State v. Bell, 42829
| Decision Date | 24 January 1974 |
| Docket Number | No. 42829,42829 |
| Parties | STATE of Washington, Appellant, v. William Milton BELL, Respondent. |
| Court | Washington Supreme Court |
Williams, Lanza, Kastner & Gibbs, Gerald A. Palm, Seattle, for appellant.
Christopher T. Bayley, King County Pros. Atty., Corydon J. Nelsen, Deputy Pros. Atty., Seattle, for respondent.
The Respondent, Dr. William M. Bell, was convicted of two counts of unlawfully selling dangerous drugs. The majority of a panel of the Court of Appeals reversed the trial court upon the basis of an inappropriate propriate jury instruction. State v. Bell, 8 Wash.App. 670, 508 P.2d 1398 (1973). The State, as a matter of right pursuant to ROA II--2, appeals that decision.
Dr. Bell, at the time of his arrest, conducted his practice as an osteopathic physician in Seattle. On March 1, 1971, two police officers in street dress visited his office and asked for diet pills by the trade name Bamadez. The officers were asked if they were patients, and they replied in the affirmative. Dr. Bell then sold each of them 30 tablets of the diet pills for $5.00. One of the ingredients in Bamadex is an amphetamine which is a dangerous drug regulated by the provisions of RCW chapter 69.40. Dr. Bell was charged with the sale of dangerous drugs and arrested on March 9, 1971. On July 27, 1971, he was brought to trial in Superior Court of King County.
In effect at the time of the alleged sale was RCW 69.40.060 (repealed May 21, 1971), which reads in pertinent part:
It shall be unlawful for a person, . . . to sell, . . . any of the foregoing substances, . . . or any other drug which is required by any applicable federal or state law or (federal) regulation to be used only on prescription, Except upon the written or oral order or prescription of a physician, . . . and shall not be refilled without the written or oral order of the prescriber: Provided, That the above provisions of (this section) shall not apply to the sale at wholesale by drug jobbers, . . . or to physicians . . . licensed to practice in this state.
(Italics ours.) Also in effect was RCW 69.40.064 A prescription, in order to be effective in legalizing the possession of dangerous drugs, must be issued for a Legitimate medical purpose by one authorized to prescribe the use of such dangerous drugs. An order purporting to be a prescription issued to an addict or habitual user of dangerous drugs, not in the course of professional treatment is not a prescription within the meaning and intent of this section; and the person who knows or should know that he is filling such an order, as well as the person issuing it, may be charged with violation of this chapter. A legitimate medical purpose shall include use in the course of a bona fide research program in conjunction with a hospital or university.
(Italics ours.)
In the intervening period between the drug sale and trial, the Uniform Controlled Substance Act, RCW chapter 69.50, came into effect on May 21, 1971. A section thereof, RCW 69.50.308 reads in pertinent part:
(a) Except when dispensed directly by a practitioner authorized to prescribe or administer a controlled substance to an ultimate user, no controlled substance in Schedule II may be dispensed without the written prescription of a practitioner.
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(d) A valid prescription or lawful order of a practitioner, in order to be effective in legalizing the possession of controlled substances, must be issued in good faith for a legitimate medical purpose by one authorized to prescribe the use of such controlled substance. An order purporting to be a prescription not in the course of professional treatment is not a valid prescription or lawful order of a practitioner within the meaning and intent of this act; and the person who knows or should know that he is filling such an order, as well as the person issuing it, can be charged with a violation of this chapter.
(Italics ours.)
The respondent contends and it seems to us that the effect of instruction No. 9, given to the jury by the trial court, approximated and may have been worded in terms of the requirements of the news statute, RCW 69.50.308, (which was not in effect at the time of the alleged offense) rather than in terms of the requirements of RCW 69.40.060 and RCW 69.40.064 which were in effect when the alleged offense occurred on March 1, 1971. An exception to instruction No. 9 was taken in behalf of Dr. Bell on the ground that it imposed more stringent requirements than were legally appropriate relative to the dispensing of dangerous drugs. The language of the trial court's instruction No. 9 stated:
Under the laws of the State of Washington, sale or dispensing of a dangerous drug is a crime, except upon the written or oral order or prescription of a physician, surgeon, dentist, or veterinary surgeon duly licensed to practice in the State of Washington.
However, a physicain (sic) may sell or dispense dangerous drugs if in good faith and in the course of his professional practice for theraputic (sic) purposes only.
A panel of the Court of Appeals, per Callow, J., found that the above instruction did indeed impose an impermissibly stricter standard than that required by RCW chapter 69.40 as codified at the time of the alleged sale. Thus, the Court of Appeals reversed and remanded for a new trial with jury instructions to be appropriately guided by RCW chapter 69.40 as formerly constituted.
In his dissent, Judge Williams of the Court of Appeals persuasively reasoned that RCW 69.40.060 and RCW 69.40.064 should be read in Pari materia. He stated:
Basically, the question is: Did the legislature in enacting RCW 69.40, entitled 'Poisons and Dangerous Drugs,' intend to except physicians from the prohibition of dispensing dangerous drugs absolutely, or did it except physicians from the prohibition only if the drugs were dispensed in good faith in the course of professional practice for therapeutic purposes?
The purpose of RCW 69.40 is plain enough; it is to regulate the sale of dangerous drugs. In so doing, the legislature gave certain powers to allow physicians and others to prescribe and dispense drugs in the course of prefessional treatment for legitimate medical purposes. . . .
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Bell contends that the language of (RCW 69.40.064) . . ., or words of similar impact, may not be used in the instruction because he was only charged with violating (RCW 69.40.060) . . . I do not agree, because the rule as stated in State v. Houck, 32 Wash.2d 681, 684, 203 P.2d 693 (1949) is:
Statutes in Pari materia must be construed together. Statutes in Pari materia are those which relate to the same person or thing, or the same class of persons or things; and in construing a statute, or statutes, all acts relating to the same subject matter or having the same purpose, should be read in connection therewith as together constituting one law. The object of the rule is to ascertain and carry into effect the intent of the legislature, and it proceeds upon the supposition that the several statutes having to do with related subject matters were governed by one spirit or policy, and were intended to be consistent and harmonious in their several parts and provisions.
Accord, State v. Rinkes, 49 Wash.2d 664, 306 P.2d 205 (1957); In re Cress, 13 Wash.2d 7, 123 P.2d 767 (1942); See also Beach v. Board of Adjustment, 73 Wash.2d 343, 438 P.2d 617 (1968).
State v. Bell, Supra, 8 Wash.App. at 677--679, 508 P.2d at 1403.
The evaluation of Judge Williams on this point in the above-referenced dissent is analytically interesting and engaging. The italicized portions of RCW 69.40.060 would indicate that the sale of dangerous drugs is restricted to those sold pursuant to the written or oral order of prescription of a physician. Furthermore, a valid prescription under RCW 69.40.064 is one issued for a Legitimate medical purpose. Thus, when read in conjunction, the statutes would seem to indicate that a physician may lawfully issue a prescription only when it is issued in furtherance of a Legitimate medical purpose.
The italicized provisions of RCW 69.50.308(d) require that the dispensation of controlled...
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