John Todd v. The State, 30 Tex. Ct. App. 667

DAVIDSON, Judge. Appellant was tried on an information charging him with a violation of the Sunday law under the provisions of

article 186 of the Penal Code. The evidence shows that the defendant kept a stock of drugs with his general merchandise, but had no regular prescription clerk, and did not fill prescriptions. It further shows, that the

article sold was. what is known as “Florida Water.” It was questioned on the trial whether or not Florida Water would come under the denomination of drugs or medicines, and upon this point Dr. Stone, a physician of forty years practice, testified: “I consider Florida Water a drug and medicine. Have often seen it used as a deodorant in a sick room. I have often prescribed it in my practice, and known other physicians to prescribe it. * * * I have known Florida Water to be used for sick headache. Ladies frequently use it for sick headache and nausea. I do not know of what Florida Water is composed.

It is not in the dispensatory, and is therefore not officinal. * * * I have prescribed Florida Water in treatment, both as a deodorant and a remedial agent in alleviating pain.” Dr. McOloy, for the State, testified, that he was a physician, and had been practicing medicine for forty years. He did not know the ingredients of Florida Water, and did not know what it was. Did not know whether it was a drug or medicine or not. He knew nothing about it, and had never used it in the sick room.

He said it was not to be found in the dispensatory or materia medico, but that the dispensatory and materia medico did not contain all the drugs and medicines in use. Physicians do not consider any drug officinal not mentioned in these works. Dr. Gibson testified, for the State, that he was a practicing physician of about forty years. This witness did not consider Florida Water a drug or medicine, and had never used it in his practice, and had never known it used or prescribed by physicians; that he had heard of its being used in the sick room as a deodorant.

Defendant Todd testified: “I keep a drug, book, and general store. I keep all kinds of general or ordinary medicine, but do no prescription work. I sold the

article to witness Onslow as a medicine. I consider it a medicine, or would not have sold it on Sunday for any consideration. Since the enforcement of the Sunday law I have been specially Careful not to sell anything prohibited by law to be sold on Sunday. I kept the

article sold to Onslow among my stock of medicines as such, and so sold it. I have had applications to purchase other articles that I have in stock, that were not allowed to be sold, nearly every Sunday since the enforcement of the Sunday law in the town of Richmond, Fort Bend County, Texas, where I am in business, which began with the ending of the big revival inaugurated by Rev. Sam Jones in Houston, Texas.” Hnder our statute (article 187, Penal Code) the sale of drugs and medicines is not prohibited on Sunday.

We do not believe the evidence in this case supports the conviction, wherefore the judgment is reversed and the cause remanded. Beversed and remanded. Judges all present and concurring.