Commonwealth v. Prickett , 25 W.N.C. 422 ( 1890 )

Opinion,

Mr. Chief Justice Paxson :

The defendant was convicted upon the first, second and third counts of the indictment. The first count charged him generally with selling liquor without a license; the second, with selling as a druggist without a written prescription of a regularly registered physician; while the third charged him with selling more than once upon the same prescription. The defendant was sentenced to pay a fine of $500, and to undergo an imprisonment of three months in the county jail, under the first paragraph of the fifteenth section of the act of 1887, which prescribes the punishment for selling liquor without a license; whereas, he contends that his sentence should have been under the second paragraph of said section, which provides that “ any person having license who shall hereafter be convicted of violating any of the provisions of the license laws shall be subjected to a fine of not less than one hundred, nor more than five hundred dollars,” etc. It was contended that the defendant, being a druggist, must be treated as a licensed person, and for an unlawful sale must be punished, as before stated, under the second paragraph of section fifteen.

But druggists, strictly speaking, are not licensed. They are not required to take out a license; they may sell in the manner indicated in the act, and, if charged with selling liquor unlawfully, can only defend by showing that the sale was upon a physician’s prescription. We are not called upon to discuss this question, much less to decide it, as it is not raised by the record. It is a rule, almost as old as the common law, that if there is one count in the indictment which will sustain the sentence, it cannot be reversed. The first count, as before stated, is for selling liquor, generally, without a license; and it is conceded that for this offence the appropriate sentence was imposed. There is not a word of the evidence here ; we have nothing but the record, and that sustains the judgment. The opinion of the court was relied upon as showing the facts of the case, but the opinion is no part of the record, and is not properly before us. Even if it were here legally, it would not avail the defendant, as it only shows what no one disputes, and what appears by the indictment itself, that he was indicted as a druggist. But it also shows, and the first count thereof distinctly charges him with the sale of liquor generally without a license. He was convicted upon this count, and we cannot assume, in the absence of the testimony, that he was convicted without evidence. In view of the manner in which the case is presented, there is but one thing we can possibly do, and that is to affirm the judgment.

The judgment is affirmed, and it is now ordered that Frank Prickett, the appellant, surrender himself forthwith to the custody of the keeper of the Montgomery county prison, there to serve out the sentence imposed upon him by the court below.