People v. Abraham (16 A.D. 58, 1897)

Goodrich, P. J.:

The defendants were convicted of having retailed medicines in violation of section 1 of chapter 502, Laws of 1879, as amended by Laws of 1886 (Chap. 272, § 1), which reads : “ It shall be unlawful * * * for any person, unless a registered pharmacist within the meaning of this act, to open or conduct any pharmacy or store for retailing, dispensing or compounding medicines or poisons, or for any one not a registered pharmacist or registered assistant pharmacist to prepare physicians’ prescriptions, except under the immediate supervision of a registered pharmacist or registered assistant pharmacist in the county of Kings.”

Section 6 provides that a registered pharmacist shall not be. responsible for the quality of drugs or medicines sold by him in the original packages of the manufacturers, and also those known as “ patent medicines; ” and section 8 provides that the act does not apply to the business of wholesale dealers, except as to certain parts not now in question.

Section 9 of the act, as amended in 1886, contains, among other clauses, the further provision that “ any person not registered who-sells, compounds or dispenses drugs, medicines or poisons, * * * except under the immediate supervision of a registered pharmacist, * * * shall, for every such offense, be deemed guilty of a misdemeanor.”

The undisputed evidence shows that the defendants, composing the firm of Abraham & Straus, were engaged in business in a store on Fulton street, Brooklyn, where they had a counter on which were displayed articles known as drugs. In February last, one Cameron purchased at this counter a bottle of paregoric and a bottle of quinine pills, which aré medicines, the bottles being corked, sealed and unopened.

At the trial, the prosecution offered in evidence the two bottles which were marked as exhibits, and they were produced before this •court on the argument of .this appeal.

The labels read as follows :

The record shows that these exhibits were at first marked for. identification only, but at a later stage of the trial they were treated as exhibits, were certified by the police justice to the County Court, went up to the County Court with the papers in the case, and are now in the possession of the clerk of this court. Some question having arisen as to the identity of the bottles, counsel for both parties, at a date subsequent to the argument of the appeal, were requested by the court to appear before it, and it was then conceded by both counsel that the bottles were the ones used at the trial.

.It was also conceded on the trial “ that the defendants are' not registered pharmacists, and that these articles were not sold "under the immediate supervision of a registered pharmacist.” The prosecution admitted "that the bottles were sold by "the defendants in the original packages of the manufacturer,, and on the argument it was further conceded that these bottles were original packages, not put up by Abraham & Straus. It is not claimed that the defendants