Fuller v. State
| Decision Date | 27 August 1957 |
| Docket Number | 6 Div. 460 |
| Parties | Daniel Webster FULLER v. STATE. |
| Court | Alabama Court of Appeals |
C. E. Huey, Birmingham, for appellant.
John Patterson, Atty. Gen., and Jas. W. Webb, Asst. Atty. Gen., for the State.
The indictment, omitting the formal parts, charged that defendant on or about the 20th day of April, 1956, did unlawfully possess seven and one-quarter grains of morphine. The jury returned a verdict of guilty. This was defendant's third conviction for violation of the State narcotics laws. He was sentenced, under the provisions of Section 255, Title 22, Code 1940, to the penitentiary for a term of ten years.
The State presented evidence by Federal narcotic agents tending to show that the defendant did on the 20th day of April, 1956, purchase and possess one quart of paregoric, which Mr. Shill, a chemist for the State Department of Toxicology and Criminal Investigation, testified contained one-fifth of a grain of morphine per fluid ounce, or a total content of 6.4 grains.
At the conclusion of the State's testimony in chief the defendant moved to exclude the evidence on two grounds: (1) because of a variance between the averments of the indictment and the proof submitted, and (2) that defendant comes within the exemption provided for in Section 243 of Title 22, Code, as follows: 'Except as otherwise in this chapter specifically provided, this chapter shall not apply to the following cases: (1) Prescribing, administering, dispensing, or selling at retail of any medicinal preparation that contains in one fluid ounce, * * * (b) not more than one-quarter of a grain of morphine or of any of its salts.'
The court overruled the motion.
No evidence was submitted in defendant's behalf.
As to appellant's first ground of motion, it is sufficient to prove so much of an indictment as shows that the defendant has committed a substantial offense specified therein. Porter v. State, 58 Ala. 66; State v. Murphy, 6 Ala. 845; Blakeney v. State, 244 Ala. 262, 13 So.2d 430. The fact that the indictment alleged that defendant possessed seven and one-quarter grains of morphine, while the proof showed he possessed six and four-tenths grains did not constitute a variance.
As to the second ground of motion, defendant was charged with possession of morphine.
There was no evidence tending to show that he was 'prescribing, administering, dispensing or selling at retail of any medicinal preparation,' etc., as...
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House v. State
...See also Owens v. State, 291 Ala. 107, 278 So.2d 693 (1973); Taylor v. State, 47 Ala.App. 285, 253 So.2d 354 (1971); Fuller v. State, 39 Ala.App. 219, 96 So.2d 829 (1957); Blakeney v. State, 244 Ala. 262, 13 So.2d 430 (1943); Tyson v. State, 361 So.2d 1182, 1188 (Ala.Cr.App.1978). But see G......
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Knox v. State, 8 Div. 245
...of criminal statutes discussed by Simpson, J., in Dorgan v. State, 29 Ala.App. 362, 196 So. 160. From a reading of Fuller v. State, 39 Ala.App. 219, 96 So.2d 829, it is obvious that Code 1940, T. 22, §§ 232--255 was so drafted as to put the burden of coming forth with prescriptions on the d......
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Griffin v. State
...Stone v. State, 55 Ala.App. 663, 318 So.2d 359 (1975); Parks v. State, 46 Ala.App. 722, 248 So.2d 761 (1971); and Fuller v. State, 39 Ala.App. 219, 96 So.2d 829 (1957). Because there is no substantial variance between the evidence elicited and the indictment, and because the case was commen......
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Owens v. State
...the accused committed a substantial offense specified in the indictment. Taylor v. State, 47 Ala.App. 285, 253 So.2d 354; Fuller v. State, 39 Ala.App. 219, 96 So.2d 829. Defendant also alleges error in the trial court's refusal to give to the jury his requested charges numbered 12, 13, and ......