Schenher v. State

• Decision Date: 14 August 1956
• Docket Number: 1 Div. 719
• Citation: 90 So.2d 234,38 Ala.App. 573
• Parties: George SCHENHER v. STATE.
• Court: Alabama Court of Appeals

Page 234

90 So.2d 234

38 Ala.App. 573

George SCHENHER v. STATE.

1 Div. 719.

Court of Appeals of Alabama.

Aug. 14, 1956.

Rehearing Denied Sept. 4, 1956.

Vincent F. Kilborn, Mobile, for appellant.

John Patterson, Atty. Gen., and J. Noel Baker, Asst. Atty. Gen., for the State.

PRICE, Judge.

The indictment, omitting the formal parts, charged that appellant 'unlawfully did possess, sell, furnish or give away codeine, a narcotic drug, contrary to law and against the peace and dignity of the State of Alabama.' The case was tried by the court without the intervention of a jury. Defendant was found guilty of the 'offense of possession of narcotics as charged in the indictment,' and was sentenced to imprisonment in the penitentiary for a term of two years.

The evidence presented by the State tends to show that on the 9th day of December, 1955, Joe Lockler and a man named Fath, detectives for the City of Mobile, arrested defendant at a rooming house for some other offense. A search of defendant's person disclosed a small plastic bottle containing five large white tablets, two small white tablets and two red gelatine capsules. The bottle with its contents was turned over to Dr. Nelson Grubbs, a toxicologist for the State of Alabama.

Detective Lockler testified on cross examination that the manufacturer's name was made into the bottle itself but there was no detachable label on it.

Dr. Grubbs testified he had been employed as a toxicologist by the State of Alabama since 1939. He graduated from Alabama Polytechnic Institute with a B. S. degree. His post-graduate studies included the subjects of toxicology, law, chemistry and physics. He began his major preparatory studies to become a toxicologist in 1921, and has since then been actively engaged in the study and practice of toxicology. He has regularly attended courts in this State, and has attended post mortem examinations of dead bodies, analyzing drugs and the like.

On direct examination Dr. Grubbs testified that the bottle referred to by detective Lockler was brought to him by officers Lockler and Fath. It contained two red capsules, and five white tablets. The two smaller tablets were Pheno barbital. He analyzed one of the larger white tablets and found it to contain a half grain of codeine.

On cross examination the witness testified the red capsules were vitamin compound. The large white tablets were Empirin compound. Empirin is a trade name. The tablets were labeled 'Tabloid Brand No. 3.' The number indicates the codeine content. The witness stated the tablets were not fresh and had been trimmed down and partially dissolved. Had it been a full tablet it should have contained one-half grain of codeine, but the analysis showed that in its trimmed down state it had one-eighth of a grain of codeine in it. The witness stated that clotran is the brand name on the bottle.

When the State had rested the defendant moved to exclude the State's evidence on the grounds: (1) That the defendant is charged with possessing codeine, while the evidence shows he possessed empirin No. 3, and that the indictment failed to charge that defendant possessed empirin number 3, 'a compound containing codeine,' etc. (2) That under the provisions of Title 22, Section 243, Code 1940, it is no offense to possess codeine in lesser quantity than one grain, and the State's evidence established that defendant had in his possession, at the most, only 5/8ths of a grain of codeine.

The court overruled the motion. No evidence was presented in defendant's behalf.

Section 254 of Title 22, Code 1940, reads:

'It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this chapter.'

Section 232 of said Title provides that:

"Narcotic drugs' means coca leaves, opium, cannibis, isonipecaine, and every substance neither chemically nor physically distinguishable from them.' It is provided in the same section that "opium' includes morphine, codeine, and heroin, and any compound, manufacture, salt, derivative, mixture, or preparation of opium, including apomorphine or any of its salts.'

The indictment was not challenged by demurrer or otherwise. In Shiflett v. State, 37 Ala.App. 300, 67 So.2d 284, 285, the offense was charged in various counts in the indictment in substantially the same language as used here. We held that, 'The offense was clearly, directly, and expressly alleged in each count', and that demurrer was properly overruled. We cannot accord merit to appellant's contention that the indictment was fatally defective in failing to describe in greater detail the compound containing codeine which defendant was charged with possessing contrary to law.

Section 243 of said Title reads:

'Except as otherwise in this chapter specifically provided, this chapter shall not apply to the following cases: (1) Prescribing, administering, dispensing, or selling at retail of any medicinal preparation that contains in one fluid ounce, or if a solid or semi-solid preparation, in one avoirdupois ounce: * * * (c) not more than one grain of codeine or of any of its salts, * * * (3) The exemptions authorized by this section shall be subject to the following conditions: (a) No person shall prescribe, administer, dispense, or sell under the exemptions of this section, to any one person, or for the use of any one person or animal, any preparation or preparations included within this section, when he knows, or can by reasonable...