Opinion
No. 20151.
Delivered February 1, 1939.
Intoxicating Liquor (Violation of Liquor Laws) — Complaint and Information — "For Medicinal Purposes."
Complaint and information intending to charge defendant, a pharmacist licensed to sell whisky for medicinal purposes under a physician's prescription, with selling whisky to a named person without a prescription therefor being issued by a regularly licensed physician, held fatally defective when failing to allege that such sale was made "for medicinal purposes," such an averment being essential.
Appeal from County Court of Castro County. Hon. K. E. Turner, Judge.
Appeal from conviction for violating the liquor law; penalty, fine of $100.
Judgment reversed, and prosecution ordered dismissed.
The opinion states the case.
Ray Cowsert, of Dimmitt, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
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.