
    State of Missouri, Appellant, v. J. G. Scott, Respondent.
    Kansas City Court of Appeals,
    January 25, 1886.
    Criminal Law — Indictment Against Physician. — Section 5176, Revised Statutes, having been repealed by the act of 1881, (Laws of 1881, p. 180) relating to sale of liquors, it was not an offence, since said repeal, for a physician to issue a prescription for. intoxicating liquor in less quantities than one gallon, to be used as a beverage*
    Appeal from Mercer Circuit Court, Hon. C. M. Wright, Special Judge.
    
      Affirmed.
    
    The case is sufficiently stated in the opinion of the court.
    B. G. Boone, Attorney General, Emmet Philips and M. A. Fyke, for the appellant.
    I. The offence is charged to have been committed on September 20, 1883. The defendant demurred to the indictment upon the ground that it charged no offence. The demurrer was sustained and the slate appealed.
    II. The statute charged to have been violated is 5476, Revised Statutes. It is claimed that this was repealed by the act of 1881 (Laws 1881, p. 130). There is no provision in that act in conflict with this section, and if repealed it is repealed by implication. Such, repeals are not favored and will not be so construed unless both ■cannot stand together. See dissenting opinion of Judge Norton, in State v. Holler, 77 Mo. 130.
    III. The act of 1883 provides that no"druggist shall-sell liquor except on a written prescription from a physician. Now, if section- 5476 is repealed, there is no limit upon physicians issuing prescriptions for liquor as a beverage, so that it is to not be filled at a drug store owned by the physician giving it. It could not, therefore, have been the intention of the legislature to repeal this section.
    H. J. Allen and M. F. Robinson, for the respondent.
    Section 5476, Revised Statutes, was repealed by act ■of March 26, 1881 {State v. Roller, 77 Mo. 120), and was not re-enacted in the act of March 29, 1883. Hence, the indictment charged no offence known to the law, and was properly quashed.
   Ellison, J.

The respondent was indicted for issuing fraudulent prescriptions, under section 5476, chapter 100, Revised Statutes, following acts of May 19, 1879. At the trial term the indictment was quashed on motion of respondent, for not charging an offence, and the state appealed.

Chapter 100, Revised Statutes, pages 1075-6, being the act of May 19, 1879 (Laws 1879, page 165), was repealed by act of March 26, 1881 (Laws 1881, page 130). State v. Roller, 77 Mo. 120. The act of March 29, 1883, (Laws 1883, page 89), did not re-enact section 5476, Revised Statutes, therefore, at the time charged in the indictment it was not an offence for a physician to issue a prescription for intoxicating liquor in less quantities than one gallon, to be used as a beverage.

The trial court’s action in quashing the indictment was correct-and its judgment is affirmed.

The other judges concur.  