Lowery v. State

• Decision Date: 29 March 1916
• Docket Number: (No. 4010.)
• Parties: LOWERY v. STATE.
• Court: Texas Court of Criminal Appeals

185 S.W. 7

LOWERY v. STATE.

(No. 4010.)

Court of Criminal Appeals of Texas.

March 29, 1916.

Rehearing Denied April 19, 1916.

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

T. A. Lowery was convicted for unlawfully prescribing morphine to an habitual user, and he appeals. Affirmed.

Mays & Mays, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted for unlawfully prescribing morphine to an habitual user and assessed the lowest punishment, a fine of $25.

Appellant contends that the indictment is fatally defective, in that, in substance, there is no proper allegation therein negativing the proviso.

The statute (P. C. art. 748) is:

"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; and it shall also be unlawful for any practitioner of dentistry to prescribe any of the foregoing substances for the use of any person not under his treatment in the regular practice of his profession, or for any practitioner of veterinary medicine to prescribe any of the foregoing substances for the use of any human being: 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."

The indictment, outside of the proper preliminary and concluding allegations, is:

That appellant in said state and county, on December 15, 1915, "was then and there a lawfully authorized practitioner of medicine, and, as such, did then and there unlawfully prescribe morphine for the use of Josie Evans, who was then and there an habitual user of morphine."

The same question as to the sufficiency of the indictment in the case of E. D. Fyke v. State, 184 S. W. 197, from the same county was passed upon therein by us on March 15th, instant, that is raised in this case, and we there held that the indictment was sufficient. We did not there discuss the question, nor cite the authorities. We deem it best to now do so in this case, which is equally applicable to the Fyke Case.

There are two rules, each fully and well established — one, that when a statute prescribes an offense, and also therein contains an exception or proviso which is made a constituent or necessary part of the offense, then such exception or proviso must be negatived by proper allegation in the indictment or information to make a good pleading. The second is that where the exception or proviso is not made a constituent or necessary part of the offense by the statute itself, then it is wholly unnecessary for the indictment or information to negative such exception or proviso. In that event, the exception or proviso is a matter of defense only. And in both rules, it makes no difference whether the exception or proviso is in the same, or some other article of the statute. These two rules are not always kept clear in the decisions. It is sometimes held by decisions that simply because the exception or proviso is in the same article, or what is called the "enacting" article of the statute, it must be negatived, regardless of whether or not it is made a constituent or necessary part of the offense. Herein is where the seeming conflict in the decisions arises.

The second, and not the first, rule above, is applicable in this case to the statute under which this prosecution and conviction was had. The proviso in said statute in no proper sense is made either a constituent or necessary part of the offense, but instead, is made a matter of defense only. The statute in plain terms prescribes: It shall be unlawful for any practitioner of medicine, dentistry, or veterinary medicine, to prescribe for the use of any habitual user of the same, any morphine. That is the offense. Then, as a matter of defense for the lawfully authorized practitioner of medicine only, the statute further prescribes:

"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."

The case of Brown v. State, 74 Tex. Cr. R. 498, 168 S. W. 861, is exactly in point in this case. We there cited some of the authorities, among them, U. S. v. Cook, 84 U. S. (17 Wall.) 168, 21 L. Ed. 538, and Slack v. State, 61 Tex. Cr. R. 372, 136 S. W. 1073, and also Ann. Cas. 1913B, 112. In the Slack Case, in the opinion of Judge Harper on rehearing, we cited and quoted from many decisions directly in point on the question, completely establishing and sustaining the second rule hereinabove stated. Ordinarily, we would not again cite and quote these authorities, but in this instance, we will again cite and quote some of them, as well as cite some others.

This court, through Judge Ramsey, in Newman v. State, 58 Tex. Cr. R. 228, 124 S. W. 956, expressly stated, in substance, that the second rule above stated was recognized and held by this court, and cited Mosely v. State, 18 Tex. App. 311, Hodges v. State, 44 Tex. Cr. R. 444, 72 S. W. 179, Wilkerson v. State, 44 Tex. Cr. R. 455, 72 S. W. 850, Osborne v. State, 42 Tex. Cr. R. 557, 61 S. W. 491, and Hankins v. State, 72 S. W. 191. There are also many other decisions of this court to the same effect cited by Judge Harper in said Slack Case, and also in said Brown Case, supra. We will not again here cite those same cases. We now cite and quote from some of the decisions cited and quoted by Judge Harper in said Slack Case.

In United States v. Cook, supra, it is held:

"Commentators and judges have sometimes been led into error by supposing that the words `enacting clause,' as frequently employed, mean the section of the statute defining the offense, as contradistinguished from a subsequent section in the same statute, which is a misapprehension of the term, as the only real question in the case is whether the exception is so incorporated with the substance of the clause defining the offense as to constitute a material part of the description of the acts, omission, or other ingredients which constitute the offense. Such an offense must be accurately and clearly described, and if the exception is so incorporated with the clause describing the offense that it becomes in fact a part of the description, then it cannot be omitted in the pleading; but if it is not so incorporated with the clause defining the offense, then it is matter of defense and must be shown by the other party, though it be in the same section or even in the succeeding sentence. 2 Lead. Cr. Cas. (2d Ed.) 12; Vavasour v. Ormrod, 9 Dowl. & Ryl. 597; Spieres v. Parker, 1 T. R. 141; Commonwealth v. Bean, 14 Gray (Mass.) 52; 1 Stark Cr. Pl. 246."

In State v. Ah Chew, 16 Nev. 50, 40 Am. Rep. 488, it is held:

"From a careful examination of all the authorities upon this subject, we are of opinion that it is only necessary in an indictment for a statutory offense to negative an exception to the statute, when that exception is such as to render the negative of it an essential part of the definition or description of the offense charged. It is the nature of the exception, and not its locality, that determines the question whether it should be stated in the indictment or not. The question is, as stated in State v. Abbey [29 Vt. 66, 67 Am. Dec. 754], `whether the exception is so incorporated with, and becomes a part of the enactment as to constitute a part of the definition or description of the offense; for it is immaterial whether the exception or proviso be contained in the enacting clause or section, or be introduced in a different manner.' `It is the nature of the exception, and not its location,' which determines the question. Neither does the question depend upon any distinction between the words `provided' or `except' as they may be used in the statute."

See, also, Metzker v. People, 14 Ill. 101; Stanglein v. State, 17 Ohio St. 453; State v. Miller, 24 Conn. 522; State v. McGlynn, 34 N. H. 422; State v. Wade, 34 N. H. 495.

In Territory v. Burns, 6 Mont. 74, 9 Pac. 432, it is held:

"It is a rule of pleading in criminal law that the indictment should set forth all that is necessary to constitute a complete description of the offense charged. This is especially true of statutory offenses, which is the character of the misdemeanor alleged in the above indictment. The indictment in such case should state all the ingredients of which the offense charged is constituted as contained in the statute which declares and defines such offense. When that is done, the prosecution has set forth a prima facie case, which is all that the law requires.

"When an exception is stated in the statute, it is not necessary to negative such exception unless it is a constituent part of the definition of the offense. The exception must be a constituent or an ingredient of the offense declared by the statute, in order to require that it shall be negatived by the indictment. It would appear to have formerly been the rule, that, `if the exceptions themselves are stated in the enacting clause, it will be necessary to negative them in order that the description of the crime may in all respects correspond with the statute.'

"But, however correct or otherwise this view may be, the current of authority now is that it makes no difference in what part of the statute the exception may appear; whether in what is commonly called the enacting clause or not. The criterion which determines the...