
    ALBERT MAYER, PLAINTIFF IN ERROR, v. THE STATE, DEFENDANT IN ERROR.
    Submitted December 5, 1898
    Decided February 27, 1899.
    1. Correct criminal pleading of a statutory offence does not require a' negative averment that the defendant is within an excepted class, unless the exception be in the enacting clause of the statute; if it be in a separate clause or in a subsequent statute, it is matter of defence.
    2. Upon the trial of an indictment for unlawfully commencing the practice of medicine, a witness testified to a relevant conversation with the defendant, in the course of which the defendant gave to him a bottle and a card upon which was written “a copy of the contents of the bottle.” Held, that these exhibits were properly admitted without proof that the contents of the bottle was a medicine.
    3. In the above context the word “prescription” is a common noun, and not a mere conclusion of the witness; it means a written medical recipe.
    
      On error to the Hudson Quarter Sessions.
    Before Magie, Chief Justice, and Justices Dixon, Garrison and Gummere.
    For the plaintiff in error, MoEwan & MoEwan and Frank M. Hardenbrook.
    
    For the state, James S. Erwin, prosecutor of the pleas.
   The opinion of the court was delivered by

Garrison, J.

Upon this writ of error the defendant may question the sufficiency of the indictment. A motion to quash was duly made before the jury was sworn. Mead v. State, 24 Vroom 601.

The error, if any, in the pleading appears upon the face of the record.

The indictment is for a statutory offence, to wit, unlawfully commencing the practice of medicine without first filing a state license. Gen. 8tat.,p. 2084.

The supposed defect in the indictment is that it fails to aver that the defendant is not one of the persons who, by the-ninth section of the act, are classified and excepted from its operation. Correct pleading does not require a negative averment of this sort, unless the exception be in the enacting clause of the penal statute; if it be in a separate clause or in a subsequent statute it is matter of defence. Roberson v. Lambert-ville, 9 Vroom 69; Hoffman v. Peters, 22 Id. 244. The indictment sufficiently charges a violation of the act of 1894, as amended by the act of 1895, which was prior to the date of the alleged offence.

Error is also assigned to the admission of certain evidence by the trial court. The case of the state rested upon the testimony of Dr. Hendrick, who testified that he visited the defendant at his drug store, told him that he had pain in the stomach and back with vomiting and general distress, and that the defendant gave him a bottle containing a liquid and labeled “ three drops at a time,” and wrote upon the back of a card, “ a copy of the contents of the bottle,” and gave it to the witness, who paid thirty-five cents for the bottle and ten cents for the copy on the card. On its printed side this card advertised the defendant as “ Dr. Albert Mayer, Pharmacist and Chemist.” The “ copy ” on the back of the card was,

“R. Sol ut. Fowleri, 3 oz.
“ S. 3 drops at time.
“Albert Mayer.”

Objection was made to the introduction of this bottle because it was not shown that it contained a medicine, and to the card because it was not shown that it was a prescription. Objection was also made because Dr. Hendrick was permitted to characterize the writing on the card as “a prescription,” upon the ground that it was a conclusion of the witness. The exhibits were properly admitted if for no better reason because they were facts accompanying relevant words, i. e., res gestee; but their direct relevancy is too clear for discussion. The objection to the use of the word “prescription,” under the circumstances, does not rest upon a much more substantial foundation. It was not the act of the defendant that was thus characterized, but a bit of writing then in court. In this context the word “ prescription ” has long since passed from its general and etymological meaning to a concrete and substantive use — not even participial — standing not for the act, but for the thing, to wit, a written medical recipe. Even in its participial sense this witness, who was a medical practitioner, would have been permitted to employ it.

The judgment of the Sessions is affirmed.  