THE UNITED STATES PLAINTIFF AND APPELLEE, VS. SANTIAGO PINEDA, DEFENDANT AND APPELLANT.

This appeal requires a construction and an application, for the first time,
of the penal provisions of the Pharmacy Law.

Santiago Pineda, the defendant, is a registered pharmacist of long standing
and the owner of a drug store located at Nos. 442, 444, Calle Santo Cristo, city
of Manila. One Feliciano Santos, having some sick horses, presented a copy of a
prescription obtained from Dr. Richardson, and which on other occasions Santos
had given to his horses with good results, at Pineda’s drug store for filling.
The prescription read—”clorato de potasa—120 gramos —en seis papelitos de 20
gramos, para caballo.” Under the supervision of Pineda, the prescription was
prepared and returned to Santos in the form of six papers marked, “Botica
Pineda—Clorato potasa—120.00—en seis papeles —para caballo—Sto. Cristo 442, 444,
Binondo, Manila.” Santos, under the belief that he had purchased the potassium
chlorate which he had asked for, put two of the packages in water and gave the
doses to two of his sick horses. Another package was mixed with water for
another horse, but was not used. The two horses, to which had been given the
preparation, died shortly afterwards. Santos, thereupon, took the three
remaining packages to the Bureau of Science for examination. Drs. Peña and
Darjuan, of the Bureau of Science, on analysis found that the packages contained
not potassium chlorate but barium chlorate. At the instance of Santos, the two
chemists also went to the drug store of the defendant and bought potassium
chlorate, which when analyzed was found to be barium chlorate. (Barium chlorate,
it should be noted, is a poison; potassium chlorate is not.) Dr. Buencamino, a
veterinarian, performed an autopsy on the horses, and found that death was the
result of poisoning.

Four assignments of error are made. The first is that the lower court erred
in admitting the testimony of the chemist Peña and Darjuan as to their purchase
of potassium chlorate at the drug store of the accused, which substance proved
on analysis to be barium chlorate. What appellant is here relying on is the
maxim res inter alios acta. As a general rule, the evidence of other
offenses committed by a defendant is inadmissible. But appellant has confused
this maxim and this rule with certain exceptions thereto. The effort is not to
convict the accused of a second offense Nor is there an attempt to draw the mind
away from the point at issue and thus to prejudice defendant’s case. The purpose
is to ascertain defendant’s knowledge and intent, and to fix his negligence. If
the defendant has on more than one occasion performed similar acts, accident in
good faith is possibly excluded, negligence is intensified, and fraudulent
intent may even be established. It has been said that there is no better
evidence of negligence than the frequency of accidents. (See 10 R. C.
L., pp. 938, 940.) The United States Supreme Court has held that:

“On the trial of a criminal case where the question relates to the tendency
of certain testimony to throw light upon a particular fact, or to explain the
conduct of a particular person, there is a certain discretion on the part of the
trial judge which a court of errors will not interfere with, unless it
manifestly appear that the testimony has no, legitimate bearing upon the
question at issue, and is calculated to prejudice the accused.

“Whenever the necessity arises for a resort to circumstancial evidence,
either from the nature of the inquiry or the failure of direct proof, objections
to the testimony on the ground of irrelevancy are not favored.

“Evidence is admissible in a criminal action which tends t6 show motive,
although it tends to prove the commission of another offense by the defendant.”
(Moore vs. U. S. [1853], 150 U. S., 57.)

The second assignment of error is that the lower court erred in finding that
the substance sold by the accused to Feliciano Santos on the 22d of June, 1916,
was barium chlorate and not potassium chlorate. The proof demonstrates the
contrary.

The third and fourth assignments of error are that the lower court erred in
finding that the accused has been proved guilty beyond a reasonable doubt of an
infraction of Act No. 597, section 17, as amended. The third assignment contains
the points we should consider, including, we may remark, a somewhat difficult
question concerning which the briefs have given little assistance.

The Pharmacy Law was first enacted as Act No. 597, was later amended by Act
Nos. 1921, 2236, and 2382, and is now found as Chapter 30 of the Administrative
Code. The law provides for a board of pharmaceutical examiners, and the
examination and registration of pharmacists, and finally contains sundry
provisions relative to the practice of pharmacy. High qualifications for
applicants for the pharmaceutical examination are established. The program of
subjects for the examination is wide. Responsibility for the quality of drugs is
fixed by section 17 of the Pharmacy Law, as amended (now Administrative Code
[1917], section 751), in the following term:

“Every pharmacist shall be responsible for the quality of all drugs,
chemicals, medicines, and poisons he may sell or keep for sale; and it shall
be unlawful for any person whomsoever to manufacture, prepare,
sell, or administer any prescription, drug, chemical, medicine, or
poison under any fraudulent name, direction, or pretense, or to adulterate
any drug, chemical, medicine, or poison so used, sold, or offered for sale. Any
drug, chemical, medicine, or poison shall be held to be adulterated or
deteriorated within the meaning of this section if it differs from the standard
of quality or purity given in the United States Pharma-copoeia.”

The same section of the Pharmacy Law also contains the following penal
provision: “Any person violating the provisions of this Act shall, upon
conviction, be punished by a fine of not more than five hundred dollars.” The
Administrative Code, section 2676, changes the penalty somewhat by providing
that:

“Any person engaging in the practice of pharmacy in the Philippine Islands
contrary to any provision of the Pharmacy Law or violating any provisions of
said law for which no specific penalty is provided shall, for each offense, be
punished by a fine not to exceed two hundred pesos, or by imprisonment for not
more than ninety days, or both, in the discretion of the court.”

These are the provisions of law, pursuant to which prosecution has been
initiated and which it is now incumbent upon us to construe.

Turning to the law, certain points therein as bearing on our present facts
must be admitted. Thus, defendant is a pharmacist. As a pharmacist, he is made
responsible for the quality of all drugs and poisons which he sells. And finally
it is provided that it shall be unlawful for him to ‘ sell any drug or poison
under any “fraudulent name.” It is the one word “fraudulent” which has given the
court trouble. What did the Legislature intend to convey by this restrictive
adjective?

Were we to adhere to the technical definition of fraud, which appellant
vigorously insists upon, it would be difficult, if not impossible, to convict
any druggist of a violation of the law. The prosecution would have to prove to a
reasonable degree of certainty that the druggist made a material representation;
that it was false; that when he made it he knew that it was false or made it
recklessly without any knowledge of its truth and as a positive assertion; that
he made it with the intention that it should be acted, upon by the purchaser;
that the purchaser acted in reliance upon it, and that the purchaser thereby
suffered injury. Such a construction with a literal following of well-known
principles on the subject of fraud would strip the law of at least much of its
force. It would leave the innocent purchaser of drugs, who must blindly trust in
the good faith and vigilance of the pharmacist, at the mercy of any unscrupulous
vendor. We should not, therefore, without good reason so devitalize the law.

The profession of pharmacy, it has been said again and again, is one
demanding care and skill. The responsibility of the druggist
to use care has been variously qualified as “ordinary care,” “care of a
specially high degree,” “the highest degree of care known to practical men.”
Even under the first conservative expression, “ordinary care” with reference to
the business of a druggist, the Supreme Court of Connecticut has said must be
held to signify “the highest practicable degree of prudence, thoughtfulness, and
vigilance, and the most exact and reliable safeguards consistent with the
reasonable conduct of the business, in order that human life may not constantly
be exposed to the danger flowing from the substitution of deadly poisons for
harmless medicine.” (Tombari vs. Connors [1912], 85 Conn., 235. See
also Willson vs. Faxon, Williams & Faxon [1913], 208 N. Y., 108;
Knoefel vs. Atkins [1907], 81 N. E., 600.) The “skill” required of a
druggist is denominated as “high” or “ample.” (Peters vs. Jackson
[1902], 50 W. Va., 644; 57 L. R. A., 428.) In other words, the care required
must be commensurate with the danger involved, and the skill employed must
correspond with the superior knowledge of the business which the law
demands.

Under one conception, and it should not be forgotten that ‘the cases we
consider are civil in nature, the question of negligence or ignorance is
irrelevant. The druggist is responsible as an absolute guarantor of what he
sells. In a decision which stands alone, the Supreme Court of Kentucky said:

“As applicable to the owners of drug stores, or persons engaged in vending
drugs and medicines by retail, the legal maxim should be reversed. Instead of
caveat emptor, it should be caveat venditor. That is to say,
let him be certain that he does not sell to a purchaser or send to a patient one
drug for another, as arsenic for calomel, cantharides for or mixed with
snakeroot and Peruvian bark, or even one innocent drug, calculated to produce a
certain effect, in place of another sent for and designed to produce a different
effect. If he does these things, he cannot escape civil responsibility, upon the
alleged pretexts that it was an accidental or an innocent mistake; that he had
been very careful and particular, and had used extraordinary care and diligence
in preparing or compounding the medicines as required, etc. Such excuses will
not avail him.” (Fleet vs. Hollenkemp [1852], 56 Am. Dec, 563.)

Under the other conception, in which proof of negligence is considered as
material, where a customer calls upon a druggist for a harmless remedy, delivery
of a poisonous drug by mistake by the druggist is prima facie
negligence, placing the burden on him to show that the mistake was under the
circumstances consistent with the exercise of due care. (See Knoefel
vs. Atkins, supra.) The druggist cannot, for example in
filling a prescription calling for potassium chlorate give instead to the
customer barium chlorate, a poison, place this poison in a package labeled
“potassium chlorate,” and expect to escape responsibility on a plea of mistake.
His mistake, under the most favorable aspect for himself, was negligence. So in
a case where a druggist filled an order for calomel tablets with morphine and
placed the morphine in a box labeled calomel, it was said:

“It is not suggested, nor can we apprehend that it is in any wise probable,
that the act of furnishing the wrong drug in this case was willful. If it was
furnished by the clerk, it was undoubtedly a mistake and unintentional. However,
it was a mistake of the gravest kind, and of the most disastrous effect. We
cannot say that one holding himself out as competent to handle such drugs, and
who does so, having rightful access to them, and relied upon by those dealing
with him to exercise that high degree of caution and care called for by the
peculiarly dangerous nature of this business, can be heard to say that his
mistakes by which he furnishes a customer the most deadly of drugs for those
comparatively harmless is not, in and of itself, gross negligence, and that of
an aggravated form.” (Smith’s Admrx. vs. Middelton [1902], 56 L. R. A.,
484.)

The rule of caveat emptor cannot apply to the purchase and sale of
drugs. The vendor and the vendee do not stand at arms length as in ordinary
transactions. An imperative duty is on the druggist to take precautions to
prevent death or serious injury to anyone who relies on his absolute honesty and
peculiar learning. The nature of drugs is such that examination would not avail
the purchaser anything. It would be idle mockery for the customer to make an
examination of a compound of which he can know nothing. Consequently, it must be
that the druggist warrants that he will deliver the drug called for.

In civil cases, the druggist is made liable for any injury approximately
resulting from his negligence. If B negligently sells poison under the guise of
a beneficial drug to A, he is liable for the injury done to A. In a case, which
has repeatedly been termed the leading case on the subject and which has been
followed by the United States Supreme Court, it was said, “Pharmacists or
apothecaries who compound or sell medicines, if they carelessly label a poison
as a harmless medicine, and send it so labeled into the market, are liable to
all persons who, without fault on their part, are injured by using it as such
medicine, in consequence of the false label; the rule being that the liability
in such a case arises not out of any contract or direct privity between the
wrong-doer and the person injured, but out of the duty which the law imposes on
him to avoid acts in their nature dangerous to the lives of others.” (Nat.
Savings Bank vs. Ward [1879], 100 U.S., 195, following Thomas
vs. Winchester [1852], 2 Seld. [N. Y.] 397.) In reality, for the
druggist, mistake is negligence and care is no defense. Throughout the criminal
law, run the same rigorous rules. For example, apothecaries or apothecary
clerks, who are guilty of negligence in the sale of medicine when death ensues
in consequence, have been held guilty of manslaughter. (See Tessymond’s
Case [1828], 1 Lewin, C. C, 169.)

Bearing these general principles in mind, and remembering particularly the
care and skill which are expected of druggists, that in some jurisdictions they
are liable even for their mistake and in others have the burden placed upon them
to establish that they were not negligent, it cannot be that the Philippine
Legislature intended to use the word “fraudulent” in all its strictness. A plea
of accident and mistake cannot excuse for they cannot take place unless there be
wanton and criminal carelessness and neglect, How the misfortune occurs is
unimportant, if under all the circumstances the fact of occurrence is
attributable to the druggist as a legal fault. Rather considering the
responsibility for the quality of drugs which the law imposes on druggists and
the position of the word “fraudulent” in juxtaposition to “name,” what is made
unlawful is the giving of a false name to the drug asked for. This view is borne
out by the Spanish translation, which we are permitted to consult to explain the
English text. In the Spanish “supuesto” is used, and this word is certainly not
synonymous with “fraudulent.” The usual badges of fraud, falsity, deception, and
injury must be present—but not scienter.

In view of the tremendous and imminent danger to the public from the careless
sale of poisons and medicines, we do not deem it too rigid a rule to hold that
the law penalizes any druggist who shall sell one drug for another whether it be
through negligence or mistake.

The judgment of the lower court, sentencing the defendant to pay a fine of
P100, with subsidiary imprisonment in case of insolvency, and to pay the costs,
is affirmed with the costs of this instance against the appellant, without
prejudice to any civil action which may be instituted. So ordered.

Arellano, C. J., Torres, Johnson, Carson, Araullo, and Street,
JJ., concur.