CHARLESTOWN.

#### State *v.*Denoon.

Submitted June 17, 1890.

Decided September 12, 1890.

1. Tbial by Court — Evidence.

Where a case is tried by the court in lieu of a jury, it is not reversible error for the court to hear illegal evidence; but in such case the court will simply inquire whether or not, treating the plaintiff in error as a demurrant to the evidence, there is sufficient competent evidence to justify the judgment.

2. Trial by Court — Misdemeanor.

In a misdemeanor case there may be a trial by the court in lieu of a jury when neither party requires a jury.

*140
      *W. Miller*and *N. C. Priekett*for plaintiff' in error,

cited: Const. Art. Ill § 5 ; 22 W. Va. 812; 31 W. Va. 162; Const. Dim. (5th Ed.) 386, 388, 487, 488 ; 9 Midi. 321; 97 Mass: 547; 7 Md. 416; 15 Mich. 408; 19 Am. Eep. 348; 41 Am. Eep. 497 ; 88 Mo. 417; Id. 88 ; 7 West. Eep. 117; 105 Ind. 469 ; 4 Am. & Eng. Ency. Law 870, 871; Code c. 116 §29. ■

*Attorney-General Alfred Caldwell*

cited, Code c. 32.

SNYDER, PRESIDENT :

On August 3, 1889, J. W. Denoon was indicted in the Circuit Court, of Jackson county, (under section 1, c. 32, Code 1887) for selling spirituous liquors without a State license to do so. The case was tried by the court in lieu of a jury, and a judgment entered for the State against the defendant for a fine of ten dollars and costs. All the evidence is certified, from which it appears,, that the State proved three sales of whisky by the defendant to the prosecuting witness J. C. Goodwin, who testified that said sales were made on prescriptions. The defendant then introduced himself as a witness on his own behalf and produced and identified the prescriptions, on which the sales had been made, proved that they had been given by physicians qualified to give them, and that the sales on said prescriptions were the only ones made by him to said Goodwin. The prosecuting attorney, then, on cross-examination, asked the defendant, “if he had, within one year prior to the finding of the indictment, sold spirituous liquors to any other person than-said Goodwin without a prescription ? *”*The defendant objected to answering this question, but the court overruled his objection and required him to answer, and he excepted, and then answered that he had sold to others without a prescription.

The defendant insists that the court erred in requiring him to answer said question for two reasons : *First,*because it was not proper matter for cross-examination, but made the defendant a witness as to independent matter and compelled him to testify against himself; and, *second,*because the question was irrelevant and improper. "Without *141passing upon the first ground we think the question was improper because it was irrelevant. The only proper inquiry before the jury Avas whether the defendant had illegally sold whisky to J. 0. GoodAvin; hut conceding that the court erred in requiring the defendant to answer said question, the defendant is not for that reason necessarily entitled to a reversal of the judgment.

Where a case is tried by the court in lieu of a jury, it is not reversible error for the court to hear illegal evidence, but in such case the court will simply inquire whether or not there is sufficient competent evidence in the record, treating the plaintiff in error as a demurrant to the evidence, to sustain the judgment; and, unless the judgment is plainly erroneous, the appellate court will affirm it. *Nutter*v. *Sydenstricker,*11 W. Va. 535; *Claflin*v. *Steenbock,*18 Gratt. 842.

The defendant here Avas not indicted as a druggist, and he offered no proof that he was a licensed druggist. In the absence of such proof it was wholly immaterial that ho sold the whisky to GoodAvin on a proper prescription, because under the statute no one but a licensed druggist is authorized to sell upon a prescription. But, if it had been shown that the defendant was a licensed druggist, the prescriptions offered in evidence by him would not have justified him in making the sales here complained of, because neither of them is such as the statute requires. The first merely specifies that “the liquor prescribed is strictly for medical purposes and not as a beverage;” the second says : “This is for medicine only, and is not to be used as a beverage ;” and the third is the same as the second. It will be observed that neither of these prescriptions specifies that the liquor is either necessary or absolutely necessary as a medicine. That the words “absolutely necessary” are essential to the validity of such prescription, we have decided at this term in *State*v. *Tetrick, ante*p. 137 (S. E. Rep. 1002).

It is however insisted by the plaintiff' in error, that the judgment should be reversed, because the case was tried by the court in lieu of a jury. This, contention is based on the supposition that section 29, c. 116, Code 1887, is unconstitutional and void. In *State*v. *Griggs, ante*p. *14278 (11 S. E. Rep. 740) this Court unanimously held that said statute is constitutional and valid. This point is, therefore, clearly untenable. Upon any view of this case the judgment of the Circuit Court must be affirmed.

Affirmed.