
    Jim Miller v. The State.
    
      No. 1076.
    
    
      Decided January 13th, 1897.
    
    Xoeal Option—Doctor’s Prescription.
    On a trial for a violation of local option, a doctor’s prescription, which, had never been applied for by the prosecutor, nor furnished to him by the doctor, but which the defendant had procured himself from the doctor in order to defeat a prosecution, was a palpable fraud and furnished no protection to defendant for selling the liquor. [Note.—Appellant filed a. motion for rehearing which was overruled without a written opinion.—Reporter.]
    
      Appeal from the County Court of Grayson. Tried below before Hon. J. H. Wood, County Judge.
    The opinion states the case.
    
      Woods & Holt and Hazelwood & Smith, for appellant.
    
      Mann Trice, Assistant Attorney-General, for the State.
   HURT, Presiding Judge.

Appellant was convicted of violating the local option law in Precinct No. 3, of Grayson County, and his punishment assessed at a fine of $25 and twenty days’ imprisonment in the county jail. Local option was in force in said precinct at the time of this transaction. Upon the trial, appellant introduced in evidence a prescription from one Dr. Hayes, and relied upon this prescription as authority for selling the whiskey to the prosecutor, Mitchell. The prosecutor swore that he never applied to Dr. Hayes for a prescription; that he was never examined, and knew nothing of the prescription. The circumstances show with reasonable certainty that appellant procured from the doctor the prescription in order to defeat a prosecution. The doctor seems to have been .in an adjoining room, ready for such contingencies. He was applied to by appellant for the prescription and gave it. This was a palpable fraud, and furnished no protection to the appellant for selling the whiskey. The charge submitted to the jury was as favorable as appellant was entitled to receive. We think this conviction is right, and suggest a prosecution against Dr. Hayes, under Art. 405, Penal Code. The indictment is good, and the judgment is-affirmed.

Affirmed.  