Williams v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: Brooks
• Citation: Williams v. State, 81 S.W. 1209, 10 Tex. Ct. Rep. 979 (Tex. Crim. App. 1904)
• Decision Date: 25 June 1904
• Parties: WILLIAMS v. STATE.

81 S.W. 1209

WILLIAMS v. STATE.

Court of Criminal Appeals of Texas.

June 25, 1904.

Appeal from Smith County Court; S. A. Lindsey, Judge.

Dr. J. W. Williams appeals from a conviction of violating the local option law. Reversed.

Geo. W. Cross, for appellant. Howard Martin, Asst. Atty. Gen., and W. A. Hanson, Co. Atty., for the State.

BROOKS, J.

Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $25, and 20 days' confinement in the county jail. The indictment charged appellant, in the usual form, with selling intoxicating liquors in Smith county after such sale had been prohibited in said county. The facts show that the doctor gave an illegal prescription, upon which the sale was made. He was not interested in the saloon, and did nothing more in furtherance of the sale than the mere giving of the prescription which procured it. But the state's insistence is that he is guilty of a sale by virtue of having given an illegal prescription. Under some expressions in Stephens' Case (Tex. Cr. App.) 73 S. W. 1056, and McLain's Case, 43 Tex. Cr. R. 213, 64 S. W. 865, this was a proper way of prosecuting appellant. But the real point in the Stephens Case, supra, was that there must be a sale, before the doctor would be guilty for giving the illegal prescription. However, upon a more mature consideration of the Stephens and McLain Cases, supra, and in view of the variant views on the question of indictment, we have reviewed the authorities, and now hold that the indictment in this case is defective, when applied to the facts intended to be covered by this prosecution. In order to eliminate any doubt as to what is a good indictment, under the laws of this state, against a doctor, for giving an illegal prescription, we lay down the following as a proper form: Use the form under article 403, § 681, White's Ann. Pen. Code. Follow this form down to asterisks, and allege as follows: "John Doe, who was then and there a practicing physician, did unlawfully give a prescription to be used in obtaining and purchasing intoxicating liquors in said county, to Richard Roe; and the said John Doe did then and there by said means sell and cause to be sold intoxicating liquor to the said Richard Roe, who was then and there not actually sick, and without a personal examination of the said Richard Roe; and the said Richard Roe did then and there, by virtue of said prescription, obtain and purchase from John Jones said intoxicating liquor in said county; and the said John Jones did then and there sell said intoxicating liquor to said Richard Roe, in said county, on account and by virtue of said prescription; and the said John Doe well knew at the time he gave said prescription to the said Richard Roe that he was not then actually sick, and that he had not been personally examined by the said John Doe for the purpose of ascertaining...