Darsey v. State

124 S.W.2d 380, 136 Tex. Crim. 165, 1939 Tex. Crim. App. LEXIS 64

Opinion

Graves, Judge.

The appellant was charged with a violation of the liquor laws of this State in that as a pharmacist licensed to sell whisky for medicinal purposes under a doctor’s prescription, he had sold whisky to one Woodrow McDermitt, without a prescription therefor being issued by a regularly licensed physician, and upon a trial therefor he was fined the sum of $100.00.

The complaint and information fail to allege that such sale was made “for medicinal purposes.” We have heretofore held in Wilson v. State, 102 S. W. (2d) 1057, that such an averment was essential. To the same effect is the case of Gunn v. State, 109 S. W. (2d) 1056; also Taylor v. State, 110 S. W. (2d) 582, also Smith v. State, 115 S. W. (2d) 668.

This matter was called to the trial court’s attention in a motion in arrest of judgment.

The complaint and information are both defective in that they fail to allege that such whisky was sold “for medicinal purposes” without a proper prescription.

The judgment is reversed and the prosecution ordered dismissed.