Browne v. State

Decision Date12 November 1964
Citation131 N.W.2d 169,24 Wis.2d 491
PartiesArthur Herbert BROWNE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
CourtWisconsin Supreme Court

Jackson M. Bruce, Jr., Milwaukee, for plaintiff in error.

George Thompson, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, for defendant in error.

PER CURIAM.

Subsequent to our original opinion herein defendant Browne moved for rehearing and different counsel were appointed by this court to represent him with respect to such motion. We consider seriatim the issues raised in the brief filed in support of this motion for rehearing:

IS PAREGORIC A NARCOTIC DRUG?

For the first time in this criminal prosecution the claim is advanced that paregoric is not a narcotic drug within the meaning of sec. 161.02(3), Stats., under which defendant was convicted. This statute provides in part: 'No person shall take or use narcotic drugs habitually or excessively or except in pursuance to a prescription for permitted use as prescribed in this chapter.' Sec. 161.01(14) defines narcotic drugs, as used in ch. 161, Stats., so as to include any compound containing opium. A licensed pharmacist testified that the component parts of paregoric are opium, alcohol, benzoic acid, and oil of anise.

Sec. 161.06(1)(a) and (6) authorizes an apothecary to dispense narcotic drugs upon prescription under certain restrictions. Sub. (c) of sec. 161.06(1) then provides, 'The provisions of this subsection shall apply to paregoric.' Defendant bases his contention that paregoric is not a narcotic drug within the meaning of sec. 161.02(3), Stats. upon this latter specific mention of paregoric in the subsection relating to apothecaries filling prescriptions for narcotic drugs, and argues that the canon of statutory construction, expressio unius est exclusio alterius, applies.

We reject this contention of defendant since we are satisfied that the specific provision of sec. 161.06(1)(c) was inserted by the legislature for purposes of emphasis because paregoric is frequently among the exempt narcotic preparations listed in the statutes of other states and in the Harrison Narcotics Act. It serves as an express warning to pharmacists that they may only dispense paregoric pursuant to prescription. The definition which controls is that of sec. 161.01(14), Stats., and that clearly includes paregoric.

INSTRUCTION WITH RESPECT TO HYPODERMIC NEEDLE.

Also for the first time on this rehearing defendant complains of the following instruction included in the trial court's charge to the jury:

'Under the law applicable to this case, the conscious possession of a hypodermic syringe or needle is prima facie evidence of the unlawful use of narcotic drugs.'

This instruction is predicated upon the second sentence of sec. 161.02, (3) Stats., which reads, 'The unlawful possession of narcotic drugs by a person or of a hypodermic syringe or needle, except when possessed by a diabetic, shall be prima facie evidence of the unlawful use of such drugs.' Since statutes, if possible must be given a reasonable meaning and not one which accomplishes an absurd result, we hold the word 'unlawful' does not qualify the possession of a hypodermic syringe or needle. The only unlawful possession of such an instrument would be one obtained by theft, and clearly the legislature was not here concerned with stolen property.

Defendant attacks statutory provision as being invalid on the ground that all statutory presumptions in criminal prosecutions have been held unconstitutional in Tot v. United States (1943), 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519, and Barrett v. United States (5th Cir.1963), 322 F.2d 292. The state counters with the argument that only those statutory presumptions are invalid where there is no rational connection between the fact proved and the ultimate fact presumed. Here there clearly is a rational connection between possession of a hypodermic syringe or needle by a nondiabetic and the unlawful use of narcotic drugs.

We find it unnecessary to pass on the constitutionality of this statutory provision. Even if it were error for the trial court to have given the instruction predicated upon the statute, we determine it to have been non-prejudicial. The uncontradicted testimony that there were recent hypodermic needle marks on defendant's arms; his admissions that he was taking paregoric; and the manner in which he admitted he prepared it for injection by use of heat so as to burn off the alcohol and secure a higher concentration of opium; render it highly unlikely that this instruction had any material bearing on the jury finding defendant guilty.

Another reason for our determination not to reverse because of the giving of the quoted instruction is that no motion for new trial was made in this case. Error cannot be predicated upon an instruction to the jury without first moving for a new trial on this ground in the trial court. Ferry v. State (1954), 266 Wis. 508, 510, 63 N.W.2d 741; State v. Biller (1952), 262 Wis. 472, 482, 55 N.W.2d 414.

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