People v. Bresler

Decision Date11 July 1916
CourtNew York Court of Appeals Court of Appeals


Appeal from Supreme Court, Appellate Division, First Department.

Lazar Bresler was convicted of unlawfully selling codeine, and from the order of the Appellate Division (170 App. Div. 897,154 N. Y. Supp. 1137) affirming the judgment, he appeals. Affirmed.

Benjamin Jaffe, of New York City, for appellant.

Edward Swann, Dist. Atty., of New York City, for the People.


The defendant conducted a drug store in the city of New York. He was arrested on a charge of unlawfully selling codeine on the 26th day of September, 1914. The information, so far as now material, is as follows:

‘Be It Remembered that I, Charles S. Whitman, the district attorney of the county of New York, by this information, accuse the abovenamed defendant of the crime of unlawfully selling codeine, committed as follows: At the City of New York, in the County of New York, the said defendant, on the 26th day of September, 1914, unlawfully sold at retail to one whose name is to me unknown, and gave away a quantity of codeine without having first received a written prescription from and signed by a duly licensed physician, druggist, or dentist, containing the name and address and age of the person to whom and the date on which said prescription was issued.’

He was tried before a Court of Special Sessions of the city of New York and found guilty. An appeal was taken to the Appellate Division of the Supreme Court, where the judgment was affirmed by a divided court, and an appeal from such affirmance is taken to this court.

The statute alleged to have been violated is section 246 of the Public Health Law (Consol. Laws, c. 45), as added by chapter 363, Laws of 1914, which provides, so far as material, as follows:

‘It shall be unlawful for any person to sell at retail or give away any of the drugs, their salts, derivatives or preparations mentioned in section two hundred and forty-five of this chapter except as herein provided without first receiving a written prescription signed by a duly licensed physician, veterinarian or dentist. The prescription must contain substantially the following: the name in full of the physician, veterinarian or dentist issuing such prescription, his office address, his office hours, and telephone, and the name, age and address of the person to whom and date on which such prescription is issued. * * *’

The sale at retail or giving away of codeine is prohibited by said section, except as therein provided.

The evidence on the trial consisted of the testimony of two persons, one an investigator, who examined the prescription files of the defendant, and who testified that he found thereon a prescription calling for codeine. His further testimony so far as material is as follows:

‘Q. Did you have a conversation with this defendant in reference to this prescription? A. I did. Q. What was it? A. I asked him if he had dispensed and compounded that prescription and he said he had. I asked him who the prescription was for, and he said he didn't know, and that the name and address wasn't on the prescription. * * * Q. As a matter of fact Mr. Dattelbaum, didn't Mr. Bresler tell you at that time that the prescription might not have been filled by him but by one of his clerks in his absence? A. No: I asked him about that prescription and several others, and those which he said he personally compounded I put aside. Q. Did he tell you he compounded that prescription? A. Yes, sir; that prescription he had compounded and dispensed.’

The other witness was the physician who wrote the prescription. He testified in substance that he had just come back from Europe and was not familiar with the law.

[1][2] The prescription did not comply with the statute. The only question considered in the Appellate Division was whether the testimony received at the trial was sufficient to show a violation of the statute. It was claimed by the defendant that compounding and dispensing a prescription is not the sale at retail or giving away of the drugs included therein. We do not think that the question is presented by the record in this court in a way to permit of its consideration by us. The jurisdiction of this court except where the judgment is of death is limited to the review of question of law. Const. art. 6, § 9. If the question of law is to be considered in this court, it should be presented and considered at the trial. If the defendant had suggested at the trial in the Special Sessions that dispensing a prescription does not mean the sale at retail or giving away of the drugs included therein, an opportunity doubtless would have been given by the court to the people to supply testimony to show that the prescription was not only compounded by the defendant, but was actually sold at retail, or given away by him to the person who presented the same to him. This court is without power to reverse a judgment on the ground that there is no evidence to sustain the verdict or decision where the question is not raised by an exception, even if it has general jurisdiction of the appeal. Jurisdiction of the Court of Appeals, Cardozo, § 25, p. 43; People v. Sherlock, 166 N. Y. 180, 59 N. E. 830;People v. Huson, 187 N. Y. 97, 79 N. E. 835;People v. Shattuck, 194 N. Y. 424, 87 N. E. 775;People v. Cummins, 209 N. Y. 283, 103 N. E. 169;Seeman v. Levine, 205 N. Y. 514, 99 N. E. 158, reargument denied, 206 N. Y. 672, 99 N. E. 1118.

[3] For the purpose of reversing a judgment the Court of Appeals will consider no question that was not urged or considered in the court below. Jurisdiction of Court of Appeals, Cardozo, § 27, p. 47, and cases cited; Supplement, p. 292, and cases cited; Dodge v. Cornelius, 168 N. Y. 242, 245, 61 N. E. 244;MacArdell v. Olcott, 189 N. Y. 368, 82 N. E. 161;Kramer v. Brooklyn Heights R. R. Co., 190 N. Y. 310, 83 N. E. 35.

In People v. Sherlock, 166 N. Y. 182, 59 N. E. 830, supra, the defendant was tried in the Court of Special Sessions of the Peace of the city and county of New York. On appeal to this court from a judgment of the Appellate Division of the Supreme Court affirming the judgment of the Court of Special Sessions it was held:

‘The first ground on which it is sought to reverse the judgment below is that the trial court in its charge invaded the province of the jury, which, under section 8, art. 1, of the constitution, is, in criminal prosecutions or indictments for libel, authorized to determine the law and the fact. We are of the opinion that the question is not properly before us...

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