State v. Atkinson

The opinion of the court was delivered by Mr. Justice McIver.

The defendant having been convicted *106 under an indictment charging that he, “being a physician, unlawfully did give a prescription for spirituous or intoxicating liquors, to wit, one dozen bottles of beer, to one II. Moultrie Bratton, he, the said Dennis C. Atkinson, not then and there being in actual bona ficle attendance upon the said R. Moultrie Bratton as a patient,” appeals upon numerous grounds set out in the record, which are too long to be inserted here. Indeed, it is scarcely necessary to consider them in detail; for, although numerous and encumbered with unnecessary statement, they really present but few questions for us to determine, and these we will proceed to consider.

The first and fourth grounds, imputing error to the Circuit Judge in refusing a motion for continuance, certainly cannot be sustained in the face of an unbroken line of decisions, for a great length of time, that such a motion is addressed to the discretion of the Circuit Judge.

The second ground alleges error in refusing defendant’s motion to quash the indictment, upon the ground that it contained two counts, in one of which defendant was charged with unlawfully giving a prescription to one person, and in the other to another person. A conclusive answer to this ground is, that the “Case,” as prepared for argument here, does not show that any such motion was made to the Circuit Judge, or that he made any ruling on that subject. We have so often had occasion to say, that this court can consider nothing which, does not appear in the “Case,” that surely it cannot be necessary, at this late day, to repeat the reasons for such a determination. We may add, however, that it does appear in the “Case,” that before the trial commenced the solicitor entered a nolle prosequi as to the first count, and hence, even if it had appeared that such motion had been made, it certainly could not have been sustained, as the indictment upon which the defendant was tried and convicted really contained but one count. The same remarks apply to the third ground of appeal.

The fifth, tenth, and eleventh grounds impute error to the Circuit Judge in allowing witnesses to be asked as to the number of prescriptions given by defendant, within a specified time, for intoxicating liquors to various persons, as found on the files of the druggist in whose store the defendant kept his office. It seems *107 to us that such testimony was clearly competent where the real issue was, as in this case, whether the defendant had bona fide given the prescription, upon which the indictment ivas based, to the person therein named, as a patient upon whom he was actually attending as a physician, or whether the whole thing was not pretensive, and a mere device to evade the law. If the fact was, as testified to by some of the witnesses, that the defendant had given a very large number of such prescriptions to various persons, who happened to be in town on a public occasion, all to be filled at that drug store, it was certainly very pertinent to the main issue, as to whether the prescription was given in good faith, or with a view to evade the law prohibiting the sale of intoxicating liquors.

The sixth, eighth, and fourteenth grounds seem to impute error to the Circuit Judge, not in intimating his opinion to the jury in his charge, but in taking the cross-examination of several of the witnesses out of the hands of the solicitor and conducting it himself in such a way as to prejudice the defendant, as it is alleged. While such a course on the part of a Circuit Judge is, perhaps, unusual, and possibly not to be commended, we know of no law which forbids it, and, therefore, we cannot say that there urns any error of law in this respect; and to that we are confined in cases of this kind.

The seventh and ninth grounds allege error in the remark made by the Circuit Judge to two of the witnesses, that their responses to certain questions — “I don’t remember” — would not do. Whether such a remark would be appropriate or not depends largely upon the nature of the question to which such a response wms made. We can easily conceive of a case in which such a response would so manifestly indicate a purpose on the part of a witness to evade a truthful answer, that it might be proper, and certainly not illegal, for the judge to require a more direct answer, just as if a witness should decline to answer at all. But be this as it may, the mode of conducting a trial must necessarily be left largely to the discretion of the Circuit Judge, and we cannot say that there was any such abuse of discretion in this case as would warrant this court in interfering.

The twelfth ground is based upon the idea that the testimony of Mr. Hart, when recalled, was not in reply to any testimony *108 adduced by the defence. This is a mistake. Testimony had been offered on the part of the defence, or rather in the cross-examination of defendant’s witnesses, the number of prescriptions given by defendant within the time specified had been mentioned, and Mr. Hart was called in reply for the purpose of showing that the number was larger than that mentioned by defendant.

The thirteenth ground relates to an outside matter which does not seem pertinent to the present case. It is based upon an inquiry addressed by the Circuit Judge to Mr. Hart, who it seems was acting as intendant of the town at the time, as to why the town council had not prosecuted the druggist, Roumillat, for selling Avhiskey without a license, and Avas a matter not relevant to the case under consideration.

The fifteenth ground complains that the judge erred in charging the jury upon the facts, in violation of the constitutional provision upon that subject. We do not think .that this ground can be sustained, for the part of the charge in which it is claimed that the Circuit Judge violated the constitutional provision, seems to be nothing more than a statement of the particular issues of fact Avhich the jury should pass upon, together with such testimony as threA? light upon such issues.

The sixteenth, seventeenth, and eighteenth grounds of appeal may be summarily disposed of by the statement that it does not appear that any such motions as constitute the basis of those grounds were ever submitted to, or passed upon, by the Circuit Judge. It is true that it does appear that notice of a motion for a new trial was given, upon the ground of improper conduct on the part of the jury, based upon certain affidavits set out in the “Case,” but it does not appear whether any, and if so, what, action was taken under said notice. On the contrary, it does appear that these affidavits are folloAved by a consent order, modifying the sentence upon certain conditions therein named, and the natural inference would be that, upon obtaining the order modifying the. sentence, the motion for a new trial Avas abandoned. But be that as it may, it is sufficient for us to say that this court cannot be expected to revieAV any action of the Circuit Court where the “Case,” as prepared for argument here, fails to *109 show what such action was. We may say, however, that even if these motions were properly before us, we do not think they could be sustained.

The nineteenth and twentieth grounds of appeal are based upon the refusal of certain alleged requests to charge, but as the “Case” fails to show that any such requests were submitted to the Circuit Judge, it is very manifest that these grounds cannot, for that reason, be sustained. While the “Case” does show that “the requests to charge are not allowed,” it entirely fails to show what the requests were. The fact that the nature of such requests do appear in the exceptions or grounds of appeal, cannot help the matter; for, as has been frequently held, this court cannot act upon any statement which appears only in the exceptions or grounds of appeal, for the very obvious reason that while the “Case” is open to amendment, the exceptions are entirely under the control of the appellant, who may frame them in such terms as to him may seem best, and the respondent has no means of correcting any erroneous statements that may be made therein. It is therefore very manifest that it would be unsafe, and might result in great injustice, for this court to act upon any statement found only in the exceptions, and we have invariably declined to do so, except where such statement is admitted to be correct.

But while this is the well settled rule, from which we have no disposition to depart, because we are satisfied that it is generally most conducive to the ends of justice, yet we desire to say, in this particular case, that even if the rule should be disregarded, these two grounds of appeal could not be sustained. Even if it should be conceded that his honor refused to charge, as requested, “that Yorkville not being a local option town, city, or village, they could not find the defendant guilty under the indictment,” we do not think there would have been any error in such refusal. Such request was based upon the terms of section 1749 of the General Statutes of 1882, as they stood prior to the amendment introduced by the act of 1884 (18 Stat., 694), and ignored entirely the effect of that amendment. The section as it originally read was as follows : “This chapter shall not apply to any city, town, or village in which the sale of ardent spirits is now or shall hereafter be prohibited by legislative enactment,” and as *110 such sale had been prohibited in the town of Yorkville by legislative enactment (act of 1882, 17 Stat., 946), and as section 1751, under which defendant was indicted, is found in that chapter, there might have been great force in the argument that the section under which defendant was indicted did not apply to the town of Yorkville, as it was not a local option town, but was a town in which the sale of ardent spirits was prohibited by legislative enactment.

But it appears that the legislature, doubtless with a view to remedy this defect in their legislation, passed tbe act of 1884 (18 Stat., 694), amending section 1749 of the General Statutes, so that it should thereafter read as follows: “Sections 1746, 1747, and 1748 of this chapter shall not apply to any city, town, or village in which the sale of ardent spirits is now or shall hereafter be prohibited by legislative enactment.” So that all of the provisions of the chapter, except those contained in the three sections above mentioned, which relate only .to local option, apply as well to towns in which the sale of spirituous liquors is prohibited by legislative enactment as to those towns in which it is prohibited under the provisions of the local option law. It is clear, therefore, that section 1751, found in that chapter as it now reads, and as it read at the time the offence charged against defendant was committed, applies to the town of Yorkville, notwithstanding the fact that it is not a local option town.

The twentieth ground of appeal could not be sustained, even if it had appeared that the request to charge therein referred to had been made and refused. It is based upon the theory that a person could not be convicted, or rather could not be punished, unless it wTas shown that he had violated both sections 1750 and 1751 of the General Statutes of 1882. It is true that the language of section 1752, fixing the punishment for violation of these sections, is not as clear and distinct as it might have been; but we think the intent of the legislature is sufficiently obvious. The language of section 1752 is as follows: “Any person violating sections 1750 and 1751 of this chapter shall, upon conviction, be fined,” &c., and the argument is that the punishment tnere prescribed cannot be imposed unless a person is charged with, and convicted of, having violated both of those sections. But as *111 it appears plainly that those two sections relate to two entirely distinct and different things, and refer to two distinct classes of persons — the former forbidding druggists from selling except upon the prescription of a regular practising physician, and the latter forbidding physicians from giving prescriptions for spirituous liquors “except when actually in Iona fide attendance upon a patient,” it is .very obvious that the legislature intended to provide for thepunishment of two distinct and different offences, either of which might be committed independently of the other. The ■phraseology used in section 1752 is an awkward attempt to avoid unnecessary repetition of words, and manifestly means the same thing as if the legislature had said: “Any person violating section 1750 and any person violating section 1751 of this chapter, shall, upon conviction, be fined,” &c.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.