Brown v. State

• Decision Date: 26 June 1914
• Docket Number: (No. 3205.)
• Citation: 168 S.W. 861
• Parties: BROWN v. STATE.
• Court: Texas Court of Criminal Appeals

168 S.W. 861

BROWN v. STATE.

(No. 3205.)

Court of Criminal Appeals of Texas.

June 26, 1914.

Appeal from Erath County Court; A. P. Young, Judge.

M. A. Brown was convicted of the unlawful sale of cocaine and morphine, and he appeals. Affirmed.

Hickman & Bateman, of Stephenville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted under the following indictment, omitting formal parts:

"Did then and there unlawfully sell, furnish, and give cocaine and morphine to M. E. Maddox; the said cocaine and morphine not then and there being sold, furnished, and given by the said M. A. Brown upon the original written order or prescription of a lawfully authorized practitioner of medicine, dentistry, or veterinary medicine."

The only error relied on is that the court erred in overruling the motion to quash the indictment. The motion alleges that the indictment is defective, because it is not charged that the cocaine and morphine were not recommended in good faith for diarrhea or cholera; that it was not sold at wholesale to retail druggists; that it does not allege the purchaser was not a manufacturer or regular practitioner of medicine, etc. If it was necessary to negative these exceptions, of course the indictment would be defective; but in defining the offense article 747 of the Penal Code reads:

"It shall be unlawful for any person, firm or corporation to sell, furnish or give away cocaine, salts of cocaine or preparations containing cocaine, or salts of cocaine, or any morphine, or salts of morphine, or preparations containing morphine or salts of morphine, or any opium or preparations containing opium, or any chloral hydrate or preparations containing chloral hydrate, except upon the original written order or prescription of a lawfully authorized practitioner of medicine, dentistry or veterinary medicine," etc.

We had the question here presented in Slack v. State, 61 Tex. Cr. R. 372, 136 S. W. 1073, Ann. Cas. 1913B, 112, and held adversely to appellant's contention, quoting approvingly United States v. Cook, 84 U. S. (17 Wall.) 168, 21 L. Ed. 538, wherein it was held:

"Commentators and judges have sometimes been led into error by supposing that the words `enacting clause,' as frequently employed, mean the section of the statute defining the offense, as contradistinguished from a subsequent section in the same statute, which is a misapprehension of the term, as the only real question in the case is whether...