Chew v. State

43 Ark. 361

• Court: Supreme Court of Arkansas
• Decided: November 15, 1884
• Status: Published

Opinion

Smith, J.

The appellant was charged with retailing whisky without a license. The prosecution was begun by information filed by the Prosecuting Attorney before a Justice of the Peace, under the Act of March 1, 1883. He was convicted there, and again on appeal to the Circuit Court, and was fined $200. The case was tried upon an agreed statement of ia'cts, in substance as follows :

The County had, on the 10th of December, 1883, prohibited the sale of intoxicating liquors within three miles of the Presbyterian Church at El Dorado, in accordance with the prayer of a petition signed by a majority of the adult inhabitants residing within said limits. At the January Term, 1884, the defendant, who is a druggist in the town of El Dorado, applied to the County Court fora license to sell whisky in said town, exhibiting the collector’s receipt for the State and County taxes; and his petition was rejected. The defendant after this did sell one Armstrong in said town a pint of whiskey upon the certificate of Dr. Goodwin, a practising physician, that it was necessary for Armstrong. Dr. Goodwin is a partner of the defendant in the drug business and he had previously filed with the County Clerk the affidavit required by law to authorize him to prescribe alcoholic liquors in cases of sickness.

The jury were instructed in effect that if Chew sold the liquor without license, he was guilty and that the law made no reservation in favor of druggists. And the court rejected prayers for directions based upon the ideas that he was protected, by the physician’s certificate and upon the absence of any intention on his part to violate the law.

1. Liquor: ofN»s,¥ewith In this State no one can lawfully sell intoxicating liquors . - J ° u without first procuring a license from the County Court his County. A druggist cannot sell them without license as medicine upon the prescription of a physician. Wards v. State, 36 Ark., 36; Flower v. State, 39 Id., 209; State v. Butcher, 40 Id., 362.

non district And where the local option law has once been put in force w£thin a given territory, the County Court is powerless for the space of two years to grant a license to any one to sell liquors within the same territory. Act of Feb. 20, 1883, amendatory of the Three Mile law, sec. 1; Wilson v. State, 35 Ark., 414; Blackwell v. State, 36 Id.. 178.

A regular practising physician may, however, under the third section of the Act. of March 21, 1881, prescribe and administer alcoholic stimulants to his patients, as he would chloroform or morphine.

m ay cense or local option aotIt is contended, however, that the prosecution should have been for a violation of the provisions of the Three Mile law J and not for selling without a license which it was impossible to obtain. Such was the view taken by this court in Debois v. State, 34 Ark., 381; State v. Orton, 41 Id., 305; State v. Cathey, Ib., 308 and perhaps other cases. But the third section of the Act of March 26,1883, amendatory of the License Law, contains a drag net proviso that the penalties imposed by any special Act forbidding the salé of liquors in particular localities shall be merely cumulative of the penalties imposed by the License Act, and that the License Act shall apply to the territory embraced in the Three Mile law and all special Acts and that a party may be proceeded against under either Act.

Affirmed.