Katzman v. Commonwealth

• Decision Date: 06 October 1910
• Parties: KATZMAN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

130 S.W. 990

140 Ky. 124

KATZMAN v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 6, 1910

Appeal from Circuit Court, Jefferson County, Criminal Division.

H Katzman was convicted of the unlawful sale of opium, and he appeals. Affirmed.

Alfred G. Krieger, for appellant.

James Breathitt, Atty. Gen., Tom B. McGregor, Asst. Atty. Gen Loraine Mix, Asst. Com. Atty., and Edward Bloomfield, for the Commonwealth.

CARROLL J.

The information filed by the commonwealth against the appellant who is a druggist, charged that he unlawfully sold at retail, not on a physician's prescription, to Will Frazier a certain quantity of poison, to wit, opium, without satisfying himself that such poison was to be used for legitimate purposes, and with the knowledge that it was intended for smoking purposes or for habitual use. It was returned under section 2630 of the Kentucky Statutes (Russell's St. § 5057), reading in part: "No person shall sell at retail any poisons except as herein provided, without affixing to the bottle, box, vessel or package containing same, a label printed or plainly written, containing the name of the article, the word 'poison' and the name and place of business of the seller, with the common name of two or more readily accessible antidotes; nor shall he deliver poison to any person without satisfying himself that such poison is to be used for legitimate purposes. A poison, in the meaning of this act, shall be any drug, chemical, or preparation which, according to standard works of medicine or materia medica, is liable to be destructive to adult human life, in quantities of sixty grains or less. It shall be the further duty of any one selling or dispensing poisons, which are known to be destructive to adult human life in quantities of five grains or less, before delivering them, to enter in a book kept for that purpose the name of the seller, the name and residence of the buyer, the name of the article, the quantity sold or disposed of, and the purpose for which it is said to be intended. *** The provisions of this section shall not apply to the dispensing of poisons in not unusual quantities, or doses, on physicians' prescriptions, nor to the sale to agriculturists or horticulturists of such articles as are commonly used by them as insecticides. ***"

It is agreed that the appellant is a retail druggist; that he sold the opium charged in the information to the purchaser for the purpose of allowing the purchaser to smoke the same; that he knew before making the sale that the purchaser was addicted to the use of opium; that it was not sold on a physician's prescription; that it is a poison, destructive to adult human life in quantities of five grains or less. It is further agreed that there was affixed to the bottle or package containing the opium a printed label, giving the name of the article, the word "poison," and the name and place of the seller, with the common name of two readily accessible antidotes, and that, before delivering the poison, appellant entered in a book kept for that purpose as required by the statute the name of the seller, the name and residence of the buyer, the name of the article, the quantity sold, and the purpose for which it was said to be intended. It will thus be observed that the offending charge against the appellant consisted in selling the drug by retail without a prescription to a person addicted to the use of it; and, this being so, the sale was not made for a legitimate purpose. The law and facts were submitted to the court without the intervention of a jury, and the appellant was found guilty of violating the statute.

A reversal is asked upon the ground that the statute is invalid upon the ground of uncertainty because it does not define with sufficient precision the words "retail" and "legitimate purposes," and because it makes an arbitrary and unreasonable discrimination in excluding from its provisions manufacturing chemists and druggists selling by wholesale, and has the effect of depriving the appellant of his liberty and property without due process of law. That it is competent for the Legislature to impose reasonable restrictions upon the sale of drugs and poisons there is no room to doubt. It has been so often held that laws controlling and regulating the sale of these articles come within the police power of the state that we do not deem it necessary to do more than cite the case of the Kentucky Board of Pharmacy v. Cassidy, 115 Ky. 690, 74 S.W. 730, 25 Ky. Law Rep. 102, and call attention to the numerous authorities therein cited. Indeed, counsel for the appellant does not attack the statute upon the ground that it was not within the power of the Legislature to enact a law regulating the sale of opium or other drugs or poisons, but upon the theory that this power was not properly exercised. If this statute is so uncertain and indefinite in describing what will constitute the offense denounced by the statute that persons of ordinary understanding cannot comprehend its meaning or determine when they have violated its provisions, then it is open to the objection urged against it. The law is well settled that a penal statute creating an offense must be sufficiently plain and exact to enable persons of ordinary intelligence to understand its provisions. As said by Justice Brewer in Chicago Railroad Co. v. Dey (C. C.) 35 F. 866, 1 L.R.A. 744: "No penal law can be sustained unless its mandates are so clearly expressed that any ordinary person can determine in advance what he may and what he may not do under it." And this principle, which was fully approved by this court in L. & N. R. Co. v. Commonwealth, 99 Ky. 132, 35 S.W. 129, 18 Ky. Law Rep. 42, 33 L.R.A. 209, 59 Am.St.Rep. 457, we have no disposition to modify or depart from.

In the argument in support of the objection mentioned, it is said that the Legislature should have defined the meaning of the words "retail" and "legitimate purposes," so that a druggist might know what quantity would constitute a sale by retail and what would or would not be considered a sale for legitimate purposes; and so that there could not be two opinions as to what these words mean when different courts or juries came to pass upon questions involving a violation of the statute. It may be admitted that, although the meaning of the words "retail" and "legitimate purposes" as used in the statute, are reasonably well understood, it is nevertheless possible that there might be difference of opinion as to whether in a given state of case the sale of a drug was by retail or for a legitimate purpose, and it is possible that in administering this statute it may occasionally happen that a druggist will be accused who claims not to know what constitutes a sale by retail or what is a legitimate use of opium; and it is also possible that different trial courts and juries may not always be harmonious in the conclusions reached upon this point. But the fact that there may be occasional doubt or want of agreement on this question cannot be allowed to invalidate the statute. If this...