Smith v. State

• Decision Date: 10 March 1938
• Docket Number: 26878.
• Citation: 13 N.E.2d 562,214 Ind. 169
• Parties: SMITH v. STATE.
• Court: Indiana Supreme Court

13 N.E.2d 562

214 Ind. 169

SMITH v. STATE.

No. 26878.

Supreme Court of Indiana

March 10, 1938

Appeal from St. Joseph Circuit Court; Dan Pyle, Judge.

Chas H. Wills, J. Chester Allen, and Zilford Carter, all of South Bend, and R. L. Bailey, of Indianapolis, for appellant.

Omer Stokes Jackson, Atty. Gen., and Thomas Longfellow, Deputy Atty. Gen., for the State.

FANSLER Judge.

The appellant, a practicing physician, was charged in two separate affidavits with selling morphine to a young woman therein named. The cases were consolidated for trial, there was a trial, and a verdict of guilty in both cases. In one case the punishment was fixed at a fine of $100, and in the other a fine of $1, and there was judgment accordingly.

Error is assigned upon the overruling of appellant's motions for a new trial.

Appellant contends that the giving of the following instruction was error: 'I instruct you that the term 'good faith' as used in the act, means an honest intention on the part of the physician or person selling or administering the drug, that the person to whom the narcotics are sold or administered, is actually suffering from a physical condition which would suggest that narcotics might be used in accordance with good medicinal practice.'

The affidavits charge that the sales of the narcotics were not made in 'selling, dispensing, prescribing or administering said narcotic drugs in good faith and in the course of his professional practice.' Acts 1935, c. 280 Burns' Ann.St. § 10-3519 et seq. As we understand appellant's contention, it is that 'good faith' is not defined in the statute, and is nowhere judicially described. We see nothing erroneous or prejudicial in the instruction. Three other instructions on the same subject were tendered by the appellant and given. From these instructions, the jury must have clearly understood that criminal intent was involved; and the defendant's rights in that respect were fully protected.

The appellant complains of an instruction concerning the testimony of character witnesses, which is in all substantial respects identical with the one set out and approved in Ross v. State, 1932, 204 Ind. 281, 296, 182 N.E 865, 870. Appellant complains that he had the right to have the jury consider previous good character in fixing the punishment to be administered in case he was found guilty, and that the instruction deprived him of that right by advising the jury that such evidence could 'only' be considered in determining whether or not the defendant was guilty or innocent as charged. In this case it was the duty of the jury to fix the amount of punishment if the defendant was found guilty. The appellant did not tender an instruction, and the jury was not instructed, as to what might be taken into consideration in fixing the amount of punishment. But it cannot be reasonably concluded that the jury understood, or was likely to understand, from the instruction given, that previous good character could not be considered, with all of the other circumstances of the case, in determining the amount of punishment. If the appellant desired a more specific instruction, it should have been tendered.

The appellant tendered an instruction upon the question of entrapment. There was no conflict in the evidence upon this question. Local police and federal narcotic agents furnished funds, which the young woman, to whom the narcotics were sold, used in their purchase. She went to the appellant, with the knowledge of the officers, and one of them was secreted in her home on one of the occasions when narcotics were furnished. There is some evidence that the appellant had sold narcotics, or furnished them, to the same young woman on a previous occasion, and had been warned not to do so again. There is a sharp conflict in the evidence, but we are concerned only with that...