Case 81 — WARRANT

December 16.

#### Board of Council of Danville v. Forman.

APPEAL PROM BOYLE CIRCUIT COURT.

1. Sale op Intoxicating Liquors — Agreed Facts. — One convicted in tbe police- court for the offense of selling liquor as a druggist without a prescription in violation of a city ordinance, upon appeal to the circuit court was properly found not guilty, where the agreed statement of facts failed to show' when or where the alleged) offense was committed, 'or that any ordinance on the subject was in existence,

2. Statutory Construction — Under the provisions of Sec. 2558 of Ky. Statutes which prohibit druggists from making more than one sale of liquor on any prescription, in a place where local option is in force, one wilL not be permitted if he has a prescription for a certain quantity of liquor to buy and pay for part thereof at one time and part at another.

CHARLES C. FOX, for appellant.

1. Appellee had no right as a druggist to split a prescription for liquor and let thé party have one part at onei time and, another part at another; but he must have a separate prescription for each separate sale, Carrington v. Commonwealth, 78 Ky., 83; Commonwealth v. Day, 15 K. L. R., 456; Ky. Statutes Sec. 3490, Sub-sec. 27.

R. X BRECKENRIDGE, JR., for appellee.

1. The ordinance fixes á penalty for the offense different from that *497fixed by the statute, and is therefore in violation of see. 168 of the Ky. Constitution.

2. The sale as between the appellee and the person, purchasing the liquor was consummated when the prescription was delivered and. ■the appellee promised to' furnish the whisky, and the fact that the purchaser only took part of it at that time and subsequently got the rest, does not make appellee guilty of making more than one sale on the same prescription.

JUDGE HAZEDRIGG

delivered the opinion oe the court.

- Appellee Forman was charged by warrant sworn out before the police court of the city of Danville “with unlawfully selling spirituous liquors, to-wit: Whisky to one Frank Eggleston, said Forman being a druggist and said liquor not. .being sold on the prescription of a physician in said city on the-day of October, 1895, against the ordinance of said. city in such cases made and provided.”

On appeal to the circuit court from a judgment of conviction in the police court he was acquitted, and the Commonwealth has appealed. The agreed facts submitted to the court below are as follows: “It is agreed that the witness, Eggles-ton, would state that he bought of the defendant, Forman, whiskyi three different times on the same prescription, one- or two days apart each time, paying for it each time; and the defendant would deny that he sold Eggleston more than-, twice on the same prescription; the prescription being for one pint and he let witness have one-half of the pint one day and on the following day or day after, the other half, being paid each time for amount taken; that the prescription^ itself will show that it was filled in part at different times and the defendant was a licensed druggist.” .

It is certified that “the above agreed statement of facts-*498was all the evidence Introduced on the trial of the case.” This being true the judgment could not have been otherwise. The plea was not guilty, and there is no argument or proof as to when the alleged offense was committed, and it may have been barred by lapse of time. Moreover, it does not appear in any way where it was committed, whether in or out of the city. Nor is it shown what the ordinances of the city were or indeed that there are any at all on the subject involved; nor do any ordinances appear in any pleading in the case or in the record in any way. (17 A. & E. Ency. of Law, 266.)

It is true certain languages purporting to be ordinances are set out in the briefs of counsel, but of course constitute; no proof upon which the trial court could have based a judgment.

Section 2558 of the Kentucky Statutes makes it the duty of druggists who sell in localities where people have voted against the sale of liquors under what is known as “local option” law, to keep an accurate register of such sales and preserve the prescriptions upon which liquors are sold, and further provides that “only one sale shall be made on any prescription.” If it were shown by agreement or proof that this law had been voted into operation in the city or that an ordinance of a similar character was in force, the state of the case presented as to the sales by Forman to Eggles-ton would seem to come clearly within the provisions of the law; otherwise the patient would only have to provide himself with a prescription for a pint or quart of whisky, and, after calculation pf.how many drinks there were in a given quantity, buy .^nd pay for a drink at a time. There is noth*499ing whatever in the law preventing a sick man from taking the medicine prescribed for him by hist physician on the premises of his druggist, and' in extreme cases it is often important to the patient that he get the speediest possible relief.

If the plan pursued by Forman and Eggleston were permitted generally the drug store in the hands of less scrupulous persons might become a mere dram shop. But as we'have seen, we have no knowledge of the statute indicated or that any ordinance of-similair character is in force in Danville, or that the defendant sold any liquor within the city limits or within twelve months before the institution of the prosecution.

The judgment is affirmed.