majority">Smith, P. J. —

The defendant was indicted, tried and convicted for the violation of section 4621, Revised Statutes. It appears from the undisputed evidence that he was not only a registered and practicing physician, but also a registered pharmacist, owning and operating a drug store. It further appears that he sold *231fifteen bottles of beer on a written prescription signed by himself and which complied in form with the requirements of said section 4621. The prescription was made out before the beer was delivered. It was preserved as required by section 4622, Revised Statutes, and produced in evidence at the trial.

It is quite clearly disclosed by the evidence that the beer was' not prescribed as a necessary remedy and that the prescription to that effect was but a false pretense. The court declared on its own motion to the jury that the prescription was no prescription and was of no force or effect whatever. Section 4621, on which the indictment was based, is inapplicable to a case of this kind. The defendant, in his quality as physician,' issued the prescription, and in that of druggist filled it. In such case his good faith was not the subject of inquiry. The prescription was a complete defense to prosecution under an indictment based in said section 4621.

The offense shown by the evidence is that comprehended by section 4623, and-for a violation of that section the defendant should have been indicted and prosecuted. State v. Hale, 72 Mo. App. 78; State v. Carnahan, 63 Mo. App. 244.

It follows from these observations that the trial court erred in excluding by its instruction the prescription introduced in evidence. The defendant was indicted under the wrong section of the statute and it therefore results that the judgment must be reversed.

All concur.

Citation profile

Relationships

How this case has been treated — in progress