Ellis v. State, 49408
| Citation | 132 Ga.App. 684,209 S.E.2d 106 |
| Decision Date | 24 September 1974 |
| Docket Number | No. 49408,2,3,Nos. 1,49408,s. 1 |
| Parties | Lewis L. ELLIS v. The STATE |
| Court | United States Court of Appeals (Georgia) |
Joe Salem, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Carter Goode, J. Melvin England, Morris H. Rosenberg, Asst. Dist. Attys., Atlanta, for appellee.
Syllabus Opinion by the Court
The defendant appeals from a three-count conviction for selling prohibited drugs, the dates of the transactions being discrete. Count 2 alleged sale of methadone and oxycodone, and Count 3 sale of oxycodone, as violations of the Uniform Narcotic Drug Act (Code Ann. Ch. 79A). The undisputed testimony was that the tablets sold were oxycodone, the brand name of which is percodan, and methadone; that oxycodone is a synthesis from codeine, an opium alkaloid; that methadone is a synthetic just created basically from an opium alkaloid which does not have opium as such but is 'synthetically produced trying (sic) similar properties of a narcotic without being habit-forming,' but has properties similar to other narcotics such as opium derivatives; that it is an addicting drug, but less so than heroin.
1. The pertinent provisions of our code are as follows: '(12) 'Opium' includes morphine, codeine, and heroin, and any compound, manufacture, salt, derivative, mixture, or preparation of opium, but does not include apomorphine or any of its salts . . . (14) 'Narcotic drugs' means coca leaves, opium, isonipecaine, and every other substance neither chemically nor physically distinguishable from them and any other drugs to which the Federal laws relating to narcotic drugs may now apply; and any drug found by the Georgia State Board of Pharmacy to have an addiction-forming or addiction-sustaining liability similar to morphine or cocaine.' Code Ann. § 79A-802 (Ga.L.1967, pp. 296, 325; 1970, p. 470).
Count 2 charged the defendant with the unlawful sale of oxycodone and methadone. Oxycodone will be discussed subsequently. The state's expert witness testified that methadone was a synthetic created from an opium alkaloid; that it is a synthetic narcotic; and that it is an addictive drug.
At this point, it may be well to review several basic definitions of key words: Synthesis: 'The art or process of making or 'building up' a compound by the union of simpler compounds or of its elements; as, the synthesis of water from hydrogen and oxygen; . . .' Synthetic: 'Anything manifesting or produced by synthesis; specif., a synthetic substance, material, fabric, or the like; as an organic synthetic.' Alkaloid: 'An organic substance of alkaline properties; an organic base; . . . Among the alkaloids used as drugs are morphine, strychnine, atropine, and cocaine.' Also: 'Of or pert. to alkaloids; of the nature of an alkaloid.' Alkali: 'Originally, a soluble salt obtained from the ashes of plants, . . .' Webster's New International Dictionary, Second Edition.
In the light of the foregoing definitions, it appears that the state's expert witness was simply stating that methadone was an addictive narcotic produced from opium salts. As such, it clearly comes within the provisions of Code Ann. § 79A-802(12), which includes by definition 'any compound, manufacture, salt, derivative, mixture or preparation of opium.' The evidence supported the conviction for selling methadone.
2. Count 3 charged the defendant with the unlawful sale of oxycodone (percodan). The state's expert witness testified that oxycodone is 'a synthesis from codeine, which is an opium alkaloid . . .'. Reverting to the definitions referred to in Division 1, hereinabove, it becomes clear that the witness was simply saying that the drug in question is made from codeine, which in turn is made from opium salts. As such, it would fall within the definition of opium (codeine) and 'any compound, manufacture, salt, derivative, mixture or preparation of opium' found in Code Ann. § 79A-802(12).
Accordingly, the evidence supports the conviction of unlawfully selling oxycodone, as charged in Counts 2 and 3.
3. The court correctly charged that the state must prove every allegation of the indictment beyond a reasonable doubt and to the satisfaction of the jury before they would be authorized to convict. An additional charge that the defendant and his counsel contended he was innocent and, should the jury so find they should acquit, neither added to nor detracted from the original instructions, and does not constitute reversible error.
4. There was undisputed evidence that phentermine, the drug illegal sale of which was charged in Count 1, was sold by the defendant. The witness was asked whether 'this is a drug classified under the Dangerous Drug Act of Georgia' and replied in the affirmative. Under Code Ann. § 79A-702, a dangerous drug is one prohibited to be sold without prescription by the federal Food, Drug and Cosmetic Act, or one so declared and published by the state drug inspector. There was no objection and no question was raised in the trial court that the testimony was a conclusion or was not the highest and best evidence. It was accordingly not error for the judge to instruct the jury that phentermine came within the purview of the Act. Wilson v. State, 15 Ga. App. 632(5), 84 S.E. 81.
5. In Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 789, 12 S.E. 18, 30 it was stated: 'It surely can be no answer to witnesses who think they are not mistaken upon a question of identity, to show that another witness was mistaken upon a like question in another instance, especially if the evidence of his mistake is chiefly, or even partly, what he has been told by third persons not sworn.' In the present case, the defendant contended that he might...
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