LaDuron v. State, 2--1172A100

• Decision Date: 31 July 1973
• Docket Number: No. 2--1172A100,2--1172A100
• Parties: Jules F. LaDURON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 227

299 N.E.2d 227

157 Ind.App. 189

Jules F. LaDURON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 2--1172A100.

Court of Appeals of Indiana, Third District.

July 31, 1973.

Lapin & Koor, Muncie, for defendant-appellant.

Theo. L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., for plaintiff-appellee.

HOFFMAN, Chief Judge.

Dr. Jules F. LaDuron was tried by a jury which entered its verdict finding him 'guilty of violation of the Indiana Dangerous Drug Act, to-wit: Sale as charged in the affidavit.' The trial court entered judgment upon the verdict of the jury, and defendant, Jules F. LaDuron was sentenced to be committed to the Indiana State Farm for a term of 180 days and fined in the sum of $500. The timely motion to correct errors filed by LaDuron was overruled and this appeal followed.

The facts relevant to this appeal may be briefly summarized: A police informer, one Jules Vandelene, made four visits to the office of Dr. LaDuron between December 4, 1970, and December 11, 1970. Vandelene purchased in excess of twenty pills on each visit; a total purchase of over eighty pills during a one week period. The pills contained amphetamine and barbiturate. On each of the envelopes in which the pills were contained was written the dosage recommended by Dr. LaDuron to the effect '1 tablet 2 times a day.'

The provisions of the Indiana Dangerous Drug Act which are pertinent to this appeal are IC 1971, 16--6--8--3, Ind.Ann.Stat. § 35--3333 (Burns Cum.Supp.1972) and Acts 1961, ch. 45, § 4(5), p. 81 (Ind.Ann.Stat. § 35--3334 (Burns 1969)). ¹

Section 35--3333, supra, provides, in pertinent part, as follows:

'Acts prohibited.--The following acts, the failure to act as hereinafter set forth, and the causing of any such act or failure are hereby declared unlawful except as provided in IC 1971, 16--6--8--4 ( § 35--3334):

'(a) The sale of any dangerous drug unless

'(2) Such dangerous drug is delivered by a practitioner in good faith in the course of his practice and the immediate container in which such drug is delivered bears a label on which appears the directions for use of such drug; the name and address of such practitioner; the name of the patient; and, if such drug is prescribed for an animal, a statement of the species of the animal: Provided, nothing in this paragraph shall prohibit a practitioner from delivering professional samples of dangerous drugs in their original containers in the course of his practice when oral directions for use are given at the time of such delivery.'

Section 35--3334, supra, is the substance of the first allegation of error raised by Dr. LaDuron and provides, in pertinent part, as follows:

'Exceptions.--The provisions of paragraphs A and C of section 3 ( § 35--3333) shall not be applicable (a) to the sale of dangerous drugs to persons included in any of the classes hereinafter named, or to the agents or employees of such persons, for use in the usual course of their business or practice or in the performance of their official duties, as the case may be; or (b) to the possession of dangerous drugs by such persons or their agents or employees for such use:

'(5) Officers or employees of appropriate enforcement agencies of federal, state or local governments, pursuant to their duties in enforcing this act ( §§ 35--3331--35--3339).'

Dr. LaDuron argues that the trial court erred in refusing to give defendant's tendered Instructions Nos. 1 and 2. Such instructions, had they been given, would have instructed the jury on the definition of 'agency', and would have further instructed the jury that if they found an agency relationship to exist between the police and the informer, then LaDuron should be found not guilty.

Art. 1, § 19 of the Constitution of Indiana provides '(i)n all criminal cases whatever, the jury shall have the right to determine the law and the facts.' Similarly, IC 1971, 35--1--35--1, Ind.Ann.Stat. § 9--1805 (Burns 1956), provides, in pertinent part, as follows:

'Fifth. The court must then charge the jury, which charge, upon the request of the prosecuting attorney, the defendant or his counsel made at any time before the commencement of the argument, shall be in writing and the instructions therein contained numbered and signed by the court. In charging the jury the court must state to them all matters of law which are necessary for their information in giving their verdict. If he present the facts of the case he must inform the jury that they are the exclusive judges of all questions of fact, and that they have a right, also, to determine the law.'

The law of Indiana is long-standing that the purpose of instructions on the law in a criminal case 'is to enlighten the judgment of the jurors, but not to bind their consciences.' 8A I.L.E. Criminal Law § 512, at 179.

In Banks v. State (1901), 157 Ind. 190, at 203--204, 60 N.E. 1087, at 1092, it is stated:

'It is the right of a party in either a civil or criminal prosecution to endeavor to maintain his theory of the case, and for that purpose he should be permitted to give to the jury any and all competent evidence which tends to support the same; and where any evidence has been introduced which tends to sustain such theory, it is also his right to have the jury fully advised upon the law in relation thereto by proper instructions.' (Citing authorities.) See also: Eby v. State (1905), 165 Ind. 112, 74 N.E 890.

However, refusal of a tendered instruction is not error where such instruction is not supported by the evidence. Bivins v. State (1970), 254 Ind. 184, 258 N.E.2d 644. Also, error cannot be predicated on the refusal of a tendered instruction which incorrectly states the law. Smith v. State (1968), 250 Ind. 125, 235 N.E.2d 177.

The instruction tendered in the instant case told the jury that if they found an agency relationship to exist the defendant should be found not guilty. Even assuming Vandelene was an agent of the police, § 35--3334, supra, only makes the sale of a dangerous drug to the police lawful when such sale is for use in the performance of their official duties.

Here, there is no evidence that the sale of the drugs by Dr. LaDuron was to an agent of the police for use in the performance of their duties. The drugs were ultimately used in the performance of the duties of the police--i.e., to catch a potential lawbreaker. However, the evidence is uncontroverted that the sole purpose of the sale was for consumption. Instructions Nos. 1 and 2 tendered by Dr. LaDuron had no application to the evidence here presented. There was no error in their refusal.

Dr. LaDuron also contends,

'The trial court erred in denying Dr. LaDuron's motion to quash the amended affidavit, * * * in refusing to resolve the ambiguities in the Indiana Dangerous Drug Act, assuming ambiguities to exist, in favor of the accused, * * * in refusing to grant...