People v. Stuart

• Decision Date: 11 October 1956
• Docket Number: Cr. 5892
• Citation: 302 P.2d 5,55 A.L.R.2d 705,47 Cal.2d 167
• Court: California Supreme Court
• Parties: , 55 A.L.R.2d 705 The PEOPLE of the State of California, Plaintiff and Respondent, v. Stephen STUART, Defendant and Appellant.

Page 5

302 P.2d 5

47 Cal.2d 167, 55 A.L.R.2d 705

The PEOPLE of the State of California, Plaintiff and Respondent, v. Stephen STUART, Defendant and Appellant.

Cr. 5892.

Supreme Court of California, In Bank.

Oct. 11, 1956.

John N. Frolich, william Levin, Los Angeles, and Bruce McMullen, San Francisco, for appellant.

Dean M. McCann, Upland, as amicus curiae on behalf of appellant.

Edmund G. Brown, Atty. Gen., and Edward M. Belasco, Deputy Atty. Gen., for respondent.

TRAYNOR, Justice.

Defendant was charged by information with manslaughter, Pen.Code, § 192, and the violation of section 380 of the Penal Code. He was convicted of both offenses by the court sitting without a jury. His motions for a new trial and for dismissal, Pen.Code, § 1385, were denied, sentence was suspended, and he was placed on probation for two years. He appeals from the judgment of conviction and the order denying his motion for a new trial.

Defendant was licensed as a pharmacist by this state in 1946 and has practiced here since that time. He holds a B.S. degree in chemistry from Long Island University and a B.S. degree in pharmacy from Columbia University. In April, 1954, he was employed as a pharmacist by the Ethical Drug Company in Los Angeles.

On July 16, 1954, he filled a prescription for Irvin Sills. It had been written by Dr. D. M. Goldstein for Sills' eight-day-old child. It called for 'Sodium phenobarbital, grains eight. Sodium citrate, drams three. Simple Syrup, ounces two. Aqua pepperment, ounces one. Aqua distilate QS, ounces four.' Defendant assembled the necessary drugs to fill the prescription. He believed that the simple syrup callef for was unavailable and therefore used syrup of orange. The ingredients were incompatible, and the syrup of orange precipitated out the phenobarbital. Defendant then telephoned Dr. Goldstein to ask if he could use some other flavoring. Dr. Goldstein told him that since it was midnight, if he could not find any simple syrup 'it would be just as well to use another substance, elixir mesopine, P.B.' Defendant spoke to a clerk and learned that there was simple syrup behind the counter. He mixed the prescription with this syrup, put a label on the bottle according to the prescription, and gave it to Sills. Sills returned home, put a teaspoonful of the prescription in the baby's milk and gave it to the baby. The baby died a few hours later.

Defendant stipulated that there was nitrite in the prescription bottle and that 'the cause of death was methemoglobinemia caused by the ingestion of nitrite.' When he compounded the prescription, there was a bottle containing sodium nitrite on the shelf near a bottle labeled sodium citrate. He testified that at no time during his employment at the Ethical Drug Company had he filled any prescription calling for sodium nitrite and that he had taken the prescribed three drams of sodium citrate from the bottle so labeled.

On August 11, 1954, another pharmacist employed by the Ethical Drug Company filled a prescription identical with the Sills' prescription. He obtained the sodium citrate from the same bottle used by defendant. The prescription was given to an infant. The infant became ill but recovered. In the opinion of Dr. Goldstein, it was suffering from methemoglobinemia. An analysis of this prescription by a University of Southern California chemist disclosed that it contained 5.4 grams of sodium nitrite per 100 cc's and 4.5 grams of sodium citrate per 100 cc's.

An analysis made by the staff of the head toxicologist for the Los Angeles County Coroner of the contents of the bottle given to Sills disclosed that it contained 1.33 drams of sodium citrate and 1.23 of sodium nitrite. An analysis made by Biochemical Procedures, Incorporated, a laboratory, of a sample of the contents of the bottle labeled sodium citrate disclosed that it contained 38.9 milligrams of nitrite per gram of material. Charles Covet, one of the owners of the Ethical Drug Company, testified that on the 17th or 18th of October, 1954, he emptied the contents of the sodium citrate bottle, washed the bottle but not its cap, and put in new sodium citrate. A subsequent analysis of rinsings from the cap gave strong positive tests for nitrite. Covet also testified that when he purchased an interest in the company in April, 1950, the bottle labeled sodium citrate was part of the inventory, that no one had put additional sodium citrate into the bottle from that time until he refilled it after the death of the Sills child and that he had never seen any other supply of sodium citrate in the store.

There is nothing in the record to indicate that the contents of the bottle labeled sodium citrate could have been identified as containing sodium nitrite without laboratory analysis. There was testimony that at first glance sodium citrate and sodium nitrite are identical in appearance, that in form either may consist of small colorless crystals or white crystalline powder, that the granulation of the crystals may vary with the manufacturer, and that there may be a slight difference in color between the two. The substance from the bottle labeled sodium citrate was exhibited to the court, but no attempt was made to compare it with unadulterated sodium citrate or sodium nitrite. A chemist with Biochemical Procedures, Incorporated, testified that the mixture did not appear to be homogeneous but that from visual observation alone he could not identify the crystals as one substance or the other. Defendant testified that he had no occasion before July 16th to examine or fill any prescription from the sodium citrate bottle.

No evidence whatever was introduced that would justify an inference that defendant knew or should have known that the bottle labeled sodium citrate contrained sodium nitrite. On the contrary, the undisputed evidence shows conclusively that defendant was morally entirely innocent and that only because of a reasonable mistake or unavoidable accident was the prescription filled with a substance containing sodium nitrite. Section 20 of the Penal Code ¹ makes the union of act and intent of criminal negligence an invariable element of every crime unless it is excluded expressly or by necessary implication. People v. Vogel, 46 Cal.2d 798, 299 P.2d 850. Moreover, section 26 of the Penal Code lists among the persons incapable of committing crimes '(p)ersons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent', subd. 4, and '(p)ersons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence.' Subd. 6; see also Pen.Code, §§ 195, 199. The question is thus presented whether a person can be convicted of manslaughter or a violation of section 380 of the Penal Code in the absence of any evidence of criminal intent or criminal negligence.

The answer to this question as it relates to the conviction of manslaughter ² depends on whether or not defendant committed an 'unlawful act' within the meaning of section 192 of the Penal Code when he filled the prescription. The Attorney General contends that even if he had no criminal intent and was not criminally negligent, defendant violated section 26280 of the Health and Safety Code and therefore committed an unlawful act within the meaning of section 192 of the Penal Code.

Section 26280 of the Health and Safety Code provides: 'The manufacture, production, preparation, compounding, packing, selling, offering for sale, advertising or keeping for sale within the State of California * * * of any drug or device which is adulterated or misbranded is prohibited.' ³ In view of the analyses of the contents of the prescription bottle and the bottle labeled sodium citrate and defendant's stipulation, there can be no doubt that he prepared, compounded, and sold an adulterated and misbranded drug.

Because of the great danger to the public health and safety that the preparation, compounding, or sale of adulterated or misbranded drugs entails, the public interest in demanding tha those who prepare, compound, or sell drugs make certain that they are not adulterated or misbranded, and the belief that although an occasional nonculpable offender may be punished, it is necessary to incur that risk by imposing strict liability to prevent the escape of great numbers of culpable offenders, public welfare statutes like section 26280 are not ordinarily governed by section 20 of the Penal Code and therefore call for the sanctions imposed even though the prohibited acts are committed without criminal intent or criminal negligence. See People v. Vogel, supra, 46 Cal.2d 798, 299 P.2d 850, note 2; Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55, 72-75; Hall, Prolegomena To A. Science of Criminal Law, 89 U. of Pa.L.Rev. 549, 563-569.

It does not follow, however, that such acts, committed without criminal intent or criminal negligence, are unlawful acts within the meaning of section 192 of the Penal Code, for it is settled that this section is governed by section 20 of the Penal Code. Thus, in People v. Penny, 44 Cal.2d 861, 877-880, 285 P.2d 926, 936, we held that 'there was nothing to show that the Legislature intended to except section 192 of the Penal Code from the operation of section 20 of the same code' and that the phrase 'without due caution and circumspection' in section 192 was therefore the equivalent of criminal negligence. Since section 20 also applies to the phrase 'unlawful act,' the act in question must be committed with criminal intent or criminal negligence to be an unlawful act within the meaning of section 192. By virtue of its application to both phrases, section 20 precludes the incongruity of imposing on the morally innocent the same penalty, Pen.Code, § 193, appropriate only for the culpable. Words such as 'unlawful act, not amounting to felony' have been included in most...