Jones v. State

• Decision Date: 22 January 1958
• Docket Number: No. A-12501,A-12501
• Citation: 321 P.2d 432
• Parties: Rex Talmadge JONES, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 432

321 P.2d 432

Rex Talmadge JONES, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12501.

Criminal Court of Appeals of Oklahoma.

Jan. 22, 1958.

Syllabus by the Court.

1. By laws 1955, p. 358, § 1 (63 O.S.1957 Supp. § 425) the uniform narcotic drug act of Oklahoma (63 O.S.1951 §§ 401 to 424, as amended by Chap. 10a and 10d, 63 O.S.L.1953) was amended to provide that the rules and regulations of the Secretary of the Treasury of the United States theretofore prescribed under authority of Public Law No. 729 of the Eighty-third Congress of the United States [26 U.S.C.A. (I.R.C.1954) §§ 4704(b)(1), 4708(c)(1, 2), 4724(b)(5), 4773], relating to oral prescriptions of defined narcotic drugs and compounds, should have full force and effect in Oklahoma as laws thereof. Held, that the 1955 provisions referred to could not have the effect of supplanting or limiting the plain provision of section 408 of Title 63, but the rules and regulations of the Secretary of the Treasury of the United States that were prior to the 1955 provision prescribed under authority of Public Law No. 729 of the Eighty-third Congress of the United States relating to oral prescriptions of defined narcotic drugs and compounds, would have full force and effect in Oklahoma as an aid in the enforcement of the provisions of 63 O.S.A. §§ 401-424.

2. In an indictment or information for committing a statutory offense, the indictment or information may describe the offense in the general language of the statute; but the description must be accomplished by a statement of the particulars essential to constitute the crime or offense with which the defendant is charged, and acquaint the accused with what he must meet upon the trial.

3. An indictment or information for a single sale of 12 ounces of paregoric to one person, it being alleged that paregoric was a narcotic and sold within a forty-eight consecutive hour period, and said amount of paregoric containing in excess of four grains of opium, was defective for failure to allege the name of the person or persons to whom such sale was made. If the name of such person or persons are unknown, then this fact must be stated.

4. Where the doing of a particular act is a crime regardless of the consent of anyone, if the criminal intent originates in the mind of the accused, the fact that peace officers furnish an opportunity for or aid in the commission of the crime, in order to secure evidence necessary to prosecute accused therefor, constitutes no defense.

5. Where officers from the narcotics enforcement division of the office of the Attorney General furnish money to a decoy with which to purchase narcotics and the decoy purchases at one time 12 ounces of paregoric from the accused, shown to have contained more than four grains of opium, or a total of 30.4 grains of opium, the fact that accused asserts that the decoy enticed him to make sale by claiming to have stomach trouble, if true, would not constitute entrapment.

6. The general rule is that when a defendant is put upon trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and evidence of other crimes, either prior or subsequent to the offense for which he is on trial, is inadmissible.

7. The evidence of other crimes in order to be admissible must come within one of the well recognized exceptions to the rule. That is, tends to establish (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; and, (5) the identity of a person charged with the commission of the crime on trial.

8. Where accused is charged with the unlawful sale of 12 ounces of paregoric on October 1, 1956, containing more than four grains of opium in violation of the provisions of 63 O.S.1951 § 408, evidence of alleged prior distinct sales of paregoric containing more than four grains of opium on September 4, 10, and 24, 1956, was improper and inadmissible as not coming within any of the exceptions to the general rule stated in paragraph seven above.

Appeal from the District Court of Tulsa County; Leslie Webb, Judge.

Rex Talmadge Jones was convicted of the crime of violating the narcotic laws of the State, and appeals. Reversed and remanded for new trial.

O. C. Lassiter, Tulsa, Dick Jones, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., for defendant in error.

POWELL, Judge.

The defendant, Rex Talmadge Jones, was charged in the district court of Tulsa County with the violation of the narcotic laws of the State, to-wit: 63 O.S.1951 § 408. He was tried before a jury and convicted, but the jury left the punishment to be assessed by the court, who imposed a sentence of two years in the Oklahoma State Penitentiary, and a fine of $500.

For reversal numberous specifications of error are advanced, as will hereinafter appear.

It is first urged that the information was insufficient to state an offense under the laws of Oklahoma. The pertinent portion reads:

'* * * that Rex Talmadge Jones on the 1st day of October, A.D.1956, in Tulsa County, State of Oklahoma, and within the jurisdiction of this court, did unlawfully, wilfully, wrongfully and feloniously, sell and dispense 12 ounces of paregoric to one person, paregoric being a narcotic, within a 48 consecutive hours period, said 12 ounces of paregoric containing in excess of four grains of opium, contrary to the form of the statutes', etc.

The basis for prosecution is contained in the provisions of 63 O.S.1951 § 408, which are rather lengthy and may and should be read. Sufficient to say, this statute prohibits selling at retail any medical preparation that contains in one fluid ounce more than two grains of opium, or to furnish any one person, within any 48 consecutive hours, any preparation containing more than four grains of opium, except as provided by such act.

Counsel for defendant argues that 'another statute of equal or greater importance which was overlooked by the prosecution, and not called to the attention of the trial court, was one adopted in 1955 which in effect substituted the federal rules and regulations regulating narcotic drugs for the laws of Oklahoma'.

This Act may be found as Tit. 63 O.S.1957 Supp. § 425, and reads:

'In order to accomplish effective enforcement of the Uniform Narcotic Drug Act of Oklahoma (63 O.S.1951 Sections 401 to 424, as amended by Chapters 10a and 10d, Title 63, Oklahoma Session Laws 1953), the rules and regulations of the Secretary of the Treasury of the United States heretofore prescribed under authority of Public Law No. 729 of the Eighty-third Congress of the United States, relating to oral prescriptions of defined narcotic drugs and compounds, shall have full force and effect in Oklahoma as laws thereof. Laws 1955, p. 358, § 1.'

As we view the matter, the 1955 provision above quoted could not have the effect of supplanting or limiting the plain provisions of Section 408 of the Title, but the rules and regulations of the Secretary of the Treasury of the United States that were prior to the 1955 provision prescribed under authority of Public Law No. 729 of the Eighty-third Congress of the United States, 26 U.S.C.A. (I.R.C.1954) §§ 4704(b)(1), 4705(c)(1, 2), 4724(b)(5), 4773, relating to oral prescriptions of defined narcotic drugs and compounds, would have full force and effect in Oklahoma as an aid in the enforcement of the provisions of 63 O.S.A. §§ 401-424.

The rules and regulations of the Secretary of the Treasury do not appear in the record. They are not quoted in the statute, and apparently were not relied on by the State, and counsel for the State in his brief denies any knowledge of what the rules and regulations of the Secretary of the Treasury of the United States with respect to narcotics purports to set forth The defendant did not tender in evidence the rules and regulations in question. Under the state of the record, no further consideration will be given to such rules and regulations.

It seems to us that counsel should be able to rely on the constitutional provisions and statutes, State and Federal, to determine what the law is and that where regulations and rulings of a department of the State or Federal government are relied on, the party pleading must prove them. Which is to say, if the State had plead a violation of the regulations in question in connection with 63 O.S.1951 § 408, then the State would have been called upon to prove the germane provisions of the regulations, if any. While on the other hand, if the defendant felt that the regulations would be beneficial to his defense, he should have tendered in evidence, after proper identification, such provisions as he felt germane to his defense.

The information tends to allege a violation of 63 O.S.1951 § 408, but the defense claims that in order to have charged defendant with the violation of the provisions of the section of the statute mentioned, the information must have alleged the name of the person to whom accused made the sale, or if the name were unknown, that fact should have been stated; and it is also argued that the consideration for the alleged sale, and a delivery, should have been stated.

We note that defendant did not demur to the information, but that the sufficiency thereof was first challenged by an objection to the introduction of evidence. Under authority of Huckaby v. State, 22 Okl.Cr. 376, 211 P. 525, this was sufficient.

As applied to intoxicating liquor cases the questions here raised as to the sale of narcotics early received the attention of this court in a number of cases. See: Weston v. Territory, 1 Okl.Cr. 407, 98 P. 360; Fletcher v. State, 2 Okl.Cr. 300, 101 P. 599, 23 L.R.A.,N.S., 581; Banks v. State, 2 Okl.Cr. 339, 101 P. 610; Smith v. State, 4 Okl.Cr. 328, 111 P. 960....