People v. Downes

• Decision Date: 29 April 1975
• Docket Number: N,No. 13,13
• Citation: 394 Mich. 17,228 N.W.2d 212
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George O. DOWNES, Defendant-Appellant. ov. Term. 394 Mich. 17, 228 N.W.2d 212
• Court: Michigan Supreme Court

Page 212

228 N.W.2d 212

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George O. DOWNES, Defendant-Appellant.

No. 13, Nov. Term.

394 Mich. 17, 228 N.W.2d 212

Supreme Court of Michigan.

April 29, 1975.

William L. Cahalan, Pros. Atty., Patricia J. Boyle, Principal Atty., Research Training and Appeals, Ronald Weitzman, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Samuel W. Barr, P.C., Detroit, Samuel W. Barr, P--10478, for defendant-appellant.

Before the Entire Bench.

FITZGERALD, Justice.

Defendant, a physician in general practice, was charged with violation of § 7 of the Uniform Narcotic Drug Act, 1937 PA 343 as amended, ¹ in prescribing certain narcotic drugs by written prescription for certain persons known to him to be narcotics users and addicts, otherwise than in 'good faith and in the course of his professional practice.' He was convicted by jury verdict. His conviction was affirmed by the Court of Appeals. Concluding that the jury was improperly instructed on the statutory meaning of 'good faith', we reverse and remand for new trial.

CASE HISTORY

Testimony at trial indicated that in August of 1966 two police officers on separate occasions informed defendant that his practice of prescribing significant quantities of narcotic drugs to known users and addicts violated both the standards of professional practice as set out by the American Medical Association and Federal law. On both occasions, defendant acknowledged that the prescriptions to which the officers made reference had in fact been issued by him.

Defendant continued his practice of prescribing significant quantities of narcotic drugs. ² During the first half of 1967 defendant prescribed narcotic drugs on numerous occasions to known addicts Mario Divita, Shirley Davies, Peter Giordino, Robert Krueger and Louis Nebulone.

The people introduced the testimony of expert witness Dr. Irvin Kurtz, ³ who testified that the ordinary physician (I.e., defendant) was not qualified to treat drug-dependent persons and that the treatment of drug-dependent persons 'is entirely relegated to specialized institutions or specialized physicians who are so designated, recognized and known.' He indicated that maintenance of a drug dosage was permissible only for a number of days, and then only if other treatment was contemplated.

The testimony of Dr. Kurtz was contradicted by testimony of two defense expert witnesses. Dr. Elliott Luby ⁴ testified that there were enormous numbers of drug-dependent persons in the Detroit metropolitan area, that there were not nearly enough beds to take care of everyone and that it was not necessarily so that a physician who does not have the necessary psychiatric training should not treat the patient. He stated that a general practitioner might not be able to obtain admission of a drug-dependant person into a 'recognized' facility and then he would be faced with a dilemma:

'So the doctor, recognizing the discomfort of both patient and his family, is faced with a moral dilemma. And this is essentially a moral dilemma: shall I do something for the patient and indeed face whatever problem might occur such as those which Dr. Downes (the defendant) is currently experiencing, or shall I tell the patient and his family to leave? I can't treat you. And place them really back in the community, providing them with no help whatsoever.

'It is a dilemma which many doctors face today. And, indeed, some of them handle it by refusing treatment completely. Others, by doing whatever they can for the patient in their own particular way.'

Dr. Luby was also asked whether it would be 'bad faith for a doctor to give a drug-dependent person a prescription for an amount of drugs which might last for a week or two.' He answered 'No.' The general thrust of Dr. Luby's testimony was to indicate that the defendant had issued the prescriptions not in bad faith but rather to manage drug dependence as best as it could be managed under the circumstances.

Dr. Thomas Sullivan, ⁵ who familiarized himself with defendant's treatment of the patients he was charged with improperly treating, testified that defendant's actions were 'driected toward a cure' and added that he was not really maintaining the addicts on narcotics. The dosages of narcotics he gave were preparatory to withdrawal and therefore defendant's treatment was consonant with the standards set forth by the American Medical Association. Dr. Sullivan testified that the defendant 'could * * * honestly believe * * * in good faith and in sincerity that in accordance with his professional practice that the prescriptions he issued complied with good medical practice in this community for general practitioners.'

Dr. George Downes, the defendant, testified on his own behalf, indicating that his actions in prescribing narcotics were taken in good faith in the course of his professional practice and directed toward a cure.

The case was submitted to the jury upon instructions and defendant's conviction resulted. The Court of Appeals affirmed. 49 Mich.App. 532, 212 N.W.2d 314 (1973). We granted leave to appeal. People v. Downes, 391 Mich. 786 (1974).

On appeal defendant raises seven issues. We will discuss only the two issues which we deem determinative of the outcome. These critical issues are:

(1) Is the 'good faith' standard of § 7 of the Uniform Narcotic Drug Act, the statute under which defendant was charged and convicted, unconstitutionally vague, thereby violating defendant' right to due process under the law?

(2) Did the trial court err in failing to clearly instruct the jury, as requested by defendant, that 'good faith in the course of his professional practice', as those terms were employed in § 7 of the Uniform Narcotic Drug Act, was 'good faith' according to fair or reasonable medical standards As understood by the defendant?

I

Section 7 of the Uniform Narcotic Drug Act states, in pertinent part:

'(1) A physician or a dentist, in Good faith and in the course of his professional practice only, may prescribe, administer, and dispense narcotic drugs, or he may cause the same to be administered by a nurse or interne under his direction and supervision.' (Emphasis supplied.)

Section 20 of the Act provides:

'Any person duly licensed under the preceding provisions of this act who violates any provision of this act shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 10 years or by a fine of not more than $10,000.00 or by both such fine and imprisonment.'

Following conviction by jury under the first section for failure to prescribe narcotic drugs in good faith and in the course of his professional practice, defendant was sentenced to five years probation with payment of a fine of $5,000.

Defendant contends that the term 'good faith' as used in the statute is hopelessly vague and indefinite, pointing out that it is unclear whether the term as employed was intended to mean honesty in fact, a subjective standard, or 'good faith' determined by evaluation of defendant's conduct in light of proper professional standards, an objective standard. Framed in this manner, defendant's contention directly relates to the discussion in part II of this opinion.

In support of this argument we are referred to unmerous general authorities indicating that conviction under a vague criminal statute violates due process of law. A sampling of these references are here set forth:

"That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.' Connally v. General Construction Co., 269 U.S. 385 (, 391), 46 S.Ct. 126, 127, 70 L.Ed. 322.

"But, in order to constitute a crime, the act must be one which the party is able to know in advance whether it is criminal or not. The criminality of an act cannot depend upon whether a jury may think it reasonable or unreasonable. There must be some definiteness and certainty.' Tozer v. United States (C.C.Mo.) 52 F. 917, 919.' People v. Austin, 301 Mich. 456, 463--464, 3 N.W.2d 841, 844 (1942).

'A criminal statute must be definite as to the persons within the scope of the statute and the acts which are penalized. If it is not definite, the due process clause of state constitutions and of the Fifth and Fourteenth Amendments of the Federal Constitution, whichever is applicable, is violated.

'If the statute is so vague and uncertain that a reasonable man would be compelled to speculate at his peril whether the statute permits or prohibits the act the contemplates committing, the statute is unconstitutional. The legislature, in the exercise of its power to declare what shall constitute a crime or punishable offense, must inform the citizen with reasonable precision what acts it intends to prohibit, so that he may have a certain understandable rule of conduct. If on its face a criminal statute is repugnant to the due process clause, specifications of details of the offense intended to be charged will not serve to validate it, it being the statute and not the accusation under it that prescribes the rule to govern conduct and warns against transgression.' 1 Wharton's Criminal Law and Procedure, § 18, p. 32.

Commentary mirroring the above may be found on many pages of our now-voluminous collection of Michigan Reports. On one such page the issue defendant raises prompted this Court to make the following comment:

'A criminal statute ought to be so plain and unambiguous that 'he who runs' may read, and understand whether his conduct is in violation of its...