Browning v. State
| Citation | 276 S.W.2d 522,161 Tex.Crim. 273 |
| Decision Date | 19 May 1954 |
| Docket Number | No. 26969,26969 |
| Parties | G. E. BROWNING, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
M. Gabriel Nahas, Jr., James Royall. Houston, for appellant.
Ewing Werlein, Dist. Atty., King C. Haynie, Asst. Dist. Atty., Houston, Wesley Dice, State's Atty., Austin, for the State.
BELCHER, Commissioner.
Appellant was convicted for the unlawful delivery of barbiturates upon each of three separate offenses alleged in the complaint and information, and his punishment was assessed on each count at sixty days in jail and a fine of $1,000.
Appellant contends that the court erred in overruling his motion to quash the complaint and information upon the ground that they do not negative any of the exceptions set out in other portions of the statute whereby a legal delivery of barbiturates may be made.
Art. 726c, Vernon's Ann.P.C., upon which this case is based, provides in Sec. 12 thereof as follows:
In view of this provision in said statute, there was no necessity for negativing the exceptions.
The testimony of M. A. Billnitzer, a detective for the City of Houston, shows that he visited appellant in Houston on three different dates and each time told appellant that he needed something to make him sleep; that the appellant delivered to him on the first occasion 24 capsules, on the second occasion 26 capsules, and on the third occasion 24 capsules; that he (Billnitzer) delivered the capsules received on these visits in separate packages to Floyd E. McDonald, chemist for the City of Houston Police Department.
Floyd E. McDonald, chemist, identified the capsules delivered to him by M. A. Billnitzer and testified that they contained a derivative of barbituric acid known as sodium pento-barbiturate.
There is no testimony in the record showing that the appellant is 'a person licensed * * * to prescribe and administer barbiturates.'
We find the evidence sufficient to sustain the conviction.
The judgment is affirmed.
Opinion approved by the court.
On Motion for Rehearing
Appellant's motion for rehearing herein still complains of the proposition that the information does not negative the fact that appellant was one of the persons who came under the 'unless' clause in Section 3, Paragraph (a)(1) of the original statute passed by the 52nd Legislature, Regular Session, as found on page 759 of the Acts thereof. He still contends that the State's pleading should have negatived the fact that the appellant was, among other things, a pharmacist operating upon an original prescription, and the many further exceptions that are found therein.
We think the answer to such contention will be found in Section 12 of the original enactment, which is also found in Article 726c, Vernon's Ann.P.C., said Section 12 being quoted in the original opinion herein. We also think the same is in answer to the appellant's contention in this motion.
Thus believing, the motion for rehearing will be overruled.
On Second Motion for Rehearing
It is again insisted that under the rule stated and applied in Anderson v. State, 132 Tex.Cr.R. 37, 105 S.W.2d 258; Baker v. State, 132 Tex.Cr.R. 527, 106 S.W.2d 308; Rice v. State, 37 Tex.Cr.R. 36, 38 S.W. 801; and U.S. v. Cook, 17 Wall. 168, 21 L.Ed. 538, the information is fatally defective in failing to negative that the barbiturate was a compound, mixture or preparation such as declared to be without the act in Sec. 4 thereof; and in failing to negative...
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King v. State
...charging an offense under the statute, to negative any of the exceptions or exemptions contained in the act. Browning v. State, 161 Tex.Cr.R. 276, 276 S.W.2d 522, certiorari denied 348 U.S. 971, 75 S.Ct. 531, 99 L.Ed Appellant further urged as a ground for his motion to quash that Art. 726c......
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Bridges v. State, 29869
...in the Act. Such provision of the statute was given effect in Manson v. State, Tex.Cr.App., 316 S.W.2d 414. See, also, Browning v. State, 161 Tex.Cr.R. 273, 276 S.W.2d 522. Appellant next insists that the recovery of the four capsules from the floor board of his automobile by the Officers w......
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Brown v. State
...Section 3 of the Act which makes it a penal offense for any person to possess a barbiturate. This Court's holding in Browning v. State, 161 Tex.Cr.R. 273, 276 S.W.2d 522; Nesbit v. State, Tex.Cr.App, 306 S.W.2d 901; and Ex parte Engel, 158 Tex.Cr.R. 95, 253 S.W.2d 430, supports the State's ......
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Meadowes v. State, 35789
...Act, and the burden of proof of any such exception, excuse, proviso, or exemption shall be upon the defendant.' In Browning v. State, 161 Tex.Cr.R. 273, 276, 276 S.W.2d 522, we held that under a similar provision of Art. 726c, V.A.P.C. (now repealed) it was unnecessary to negative certain e......