People v. Arthur

SHAW, P. J.

This prosecution was brought under the State Pharmacy Act (Stats. 1905, p. 535, secs. 1, 12, 13 and 17, as amended by Stats. 1933, p. 2192; sec. 16, as amended by Stats. 1929, p. 239). The complaint contains three counts, on each of which defendant was convicted, and he appeals. Count one charges that the defendant “did wilfully and unlawfully permit the sale of drugs and medicines, to-wit: peroxide of hydrogen, by Miss D. G. Goodwin, who was not then and there a registered pharmacist or assistant registered pharmacist, at a store or shop of which said defendant was the manager, located at 6608 Hollywood Boulevard, Los Angeles”, and states that the acts charged are in violation of section 13 of the act. The other counts are in the same language except as to the salesman’s name and the article sold. Section 13 contains the following provision on this subject: “Any proprietor, who shall by himself, or any other person, permit the compounding of prescriptions, or the vending of drugs, medicines or poisons, in his or her store, or place of business, except by a registered pharmacist, or registered assistant pharmacist, . . . shall be guilty of a misdemeanor.”

The word “proprietor” does not appear in any of these counts and it is urged that its omission makes them bad for the reason that the offense defined in section 13 can be committed only by a proprietor and that a manager is not a proprietor. If section 13 only were to be considered, this argument might have some force (except for

*Supp. 771

the possible application of section 31 of the Penal Code to the case, which we do not now consider), for section 13 is limited to proprietors, and a manager cannot be classed as a proprietor. But a mere statement in the complaints that the facts1 alleged constitute a violation of section 13 does not limit us to that section, nor prevent us from upholding them under any other provisions of law which may make the acts charged a misdemeanor.

(In re Culver,

187 Cal. 437, 440 [202 Pac. 661];

In the Matter of Rogers,

160 Cal. 764 [118 Pac. 242];

In re Murphy,

190 Cal. 286, 291 [212 Pac. 30] ;

Homan

v.

Board of Dental Examiners,