Weatherford v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: Henderson
• Citation: Weatherford v. State, 102 S.W. 1146, 51 Tex. Cr. R. 447 (Tex. Crim. App. 1907)
• Decision Date: 15 May 1907
• Parties: WEATHERFORD v. STATE.

Page 1146

102 S.W. 1146

WEATHERFORD v. STATE.

Court of Criminal Appeals of Texas.

May 15, 1907.

Appeal from Hunt County Court; J. W. Manning, Judge.

S. H. Weatherford was convicted of violating the local option law, and he appeals. Affirmed.

F. J. McCord, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted for violating the local option law, and prosecutes this appeal.

Appellant complains of the charge of the court, and at the refusal of the court to give several requested special instructions. The charge of the court here is substantially as follows: "If the jury believe that appellant was a practicing physician, and gave a prescription to Horace Hickman," etc., "and that said Hickman was not then and there actually sick, or that the said appellant did not make a personal examination of said Horace Hickman, and said Hickman obtained intoxicating liquors on said prescription," etc. And, again, the court charged on this subject: "If you believe from the evidence that Horace Hickman was actually sick at the time the defendant gave him the prescription, if he did give such prescription, yet, if you believe from the evidence that defendant failed to make a personal examination of said Horace Hickman at said time, then and in that event you will find him guilty," etc.; "but if you do not so believe, beyond a reasonable doubt, you will acquit him." In Williams v. State, 81 S. W. 1209, 10 Tex. Ct. Rep. 979, we laid down a form of indictment in this character of case, and in said case we further reversed our former holding; that is, we formerly held that the state must prove that a doctor not only knew the applicant was not actually sick, but the state must prove also that he gave the prescription without a personal examination. We laid down the rule that it was sufficient if the state proved either; that is, that the doctor knew the applicant was not sick, or that if he gave a prescription without a personal examination, and a sale was obtained upon such prescription, in either event he would be guilty of a violation of the law. So it would appear that the charge here given by the court was not in accord with the Williams Case. The court told the jury here, if they believe the applicant was not actually sick at the time appellant gave the prescription, to convict him; whereas, the Williams Case required the defendant to know at the time he gave the prescription that the applicant was not sick.

Defendant, besides objecting to this...