Burk v. State, 671S172

Decision Date24 November 1971
Docket NumberNo. 671S172,671S172
Citation275 N.E.2d 1,257 Ind. 407
Parties, 50 A.L.R.3d 1279 Debra BURK, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Craig, Craig & Brown, Brazil, for appellant.

Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., for appellee.

HUNTER, Judge.

Appellant, Debra Burk, was found guilty, after trial to a jury, of the use of a narcotic drug, Lysergic Acid Diethylamide, commonly known as LSD. Upon conviction, a minimum penalty was imposed which consisted of a one (1) dollar fine and a sentence of one hundred-eighty (180) days in the Correctional Department of the Indiana Women's Prison. Appellant's Motion to Correct Errors was overruled, and this appeal was initiated.

Appellant was charged pursuant to IC 1971, 35--24--1--2 (Ind.Ann.Stat. § 10--3520 (1970 Supp.)). The affidavit reads, in part:

'* * * did then and there unlawfully and feloniously (Count I) use a narcotic drug, to wit: Lysergic Acid Diethylamide, commonly known as LSD, same being; (Count II) become found in a certain public place, to wit: The Clay County Hospital, in the City of Brazil, Indiana, when she was under the influence of a narcotic drug, to wit: Lysergic Acid Diethylamide, commonly known as LSD. * * *'

Appellant was found not guilty of Count II, but was convicted on Count I.

IC 1971, 35--24--1--2 (Ind.Ann.Stat. § 10--3520 (1970 Supp.)), reads, in applicable part, as follows:

'It shall be unlawful for any person to * * * use any narcotic drug or drugs except as authorized in the laws of the United States or the state of Indiana * * *.'

Prior to trial, counsel for appellant filed a timely Motion to Quash the Affidavit. The Motion to Quash was based upon the following grounds:

1. That the charge stated does not constitute a public offense:

2. That the Affidavit does not state the offense with sufficient certainty;

3. That the charge is based upon a Statute that is unconstitutional.

The trial court overruled the motion, and appellant has assigned error to this ruling on appeal.

Appellant contends that lysergic acid diethylamide, hereinafter referred to as LSD, is not a narcotic drug as defined by IC 1971, 35--24--1--1 (Ind.Ann.Stat. § 10--3519 (1970 Supp.)), which reads, in part, as follows:

(14)(a) "Narcotic drugs' means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:

1. Opium, isonipecaine, coca leaves, cannabis and opiate;

2. Any compound, manufacture, salt, derivative, or preparation of opium, isonipecaine, coca leaves or opiate; and

3. Any substance and any compound, manufacture, salt, derivative, or preparation thereof which is chemically identical with any of the substances referred to in paragraphs 1 and 2 immediately above.

(b) The term 'narcotic drugs' shall also mean, but shall not be limited to, any drug which the Indiana board of pharmacy, after reasonable notice and opportunity for hearing, shall determine has an addiction-forming or addiction-sustaining quality similar to that of any narcotic drug as defined in subsection (a) of this section. In the rules and regulations adopted by the board under the provisions of chapter 120 of the Acts of 1945, as said act may hereafter be amended, the Indiana board of pharmacy shall issue a list of such narcotic drugs and proclaim them to be narcotic drugs as defined by this act. In the determination that any such drug is a narcotic drug, the pharmacy board may take into consideration the fact that such drug has been determined to be a narcotic drug by the federal narcotics law, as (or) has been determined to be a narcotic drug by 'Presidential Proclamation."

The conviction was based on the conclusion that the Indiana Board of Pharmacy has proclaimed that LSD is a 'narcotic drug' pursuant to the powers vested in it by the above statute. It is claimed that such proclamation was made by Board of Pharmacy Regulation 22, § 1, which reads as follows:

'The terms 'narcotics' and 'other dangerous drugs' as used in these regulations shall mean those drugs, biologicals, medicinal substances or devices defined in the Indiana Uniform Narcotic Drug Act (Burns' Stat., §§ 10--3519--10--3543, IC 1971, 35--24--1--1 to 35--24--1--26), and the Indiana Dangerous Drug Act (Burns' Stat., §§ 35--3331--35--3339, IC 1971, 16--6--8--1 to 16--6--8--10) and all acts supplemental thereto and amendatory thereof and any rules and regulations promulgated by the Indiana Board of Pharmacy pursuant to the Indiana Uniform Narcotic Drug Act, and the definitions of such terms as used by the United States Government and the Executive Proclamations of the President of the...

To continue reading

Request your trial
16 cases
  • Tiplick v. State
    • United States
    • Supreme Court of Indiana
    • October 7, 2015
    ...charged with the use of LSD under the Indiana Uniform Narcotic Drug Act, but LSD was only prohibited under the Indiana Dangerous Drug Act. 257 Ind. 407, 409–10, 275 N.E.2d 1, 2–3 (1971). The State's theory was that because the Pharmacy Board was empowered to enact regulations stating additi......
  • Cua v. Ramos, 2-679-A-189
    • United States
    • Court of Appeals of Indiana
    • March 26, 1981
    ...of newly discovered evidence; and (4) the striking of testimony because of violation of a separation of witness order. Burk v. State, (1971) 257 Ind. 407, 257 N.E.2d 1. DECISION ISSUE ONE Did the trial court commit reversible error in giving or refusing to give certain instructions? CONCLUS......
  • White v. State, 2--673A142
    • United States
    • Court of Appeals of Indiana
    • September 26, 1974
    ...3 which lists Methadone as a narcotic drug. Because we reverse, other issues raised by White need not be considered. Burk v. State (1971), 257 Ind. 407, 275 N.E.2d 1; Cook v. Am. States Ins. Co. (1971), Ind.App., 275 N.E.2d 832; Selner v. Fromm (1969), 145 Ind.App. 378, 251 N.E.2d 127. DECI......
  • Hiatt v. Brown, 2-1279A392
    • United States
    • Court of Appeals of Indiana
    • June 30, 1981
    ...J., concurs in result. 1 Other issues were raised by Hiatt which we need not consider because we reverse and remand. Burk v. State, (1971) 257 Ind. 407, 275 N.E.2d 1.2 Hiatt does not argue that an extremely dangerous condition existed or that some special relationship existed which might ca......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT