Browne v. State

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

Page 169

131 N.W.2d 169
24 Wis.2d 491
Arthur Herbert BROWNE, Plaintiff in Error,
v.
STATE of Wisconsin, Defendant in Error.
Supreme Court of Wisconsin.
Nov. 12, 1964.
Certiorari Denied Feb. 1, 1965.
See 85 S.Ct. 730.

[24 Wis.2d 511B] 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.

[24 Wis.2d 511C] PER CURIAM.

Subsequent to our original opinion herein defendant Browne moved for rehearing and

Page 170

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) [24 Wis.2d 511D] 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...

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83 practice notes
  • Miranda v. State, No. 759
    • United States
    • United States Supreme Court
    • 10 Octubre 1966
    ...924, 205 N.E.2d 852; Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 206 A.2d 288; Browne v. State, 24 Wis.2d 491, 129 N.W.2d 175, 131 N.W.2d 169.An ample reading is given in: United States ex rel. Russo v. State of New Jersey, 351 F.2d 429 (C.A.3d Cir.); Wright v. Dickson, 336 F.2d 878......
  • Rakovich v. Wade, Nos. 85-1529
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 27 Mayo 1987
    ...properly investigate possible battery). As the Wisconsin Supreme Court explained in Browne v. State, 24 Wis.2d 491, 507, 129 N.W.2d 175, 131 N.W.2d 169 "Certainly the police may investigate claims of crime on evidence not sufficient to justify an arrest.... Although both the Fourth Amendmen......
  • Johnson v. State, No. 75--350--CR
    • United States
    • United States State Supreme Court of Wisconsin
    • 18 Enero 1977
    ...Wis.2d 349] officer to believe that guilt is more than a possibility. Browne v. State, supra (24 Wis.2d 491, 129 N.W.2d 175, 131 N.W.2d 169), and it is well established that the belief may be predicated in part upon hearsay information. Draper v. United States (1959), 358 U.S. 307, 79 S.Ct.......
  • State v. Cheers, No. 79-1454-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • 15 Junio 1981
    ...the arresting officer's conduct is to be measured is objective, not subjective, Browne v. State, 24 Wis.2d 491, 503, 129 N.W.2d 175, 131 N.W.2d 169 (1964), cert. den. 379 U.S. 1004, 85 S.Ct. 730, 13 L.Ed.2d 174, and this court is obliged to consider the totality of the circumstances, thus a......
  • Request a trial to view additional results
83 cases
  • Miranda v. State, No. 759
    • United States
    • United States Supreme Court
    • 10 Octubre 1966
    ...924, 205 N.E.2d 852; Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 206 A.2d 288; Browne v. State, 24 Wis.2d 491, 129 N.W.2d 175, 131 N.W.2d 169.An ample reading is given in: United States ex rel. Russo v. State of New Jersey, 351 F.2d 429 (C.A.3d Cir.); Wright v. Dickson, 336 F.2d 878......
  • Rakovich v. Wade, Nos. 85-1529
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 27 Mayo 1987
    ...properly investigate possible battery). As the Wisconsin Supreme Court explained in Browne v. State, 24 Wis.2d 491, 507, 129 N.W.2d 175, 131 N.W.2d 169 "Certainly the police may investigate claims of crime on evidence not sufficient to justify an arrest.... Although both the Fourth Amendmen......
  • Johnson v. State, No. 75--350--CR
    • United States
    • United States State Supreme Court of Wisconsin
    • 18 Enero 1977
    ...Wis.2d 349] officer to believe that guilt is more than a possibility. Browne v. State, supra (24 Wis.2d 491, 129 N.W.2d 175, 131 N.W.2d 169), and it is well established that the belief may be predicated in part upon hearsay information. Draper v. United States (1959), 358 U.S. 307, 79 S.Ct.......
  • State v. Cheers, No. 79-1454-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • 15 Junio 1981
    ...the arresting officer's conduct is to be measured is objective, not subjective, Browne v. State, 24 Wis.2d 491, 503, 129 N.W.2d 175, 131 N.W.2d 169 (1964), cert. den. 379 U.S. 1004, 85 S.Ct. 730, 13 L.Ed.2d 174, and this court is obliged to consider the totality of the circumstances, thus a......
  • Request a trial to view additional results

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