Criswell v. State

• Decision Date: 26 April 1961
• Docket Number: No. 33342,33342
• Citation: 171 Tex.Crim. 206,346 S.W.2d 341
• Parties: Arthur CRISWELL, Jr., Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 341

346 S.W.2d 341

171 Tex.Crim. 206

Arthur CRISWELL, Jr., Appellant, v. STATE of Texas, Appellee.

No. 33342.

Court of Criminal Appeals of Texas.

April 26, 1961.

Kirchheimer & Kirchheimer by Theo. R. Kirchheimer, Houston, for appellant. Frank Briscoe, Dist. Atty., Carl E. F. Dally, Gus J. Zgourides, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Judge.

The offense is the sale of a narcotic drug; the punishment, 5 years.

State narcotic agent Scholl testified that he became acquainted with appellant, who ran a drug store, through an informer sometime prior to the day in question; that on such day he called appellant on the telephone, asked him for some barbiturates; that during the conversation appellant suggested paregoric, and a price, quantity and meeting place were agreed upon. He testified that, in company with Houston narcotic officer Gentry, he went to the appointed place, and when appellant arrived he motioned them to follow him; that further up the street both automobiles came to a halt, and appellant, in exchange for $4 in money, handed him a package which contained two clear pint bottles containing a brown liquid with no labels. He stated that as he prepared to leave appellant called out to him to wait, stating that he had through mistake handed him two pints of paregoric which he planned to deliver to someone else; that he returned the two pint bottles to appellant and received in return an eight-ounce bottle containing a brown liquid similarly unlabeled, which he marked for identification and later delivered to the city chemist. Appellant was not arrested until sometime later; it was developed on cross examination that at the time of his arrest an inventory of appellant's drug store was made; that Scholl had received information that other illegal sales had been made from appellant's drug store; and that sometime during his investigation Scholl had asked to see appellant's pharmacist's license, and appellant failed to produce the same.

Officer Gentry corroborated Scholl's testimony concerning the sale.

Chemist Crawford testified that he received the unlabeled bottle from Scholl, found it to contain 'right at eight ounces of paregoric,' that he ran a test on the same and by a process of evaporation extracted from the contents of the bottle 900 milligrams of powdered opium, which would be sufficient for ten subcutaneous human injections of narcotics.

J. H. Arnette, Secretary of the Texas State Board of Pharmacy, testified that, according to the records of his Board, appellant had been a licensed pharmacist for some time prior and subsequent to the day charged in the indictment but he was not licensed to practice on such date because he had permitted his license to expire due to non-payment of his annual license renewal for the year of 1959 and that such license was in a state of suspension at such time.

Appellant denied the sale to Scholl, and he and his witnesses testified to an alibi.

The jury chose to accept the State's version of the case, and we find the evidence sufficient to support their verdict. We shall discuss the contentions advanced in the brief.

He first contends that the court committed fundamental error in his charge. For the first time on motion for new trial, it is urged that the court erred in referring to 'a narcotic drug, to-wit, a preparation of opium...