Merritt v. State
| Decision Date | 03 June 1964 |
| Docket Number | No. 30500,30500 |
| Citation | 198 N.E.2d 867,245 Ind. 362 |
| Parties | James MERRITT, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
John G. Bunner, Evansville, for appellant.
Edwin K. Steers, Atty. Gen., Carl E. Van Dorn, Asst. Atty. Gen., Indianapolis, for appellee.
This is an appeal from a judgment of the Vanderburgh Circuit Court convicting the appellant of the offense of violating Section 17 of the Indiana Uniform Narcotic Drug Act, which provides that it shall be unlawful for any person to obtain or attempt to obtain a narcotic drug by fraud, deceit or the use of a false name. The appellant was charged as follows:
'FRANK M. FREIHAUT being duly sworn upon his oath says that JAMES MERRITT on or about the 7th day of JUNE A.D., 1962, at said County and State as affiant verily believes did then and there unlawfully, feloniously, knowingly and falsely by the use of a false name and the giving of a false address which was in the following tenor, to-wit: Robert James, 511 Canal, obtain a certain narcotic drug, to-wit: one (1) two ounce bottle of paregoric, a compound containing opium.
'Then and there being contrary to the form of the Statute, in such cases made and provided, and against the peace and dignity of the State of Indiana.'
A motion to quash the charge was filed, which contended that the court judicially knows that paregoric contains less than two grains of opium, which is exempt under the Indiana Act. [Butns' § 10-3526 (1963 Supp.)]. The motion to quash was overruled, the appellant was tried and convicted, and the motion for a new trial was likewise overruled. The errors properly presented for review on this appeal are presented by the overruling of the motion for a new trial, which specified the overruling of the motion to quash, and that the verdict was contrary to law, the evidence was insufficient to sustain the same, and also specified the giving and the refusal to give certain instructions.
That part of the statute [Burns' § 10-3535 (1956 Repl.)] under which the appellant was prosecuted reads as follows:
* * *
* * *
'(7) The provisions of this section shall apply to all transactions relating to narcotic drugs under the provisions of section eight [§ 10-3526] of this act, in the same way as they apply to transactions under all other sections.' (Our italics)
The evidence is undisputed that the appellant went into the Deeg drug store in Evansville, Indiana on June 7, 1962 and purchased a two ounce bottle of paregoric for sixty cents. The law provides [Burns' § 10-3527 (1956 Repl.)] that the druggist shall keep a record of all narcotic drugs sold and dispensed. Although it does not require that the record be signed by the purchaser, in this case this drug store kept a record to be so signed. The appellant signed the record, using the false name of Robert James. At the time of the purchase, Mrs. Gilbert, the clerk, informed Mr. Deeg, the druggist, of appellant's paregoric order, and Mr. Deeg gave the paregoric to the clerk, who delivered it to the appellant. Mr. Deeg knew the appellant and knew his correct name at the time he delivered the paregoric.
Section 8 of the Act [Acts of 1935, ch. 280, § 8, p. 1351, as last amended by the Acts of 1961, ch. 90, § 4, p. 169, being Burns' § 10-3526 (1963 Supp.)] provides for certain qualified exemptions and the portions pertinent hereto read as follows:
'10-3526. preparations exempted.--Except as otherwise in this act specifically provided, this act shall not apply to the following cases:
'(1) Prescribing, administering, dispensing, by or under the direction of a licensed physician, veterinarian, or dentist, or selling at retail by a licensed apothecary of any medicinal preparation that contains in one fluid ounce, or if a solid or semi-solid preparation, in one avoirdupois ounce, (a) not more than two grains of opium, (b) not more than one-quarter [1/4] of a grain of morphine or of any of its salts, (c) not more than one grain of codeine or any of its salts, (d) not more than one-half [1/2] of a grain of extract of Cannabis; nor more than one-half [1/2] of a grain of any more potent derivative or preparation of Cannabis; (e) not more than one-quarter [1/4] of a grain of isonipecaine or any of its salts; (f) and not more than one of the drugs named above in clauses (a), (b), (c), (d), and (e).
'(2) Prescribing, administering, dispensing, by or under the direction of a licensed physician, veterinarian or dentist, or selling at retail by a licensed apothecary of liniments, ointments, and other preparations, that are susceptible of external use only and that contain narcotic drugs in such combinations as prevent their being readily extracted from such liniments, ointments, or preparations, except that this shall apply to all liniments, ointments, and other preparations, that contain coca leaves in any quantity or combination.' (Our italics)
Viewing the Uniform Narcotic Act as a whole, it is obvious that it was the intent of the legislature that in certain instances it is not necessary to secure a physician's prescription to buy certain narcotic drugs with a minimum content of opium therein specified, and that paregoric containing less than two grains of opium was within that group and could be obtained without a prescription. However, it is also apparent that even though certain drugs containing a low percentage of a narcotic might be purchased without a physician's prescription, the law still required that a record be kept of the purchases and sales and to whom made.
'Narcotic drugs' [Burns' § 10-3519 (1963 Supp.)], as defined in the act, reads as follows:
'(14) (a) 'Narcotic drugs' means any of the following whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:
'1. Opium, isonipecaine, coca leaves, cannabis and opiate;
'2. Any compound, manufacture, salt, derivative, or preparation of opium, isonipecaine, coca leaves or opiate; and
'3. Any substance and any compound, manufacture, salt, derivative, or preparation thereof which is chemically identical with any of the substances referred to in paragraphs 1 and 2 immediately above.
'(b) The term 'narcotic drugs' shall also mean, but shall not be limited to, any drug which the Indiana Board of pharmacy, after reasonable notice and opportunity for hearing, shall determine has an addiction-forming or addiction-sustaining quality similar to that of any narcotic drug as defined in subsection (a) of this section. In the rules and regulations adopted by the board under the provisions of chapter 120 of the Acts of 1945, as said act may hereafter be amended, the Indiana board of pharmacy shall issue a list of such narcotic drugs and proclaim them to be narcotic drugs as defined by this act. In the determination that any such drug is a narcotic drug, the pharmacy board may take into consideration the fact that such drug has been determined to be a narcotic drug by the federal narcotics law, as [or] has been determined to be a narcotic drug by 'Presidential Proclamation."
Under the section defining a 'narcotic drug', paregoric containing two grains or less of opium is not excluded as a narcotic drug within the definition. Under Burns' § 10-3535 (1956 Repl.), the obtaining of a 'narcotic drug' by fraud, deceit, or 'by the use of a false name' is covered as a violation of the act. This is made all the clearer when we look at paragraph 7 of that section, which states in substance that the...
To continue reading
Request your trial
-
White v. State, 2--673A142
...chemical identity, characteristics, ingredients, or derivation so as to bring it within the Act's definition. See, Merritt v. State (1964), 245 Ind. 362, 198 N.E.2d 867 (Paregoric, shown to contain Stanley v. State (1969), 252 Ind. 37, 245 N.E.2d 149 (testimony establishing substance (Dilau......
-
State v. Williams
...is of first impression before this court. Similar problems have, however, been considered in other jurisdictions. In Merritt v. State, 245 Ind. 362, 198 N.E.2d 867, defendant was charged under the Uniform Narcotic Drug Act of obtaining an 'exempt' narcotic drug, paregoric containing opium, ......
-
Cronin v. State, 83-169
...573, 494 P.2d 773; State v. McFall, 5 Ariz.App. 539, 428 P.2d 1013; State v. Blea, 20 Utah 2d 133, 434 P.2d 446; and, Merritt v. State, 245 Ind. 362, 198 N.E.2d 867. Others of interest are: State v. Lee, 62 Wash.2d 228, 382 P.2d 491; People v. Oviedo, 106 Cal.App.2d 690, 235 P.2d 612; Geuri......
-
Cochrane v. Lovett
...objection must be 'properly presented.' Also see, Steiner v. Goodwin (1966), 138 Ind.App. 546, 215 N.E.2d 361; Merritt v. State (1964), 245 Ind. 362, 369, 198 N.E.2d 867. With no precise Indiana authority to guide us we turn to the language of TR. 51(A) . . . and find that it is mandatory. ......