State v. Field , 89 Iowa 34 ( 1893 )

Granger, J.

i. Criminal law: jurors: disqnaiYflcation: opinion formed. I. At the impaneling of the jury to try the indictment two of the jurors answered that they had formed opinions as to the guilt or innocence of the accused from what they had heard; that it would require evidence to remove the opinions formed; and one of them said he did not think he could try the case just as fairly and impartially on the evidence and the law “as if he had never heard of the case in the world until he came into the jury box.” Each juror stated that he had not formed an unqualified opinion of the guilt or innocence of the defendant, and made such statements as to show that, while some evidence would be required to change his opinion upon the question of guilt or innocence, yet it was not such an opinion that the district court could not properly conclude that they could render “'a true verdict upon the evidence submitted on the trial.” The opinion'that disqualifies a juror is such a one “as would prevent him from rendering a true verdict upon the evidence submitted on the trial. Code, section 4405, subd. 11. Hence an opinion as to the guilt or innocence of the accused does not necessarily disqualify a juror, even though some evidence would be required to remove it. It must of necessity be, in any case where an opinion is formed, that some evidence would be required to remove it. The statute evidently contemplates the existence of such an opinion as will not prevent a juror from rendering a true verdict, for it requires the court to find whether or not the opinion formed, if any, will prevent such a verdict. We think there was no error in not excluding the jurors. See State v. Bruce, 48 Iowa, 534; State v. Sopher, 70 Iowa, 496; State v. Vatter, 71 Iowa, 558; State v. Munchrath, 78 Iowa, 268.

2. intoxicating liquors: sales aicfphfficum: good'faith* II. The defendant was a physician, and kept a drug store. The evidence shows that people would go to his store and ask for ‘‘red medicine,77 7 which meant whisky, or ‘ ‘white medicine,77 which meant alcohol, and obtain it. A theory of the defense is that whatever was obtained was prescribed by the defendant as medicine. Two witnesses testified that they bought red or white medicine of the defendant, and mixed it with water and drank it. The defendant was a witness in his own behalf, and, after stating the particulars of the sales to the two witnesses, —as that they came saying that they were not well, and what he let them have was as their physician, and as medicine, — he was asked as to each sale to “state whether or not it was done in good faith or otherwise?’7 The questions were each objected to.as immaterial, and the objection sustained. The questions were not immaterial. Their competency is not brought in question in this case. The court, in its instructions, recognized the materiality of good faith in making the prescriptions by the defendant as a physician, and only permitted the defendant to justify the acts of selling on the basis of their being medical prescriptions, made in good faith. But we think the error is not prejudicial, because the testimony sought was several times given as to -sales to other witnesses without objection, and the defendant, in testifying as to prescriptions for one Tokhiem, said: “I did that as a physician, and it was done in good faith.” He then made this general statement: “All the white and red and brown medicine obtained from me was dispensed in the manner I have stated, and that was done by me as a physician in good faith.” It may be stated that there is no fact made more prominent in the testimony of the defendant than that his prescriptions were made in good faith.

3. —: —r: good faith fon'to jury: III. The court instructed the jury thatif they found that the liquor was sold and dispensed by the defendant in good faith, as a physician, to patients sick and under his treatment, to acquit. Complaint is made of the instruction, because it limits the sales to eases of actual sickness; and defendant asked an instruction with the rule so changed as that the sale would be justified if made “to patients who were actually sick, or, whom the doctor in good faith believed to be actually sick.” The law by which licensed physicians are excepted from the operations of the law prohibiting sales of intoxicating liquor, fully sustains the action of the court. Section 2, chapter 35, of Acts of the Twenty-Third General Assembly, is the one in general terms prohibiting such sales, and as to physicians it contains this proviso: “Provided further that this, section shall not be construed to prevent licensed physicians from dispensing in good faith such liquors as medicine to patients actually sick, and under their treatment at the time of such dispensing.” The rule contended for would require us to ingraft upon the proviso a clause evidently not intended, and certainly not within its present letter or spirit. The refusal of the coui-t to give another instruction asked by the defendant is controlled by the same considerations.

The judgment is affirmed.