State v. Bradford

• Decision Date: 06 March 1979
• Docket Number: 6 Div. 724
• Citation: 368 So.2d 317
• Parties: STATE v. Ferdinand D. BRADFORD, Jr.
• Court: Alabama Court of Criminal Appeals

Page 317

368 So.2d 317

STATE v. Ferdinand D. BRADFORD, Jr.

6 Div. 724.

Court of Criminal Appeals of Alabama.

March 6, 1979.

William J. Baxley, Atty. Gen. and L. G. Kendrick, Asst. Atty. Gen., for the State.

Arthur Parker, Ira H. Kline, Birmingham, for appellee.

BOOKOUT, Judge.

Ferdinand D. Bradford, Jr., a licensed physician, was indicted by the Jefferson County Grand Jury for violation of Act No. 1407, § 505, Acts of Alabama 1971, approved September 16, 1971 (now § 20-2-74, Code of Ala.1975). The indictment, omitting the formal parts, is as follows:

"FERDINAND D. BRADFORD, JR., whose name is to the Grand Jury otherwise unknown, a physician licensed to practice under the laws of the State of Alabama, did on to-wit: June 21, 1977, unlawfully violate section 258(58) of Title 22 known as the Alabama Uniform Controlled Substances Act, in that he to-wit: issued a prescription for Robitussin AC, a controlled substance, and Tenuate dospan, a controlled substance, to Tyrone Anderson going by the name of Tyrone Holmes and that such prescription was not issued in good faith for a legitimate medical purpose in the usual course of his professional practice and such prescription for Robitussin AC and Tenuate Dospan was in fact subsequently filled by a pharmacist,

"2nd: The Grand Jury of said county further charge that before the finding of this indictment FERDINAND D. BRADFORD, JR., whose name is to the Grand Jury otherwise unknown, did on to-wit: June 21, 1977, violated section 258(58) of the Alabama Uniform Controlled Substances Act in that he to-wit: issued a prescription for tenuate dospan, a controlled substance, to Tyrone Anderson going by the name of Tyrone Holmes and such prescription was issued in the fictitious name of Mary Glisson not in good faith for a legitimate medical purpose in the usual course of his professional practice and such prescription for tenuate dospan was in fact subsequently filled by a pharmacist,

"3rd: The Grand Jury of said county further charge that before the finding of this indictment FERDINAND D. BRADFORD, JR., whose name is to the Grand Jury otherwise unknown, did on to-wit: June 21, 1977, violated section 258(58) of the Alabama Uniform Controlled Substances Act in that he to-wit: issued a prescription for Ionamin, a controlled substance to Tyrone Anderson going by the name of Tyrone Holmes and such prescription was issued in the fictitious name of Janice Ward not in good faith for a legitimate medical purpose in the usual course of his professional practice and such prescription for ionamin, was in fact subsequently filled by a pharmacist,

"4th: The Grand Jury of said county further charge that before the finding of this indictment FERDINAND D. BRADFORD, JR., whose name is to the Grand Jury otherwise unknown, did on to-wit: June 21, 1977, violated section 258(58) of the Alabama Uniform Controlled Substances Act in that he to-wit: issued a prescription for tepanil ten-tab, a controlled substance to Tyrone Anderson going by the name of Tyrone Holmes and such prescription was issued in the fictitious name of Joyce Banks not in good faith for a legitimate medical purpose in the usual course of his professional practice and such prescription for tepanil ten-tab was in fact subsequently filled by a pharmacist,

"5th: The Grand Jury of said county further charge that before the finding of this indictment FERDINAND D. BRADFORD, JR., whose name is to the Grand Jury otherwise unknown, did on to-wit: June 21, 1977, violated section 258(58) of the Alabama Uniform Controlled Substances Act in that he to-wit: issued a prescription for Quaalude, a controlled substance, to Tyrone Anderson going by the name of Tyrone Holmes and such prescription was issued in the fictitious name of Dorothy Smith not in good faith for a legitimate medical purpose in the usual course of his professional practice and such prescription for Quaalude was in fact subsequently filled by a pharmacist,"

The pertinent section of the statute under which appellee was charged is as follows:

"Section 505. (Rules and Regulations Pertaining to Administering, Dispensing, and Prescribing by Practitioners.) It shall be unlawful for any practitioner of dentistry to prescribe, administer, or dispense any controlled substance enumerated in Schedules I through V for any person not under his treatment in his regular practice of his profession or for any practitioner of veterinary medicine to prescribe, administer, or dispense any controlled substance enumerated in Schedule I through V for the use of human beings. Provided, however, that the provisions of this section shall be construed not to prevent any lawfully authorized practitioner of medicine from furnishing or prescribing in good faith for the use of any habitual user of substances enumerated in Schedules I through V who is under his professional care such substances as he may deem necessary for their treatment, when such prescriptions are not given or substances furnished for the purpose of maintaining addiction or abuse. Any person who violates this section shall be guilty of a felony and shall on conviction thereof be subject to imprisonment for not less than 2 nor more than 15 years."

Counsel for the appellee filed a demurrer to the indictment alleging, among other grounds, that the facts as alleged did not violate the statute; that the statute "does not proscribe conduct of a licensed physician in and about the issuing of prescriptions for controlled substances." Ground 12 of the demurrer contended that the statute violated the appellee's rights under the state and federal constitutions as being vague, indefinite and overbroad; failing to sufficiently put the appellee on notice as to his duties as a licensed physician in issuing prescriptions for controlled substances; and that it fails to meet due process of law.

The trial judge sustained the appellee's demurrer to the indictment holding that the statute was "unconstitutional as to licensed physicians in that said section is vague and ambiguous and does not fully apprise a licensed physician as to what constitutes unlawful conduct as regards prescribing of controlled substances." The State appealed the ruling of the trial court to this court.

I

The statute in question (referred to throughout the record by its unofficial designation as Title 22, § 258(58), Code of Ala.1940) clearly and patently applies only to dentists and veterinarians by its expressed terms.

In its simplest form, the statute states that it shall be unlawful for (1) A practitioner of dentistry to prescribe certain drugs to a person not his patient, or (2) A practitioner of veterinary medicine to prescribe certain drugs for human use. Nowhere in § 505 does the legislature state that it shall be unlawful for a Practitioner of medicine to do anything. A limitation or rule of construction is added to § 505 stating that the section "Shall be construed not to prevent any lawfully authorized practitioner of medicine from furnishing or prescribing in good faith for the use of any habitual user of substances enumerated . . . who is under his professional care such substances as he may deem necessary for their treatment" when the drugs are not to maintain addiction. (Emphasis supplied.)

Whatever the purpose of the quoted rule of construction, the act could not be construed as applying to physicians, regardless of whether or not they act in good faith, simply because the only prohibitions in the statute specifically apply only to dentists and veterinarians.

It would take a strained and convoluted construction to apply the criminal sanctions of § 505 to a physician. One of the most elementary principles governing the review of criminal cases is that criminal statutes must be strictly construed in favor of the persons sought to be subjected to their operation. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956). In Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952), the Alabama Supreme Court restated that fundamental principle by quoting from cases of longstanding historical importance in this state:

" ' * * * "A penal statute cannot be extended by implication or construction to cases within the mischief, if they are not at the same time within the terms of the act, fairly and reasonably interpreted." . . .' "

Likewise, in Fuller the Supreme Court quoted from Young v. State, 58 Ala. 358 (1877):

"The rule is, that penal laws are not by construction to be made to embrace cases not plainly within their meaning. . . . One who commits an act which does not come within the words of a penal statute, according to the general and popular understanding of them, when they are not used technically, is not to be punished thereby, merely because the act contravenes the policy of the statute."

The clause in § 505, supra, referring to practitioners of medicine is clearly not penal in nature, but is merely a rule of construction or at most a statement of "policy."

Statutes should be given a constitutional construction when possible, and we construe § 505, supra, as being constitutional in its application to those persons coming within its purview dentists and veterinarians. But, being constitutional as written and being applied in an unconstitutional manner are two different propositions. We consider the act to be constitutional on its face, yet the State attempted to enforce it in a very unconstitutional manner against a person to whom it did not apply.

The dissenting opinion (which was originally written as the majority opinion) cites United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975) as authority to validate the indictment, however, Moore is based upon a federal statute that in no detail resembles the Alabama statute in question. Neither is light shed upon the issue by looking to other foreign jurisdictions for definitions of and constructions placed upon the term "good faith" as used in statutes...