State v. Brennan

• Decision Date: 25 April 1931
• Docket Number: 6780.
• Parties: STATE v. BRENNAN.
• Court: Montana Supreme Court

300 P. 273

89 Mont. 479

STATE v. BRENNAN.

No. 6780.

Supreme Court of Montana

April 25, 1931

Rehearing Denied May 22, 1931.

Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.

James Brennan, alias James Burns, was convicted of selling morphine hydrochloride, and he appeals.

Affirmed.

James H. Baldwin and R. Lewis Brown, both of Butte, for appellant.

L. A Foot, Atty. Gen., and C. N. Davidson, Asst. Atty. Gen., for the State.

GALEN J.

The defendant was charged with the crime of selling morphine hydrochloride, a narcotic drug, a felony, committed in Silver Bow county on or about the 27th day of January, 1930. Upon his plea of not guilty he was tried to a jury which by its verdict, found him guilty, and fixed his punishment at ten years' imprisonment in the state's prison at Deer Lodge, and a fine of $3,000, upon which judgment was accordingly duly entered. The defendant moved for a new trial, which was denied, and the cause is now before us on appeal from the judgment and the order denying him a new trial.

Of the several specifications of error assigned by the defendant, we are of opinion that the principal question necessary for determination is whether section 3186, as amended, or section 3189, is controlling. What is the law applicable?

By section 11239 of the Revised Codes of 1921, enacted in 1895 it is provided, so far as here pertinent to be considered that "every person who sells, or in any way disposes of, to another person, any morphine, opium, cocaine, chloral-hydrate, or any of their compounds, except to a licensed physician, or on the authority of a certificate of such licensed physician *** is punishable by fine not exceeding two hundred dollars."

In 1911 the Legislature passed a law providing specifically that "it shall be unlawful for any person to sell, furnish or dispose of any opium, morphine, alkaloid-cocaine, or alpha or beta eucaine, or codeine or heroin, or any derivative, mixture or preparation of any of them, except upon the signed prescription of a physician, or veterinarian duly licensed under the laws of this state," etc., and it was provided that "any person found guilty of the violation of this Act shall be punished for each separate offense *** by a fine of not less than Fifty ($50.00) Dollars, nor more than Five Hundred ($500.00) Dollars, or by imprisonment in the County Jail for a period of not less than sixty days nor more than one hundred days, or by both such fine and imprisonment." Chapter 11, Laws 1911. This statute was carried forward into the Revised Codes of Montana of 1921, as sections 3186 to 3188, both inclusive, the punishment provided, as above shown, being prescribed by section 3188, as carried into the Codes.

In 1921 an act was passed entitled: "An Act to Regulate the Production, Manufacture, Sale, Barter, Exchange, Distribution, Dealing in, Giving Away, Dispensing, or the Disposing in Any Manner of Opium or Coca Leaves, Their Salts, Derivatives or Preparations *** to Provide that Under Certain Conditions the Possession of Said Drugs Shall Be Unlawful *** Providing Penalties for Its Violation, and Repealing All Acts in Conflict Herewith." So far as here pertinent, it is by the act (section 1) provided that "it shall be unlawful for any person to sell *** at retail, or to a consumer, opium or coca leaves, or any compound, manufacture, salt, derivative, or preparation thereof, within this state, except upon the original written prescription of a duly licensed physician. ***" And it was provided (section 15) "that any person who violates or fails to comply with any of the requirements of this Act, shall, on conviction, be punished by a fine of not more than One Thousand Dollars ($1,000.00) or by imprisonment for not more than three years, or by both such fine and imprisonment." Chapter 202, Laws 1921. This act was carried forward into the Revised Codes of 1921 as sections 3189 to 3202, both inclusive; the prohibitory provision thereof being found in section 3189. Section 3202, which prescribes the punishment for violation of the act, was amended in 1925, and, so far as here pertinent, reads, as amended:

"Any person, either principal or agent except such persons as are duly authorized by law, having possession or control of any drug mentioned in Sections 3189 to 3201, both inclusive, of the Revised Codes of Montana of 1921, shall, upon conviction, be punished by a fine of not less than Five Hundred Dollars ($500.00), nor more than Three Thousand Dollars ($3,000.00), and by imprisonment in the State Prison for not less than one year, nor more than five years." And "any person, either principal or agent, who sells, barters, exchanges, distributes, gives away, or in any manner disposes of any of the drugs mentioned in Sections above designated to a person over the age of eighteen (18) years, contrary to the provisions of said sections of the Revised Codes of Montana of 1921, shall upon conviction, be punished by a fine of not less than One Thousand Dollars ($1,000.00), nor more than Three Thousand Dollars ($3,000.00), and by imprisonment in the State Prison for not less than five (5) years, nor more than ten (10) years.

"Any person, either principal or agent, who sells, barters, exchanges, distributes, gives away, or in any manner disposes of any of the drugs mentioned in the sections above designated, contrary to the provisions of said sections of the Revised Codes of Montana of 1921, to any person of the age of eighteen (18) years, or under, shall upon conviction be punished by imprisonment in the State Prison for not less than five years nor more than life." Chapter 38, Laws of 1925.

In this condition of our statutory law, in a case involving a conviction for the unlawful sale of cocaine, this court, in December, 1925, speaking through Mr. Chief Justice Callaway, in applying the statutes, said: "An examination of the statutes convinces us that the Legislative Assembly, in enacting chapter 202 of the Laws of 1921, intended thereby to supersede the provisions of sections 11239 and 3186 in so far as they relate to opium or coca leaves, or any compound, manufacture, salt, derivative, or preparation thereof. The legislative purpose undoubtedly was to curb the illicit traffic in the drugs comprehended, which, as everybody knows, then was becoming a serious menace to the body politic. The last section of chapter 202 provided heavy penalties for an infraction of the act. An attempt to increase these penalties in 1923 failed (State v. Mark, 69 Mont. 18, 220 P. 94), but in 1925 the Legislative Assembly again took up the subject, and by amending section 3202 (formerly chapter 202, § 15, Laws 1921) provided the heavy penalties which now obtain (Session Laws of 1925, p. 39), and under the weight of which the defendant suffers. To the extent, then, that section 3189 comprehends, or conflicts with, the subject-matter of sections 3186 and 11239, it supersedes those sections and is controlling. State v. Miller, 69 Mont. 1, 220 P. 97; In re Naegele, 70 Mont. 129, 224 P. 269." State v. Wong Fong, 75 Mont. 81, 241 P. 1072, 1073.

In 1927, the Legislature passed an act to amend section 3186 of the Revised Codes of 1921, to read as follows: "Sale of Opium, Morphine, Mariahuana, and Their Derivatives. It shall be unlawful for any person to sell, furnish, or dispose of any opium, morphine, alkaloid-cocaine, or alpha or beta eucaine, or codeine, or heroin, or mariahuana (Cannabis Indica), or any derivative, mixture, or preparation of any of them except upon the signed prescription of a physician or veterinarian duly licensed under the laws of the State [of Montana]. ***" Chapter 91, Laws 1927. No separate provision or change in existing statutes as to punishment was attempted to be provided in the act.

In 1929 section 3186 of the Revised Codes of 1921, as amended by the Laws of 1927, was again re-enacted and amended by the Legislative Assembly in unimportant particulars, so far as we are here concerned. Chapter 5, Laws 1929.

In this situation as respects our statutory law upon the subject, in the recent case of State v. Mah Sam Hing, 295 P. 1014, 1015, decided February 2, 1931, involving a conviction for the unlawful possession of cocaine hydrochloride, Mr. Justice Matthews, speaking for this court, said that the provisions of chapter 202 of the Laws of 1921, embracing sections 3189 to 3202 of the Revised Codes of 1921, "in so far as they relate to opium or coca leaves, or any compound, manufacture, salt, derivative, or preparation thereof, supersede those of the act of 1911, of which section 3186 is a part."

By section 3186, the Legislature of 1911 prohibited the sale of "opium, morphine, alkaloid-cocaine, or alpha or beta eucaine, or codeine or heroin, or any derivative, mixture or preparation of any of them." Opium is defined as a drug consisting of the inspissated juice of the opium poppy morphine, the principal alkaloid of opium, therefore, is in some manner manufactured from opium. Cocaine is an alkaloid obtained from coca leaves; it is commonly called "cocaine," but technically "alkaloid-cocaine." In section 3186 reference is next made to "alpha or beta eucaine"; eucaine is "eucocaine," "eu" being a prefix signifying "well, good, advantageous"; clearly it is derived from cocaine; it has...