Fyke v. State

• Decision Date: 15 March 1916
• Docket Number: (No. 3980.)
• Citation: 184 S.W. 197
• Parties: FYKE v. STATE.
• Court: Texas Court of Criminal Appeals

184 S.W. 197

FYKE v. STATE.

(No. 3980.)

Court of Criminal Appeals of Texas.

March 15, 1916.

Appeal from Tarrant County Court; Jesse M. Brown, Judge.

E. D. Fyke was convicted of prescribing morphine for a habitual user thereof, and he appeals. Reversed and remanded.

Baskin, Dodge, Baskin & Eastus, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

DAVIDSON, J.

The indictment charges appellant, under article 748 of the Penal Code, with being then and there a lawfully authorized practitioner of medicine, and, as such, did then and there unlawfully prescribe morphine for the use of Maud Smith, who was then and there an habitual user of morphine, contrary to the statutes, etc. That article provides that it shall be unlawful for any practitioner of medicine, dentistry, or veterinary medicine to furnish to, or prescribe for the use of, any habitual user of the same, any cocaine or morphine, or any salts or compound of cocaine or morphine, or any preparation containing cocaine or morphine or their salts, or any opium or chloral hydrate, or any preparation containing opium or chloral hydrate, etc., "provided, however, that the provisions of this section shall not be construed to prevent any lawfully authorized practitioner of medicine from prescribing in good faith for the use of any habitual user of narcotic drugs such substances as he may deem necessary for the treatment of such habit."

Various objections are urged to the sufficiency of this indictment, all growing out of and incidental to the proviso above quoted. The indictment does not set out the proviso, or negative the fact that he was treating the woman for the morphine habit. The writer believes the indictment insufficient under the following authorities: Blair v. State, 50 Tex. Cr. R. 225, 96 S. W. 23; Blair v. State, 97 S. W. 89; Brown v. State, 74 Tex. Cr. R. 498, 168 S. W. 861; United States v. Carney (D. C.) 228 Fed. (Advance Sheet No. 2, February 10, 1916) 163. The majority of this court, however, do not agree with the writer, and thinks the indictment is sufficient, and that it is not necessary to negative this proviso in the indictment. The writer does not care to discuss the matter, inasmuch as it would be unnecessary, in view of the fact that the majority of this court does not agree with his views. It will be observed, from a casual reading of article 748 of the Penal Code, that its denunciations are leveled at practitioners, or prohibits practitioners from administering morphine to habitual users of that drug or any of the drugs mentioned. It is also discernible on the face of the statute that it was not intended to prevent practitioners from administering this drug in case of sickness, or to alleviate pain, or to cure the habit of using morphine. In other words, its provisions seem to be directed against the named physicians or practitioners with a view of prohibiting them from prescribing or administering these mentioned drugs to habitual users of the same in order to continue their use. The statute was intended to prohibit these practitioners from administering those drugs to those who are addicted to the habit of using them for the purpose of continuing that habit. It does not interdict the administration of these drugs where it is necessary to alleviate pain or to cure the habit. Therefore, if the practitioner administers it to alleviate such pain, or uses it in good faith where the party is sick, or as a means of finally curing the habit, it is not within the statutory denunciation.

Under the facts, briefly stated, Maud Smith had been a morphine fiend, addicted to the use of it, and had become emaciated and confined to her bed. Appellant, as physician, administered the morphine for two purposes: First, to relieve her of her present suffering; and, second, to cure her of the habit. The evidence of the woman, Maud Smith, makes it apparent that he succeeded in both. She testified that appellant prescribed morphine, and that she at the time was bedridden; that when she first called appellant in he had to visit her at her house, and treat her for peritonitis and swollen condition of the groins and inflammation of the bowels, and continued sick for some considerable length of time. She was not able to carry her own prescriptions and have them filled. She was not able to get out of bed, and her sister frequently went and got the prescriptions filled for her and brought the medicine to her, and she took it according to appellant's direction. He informed her what he was treating her for, and gave her other medicine in addition to morphine. It was a very painful disease she had, and she said her side is not entirely well yet. He performed operations on her. He opened up one of those abscesses on the inside of her somewhere and let out the pus in these places; once on the inside and twice on the outside in the groin at these afflicted places, and it was during that time he gave her the morphine. She says:

"Certainly the morphine had the effect of easing the pain while this treatment was going on. That is what he gave it to me for — to ease the pain. I was in that condition for some time, and during all of that time Dr. Fyke gave me two different kinds of medicine, as well as performing these operations on me that I have mentioned. I finally got up under his treatment. I am not well yet, and I...