo. 498; State v. Crowley, 37 Mo. 369; State v. Ferguson, 72 Mo. 297. (4) There has been at no time since such enactment any law passed by the legislature of this State repealing or modifying the same, and it is the law on our statute books to-day. R. S. 1889, sec. 3890; State v. Crowley, 37 Mo. 369. (5) Even although a section of the statute may be modified in part, it will not operate as a repeal thereof. Also the sections of a former statute, being separated and scattered by a revision, are still to have the same construction as before. Creason v. Railroad, 17 Mo. 111; Sedgwick on Stat. Con., p. 229; Hughes v. Farrer, 45 Me. 72; Burnham v. Stephens, 33 N.H. 247; Onerfield v. Sutton, 1 Metc. (Ky.) 621; Smith v. Smith, 19 Wis. 522; Cape Girardeau v. Philip Riley et al., 52 Mo. 424; R. S. 1889, sec. 6607. (6) When a former provision is contained in a revised law it operates only as a continuance of its existence and not as an original act. State ex rel v. Heidorn, 74 Mo. 410.

OPINION

Sherwood, J.

For selling liquor without first having taken oath and given bond, defendant was indicted, and on trial had was convicted, of the offense prohibited in sections 3890 and 3892, Revised Statutes 1889.

The indictment, in its charging part, is the following: "That Bud Summers, on or about the 25th day of December, 1896, at the county of Holt and State of Missouri, unlawfully did sell certain spirituous liquors, to wit, one pint of whiskey, one pint of brandy, one pint of beer, one pint of rum, without first having appeared before the county court clerk of said Holt county and taking and subscribing an oath not to mix or adulterate with any substance whatever the liquors by him offered for sale, and without and before giving bond in the sum of five hundred dollars, with good and sufficient security, as required by law, for the payment of all costs arising from prosecutions for violations of the provisions of chapter 47, article 8, Revised Statutes of Missouri of 1889, in relation to adulteration and sale of intoxicating liquors against the peace and dignity of the State."

The trial was had before the court on an agreed statement of facts as follows: "That at the time charged in said indictment, to wit, on the 25th day of December, 1896, the defendant, Bud Summers, was a regularly licensed and registered druggist and pharmacist, doing business in the town of Maitland, Holt county, Missouri, under a merchant's license issued to him on the day of , 189-, and that he was during all that time a registered pharmacist and druggist, having fully complied with the acts of the legislature in this State applicable thereto, and that the said defendant sold spirituous liquors at his drug store in Holt county on the date mentioned in the indictment, to wit, on the 25th day of December, 1896, and in quantity less than four gallons, viz., one pint of whisky, that such sale was made upon the written prescription of a regularly registered and licensed physician, and that the prescription was filled by the defendant at his said drug store as required by law. It is further agreed that the defendant did not, before the 25th day of December, 1896, make and file the affidavit and bond not to adulterate liquors, as is required by sections 3890 and 3892 of the Revised Statutes of Missouri of 1889." Upon these facts appearing, the trial court found defendant guilty as charged, and fined him in the sum of $ 50, as provided in section 3893, Revised Statute supra.

These statute provisions had their origin in an act entitled "An act to prevent the adulteration of spirituous liquors," Session Acts 1861, page 92, containing sections 1 to 13, which so far as necessary to quote are as follow:

"Sec 1. That the adulteration of spirituous or vinous liquors, by the use of strychnine, or other poisonous liquids or ingredients, shall be, and the same is hereby declared a felony.

"Sec. 2. That any person who shall in this State be guilty of the offense of adulterating spirituous or vinous liquors, or selling the same, knowing it to be adulterated by or with strychnine or other poisonous liquids or ingredients, upon conviction in any of the criminal or circuit courts of this State, shall be imprisoned in the penitentiary of this State not less than two years nor more than five years.

"Sec. 3. That anyone who shall be guilty of selling to any person in this State, by retail or wholesale, any spirituous or vinous liquors, adulterated as stated in the two preceding sections of this act, knowing the same to be so adulterated, shall incur all the penalties annexed to the second section of this act.

"Sec. 4. That it shall not be lawful for any person or persons to sell, or offer to sell, any spirituous or alcoholic liquors within this State, until he, she, or they shall first appear before the county court clerk of the county where such liquors are to be sold or offered for sale, and take and subscribe to an oath not to mix or adulterate, with any substance whatever, the liquors offered for sale; and give bond in the sum of five hundred dollars, with good and sufficient security, for the payment of all costs arising from prosecutions for violations of the provisions of this act.

"Sec. 5. That it shall not be lawful for any person or persons to manufacture or rectify any spirituous or alcoholic liquors within the limits of this State until he, she, or they shall first appear before the county court clerk of the county where such liquors are proposed to be manufactured or rectified, and take and subscribe to an oath not to adulterate, or suffer to be adulterated, any liquors manufactured or rectified by themselves or agents.

"Sec 6. That the provisions of this act shall not be so construed as to prevent druggists, physicians, or persons engaged in the mechanical arts, from mixing and adulterating liquors for medicinal or...