McKenzie v. State
| Decision Date | 22 April 1964 |
| Docket Number | No. 36777,36777 |
| Citation | 383 S.W.2d 177 |
| Parties | Dr. Stuart G. McKENZIE, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
John J. C. O'Shea, Lubbock, Blanchard, Clifford, Gilkerson & Smith, Lubbock (on
appeal only) by George Gilkerson, Lubbock, for appellant.
Fred E. West, County Atty., Broadus A. Spivey and Wm. Quinn Brackett, Asst. County Attys., Lubbock, and Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
The conviction is under Art. 726d, Vernon's Ann.P.C., for the unlawful delivery of a dangerous drug; the punishment, twenty-one months in jail and a fine of $3,000.
Appellant was a duly licensed and practicing doctor of osteopathy in the city of Lubbock. In November, 1962, the state's witness Kenneth Decker, who was an undercover agent for the narcotics division of the Department of Public Safety, went to Lubbock to investigate narcotics violations in the city. On November 15, Decker went to the appellant's office on 34th Street with another person who introduced him to appellant. At such time, both Decker and his companion purchased some pills (bennies) from appellant. On November 21, Decker returned to appellant's office. He testified that immediately upon his arrival in the office appellant appeared and asked that he come to the back. They proceeded to a back office and after appellant shut the door he said: "What do you want?" and Decker replied: "Well, what do you have?," to which appellant replied: Decker replied: "* * * about a hundred," and appellant then reached over on a table, got a bottle of tablets and a small box, poured the box full of tablets, and asked the witness his name. Decker gave him a fictitious name, which appellant wrote on the box and then delivered the box to Decker, who in turn gave appellant $5. Decker stated that in the conversation appellant said 'he was having to be a little more careful * * * he was having to pull up some on his dealing because a little heat was on * * *,' and that appellant did not discuss the witness's physical condition or examine him at the time the tablets were delivered. He further identified as state's exhibit 1 the box of ninety-four tablets that appellant delivered to him, which bore the following label: The witness further testified that some two or three days after November 21, he returned to appellant's office but did not purchase anything from him when appellant stated 'he wasn't doing any business * * * the heat was on and he was going to have to pull up * * * for awhile * * *.'
Decker testified that it was his duty as an undercover agent to obtain evidence in the commission of crimes and that in his dealings with appellant there was no doctor-patient relation but only that of buyer and seller. He further stated that on the occasion in question he was accompanied by Agent Bob Richards and Deputy Sheriff Jack Bryant, who remained outside in an automobile with an electronic receiver and tape recorder which recorded, by radio signal, the conversation between him (Decker) and the appellant, through a portable minature transmitter concealed in the witness's pocket. At the trial, the tape recording was played to the jury and was introduced in evidence after being identified by Agent Richards as fairly representing the conversation which he had heard over the transmitter between appellant and Agent Decker on November 21.
It was shown that the box of ninety-four tablets delivered by appellant to Agent Decker was taken directly by him to Chemist Charles Beardsley, of the Texas Department of Public Safety, for examination. Chemist Beardsley identified the tablets as those sold under the trade name of 'obedrin' for weight control and appetite appeasers. He stated that he made a spectrophotometric analysis of four of the tablets picked at random, which revealed that they contained amphetamine and barbituric acid derivative.
Testifying in his own behalf, appellant stated that on November 21, Decker came to his office and purported to be a man who traveled and was in need of something to keep him awake. Appellant stated that on such occasion and in the course of his practice he dispensed the tablets in good faith, as medication, to Decker, who held himself out as a patient.
Witnesses were also called by appellant who testified that his reputation for being a peaceable and law-abiding citizen was good.
The court in his charge defined the terms "dangerous drug," "delivery," "patient," and "practitioner," substantially as defined in Art. 726d, supra, and instructed the jury that under the statute 'the delivery of any dangerous drug is unlawful unless delivered by a practitioner 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, and the name and address of the patient.'
Appellant challenges the sufficiency of the evidence to support the conviction, upon three grounds:
It is first contended that because Agent Decker was acting as an agent and employee of the State of Texas in the transaction, no offense was committed, by virtue of Sec. 4 of Art. 726d, supra, which provides, in part, that:
'The provisions of paragraphs (a) and (d) of Section 3 shall not be applicable:
'(a) As to the delivery of dangerous drugs to persons included in any of the classes hereinafter named * * * for use in the usual course of their business or practice or in the performance of their official duties, as the case may be * * * (b) (5) Officers or employees of Federal, State, or local government * * *.'
We are unable to agree that this provision of the statute was intended by the legislature to be applicable to the delivery of a dangerous drug to an undercover agent of the Department of Public Safety who, at the time, was engaged in the detection of narcotic law violations in this...
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