State v. Bridges

• Decision Date: 14 January 1966
• Docket Number: No. 50525,50525
• Citation: 398 S.W.2d 1
• Parties: STATE of Missouri, Respondent, v. William Cullen BRIDGES, M.D., Appellant.
• Court: Missouri Supreme Court

Page 1

398 S.W.2d 1

STATE of Missouri, Respondent, v. William Cullen BRIDGES, M.D., Appellant.

No. 50525.

Supreme Court of Missouri, En Banc.

Jan. 14, 1966.

Norman H. Anderson, Atty. Gen., Jefferson City, James P. Jouras, Sp. Ass't. Atty. Gen., Kansas City, for respondent.

David M. Grant and Raymond Howard, Jr., St. Louis, for appellant.

FINCH, Judge.

Defendant was convicted of unlawfully distributing and transferring amphetamine hydrochloride, a stimulant drug, and the jury assessed his punishment at a fine of five hundred dollars. We have jurisdiction of his appeal because the construction of the Constitutions of the United States and of the State of Missouri is involved. Section 3, Article V, Missouri Constitution, V.A.M.S. After the adoption by Division One of this court of an opinion affirming the conviction, the case was transferred, on request, to the court en banc by reason of the fact that there had been a dissenting opinion to the divisional opinion.

The indictment under which defendant was tried was as follows: '* * * That WILLIAM CULLEN BRIDGES, M.D. physician and surgeon, on the 12th day of May (1962), * * * did unlawfully, designedly, and wilfully distribute and transfer one ounce of amphetamine hydrochloride, to-wit: by selling a prescription for one ounce of amphetamine hydrochloride to PEARL WALLACE, also known as RAE WALKER, which was not for medicinal purposes, for Seven Dollars, which was not in the usual course of business or practice, contrary to Section 195.240, Missouri Revised Statutes, * * *.'

Pertinent sections and parts of sections of Chapter 195 (all references are to RSMo 1959, V.A.M.S., unless otherwise indicated) relevant to the charge against defendant are as follows:

'195.220. Definitions.--As used in sections 195.220 to 195.270, the following terms mean:

* * *

* * *

(2) 'Stimulant', amphetamine or any of its derivatives which have an exciting effect on the central nervous system of a human or animal.

'195.230. Division of health to file list of drugs.--The division of health of the department of health and welfare shall prepare a list of all drugs falling within the purview of the terms barbiturate or stimulant. Upon preparation, a copy of the list shall be filed in the office of the secretary of state.

'195.240. Possession or distribution of barbiturates or stimulants regulated.--The possession, sale, distribution, or transfer of any drug which is designated by the division of health to be a barbiturate or stimulant is unlawful, except in the usual course of business or practice, or in the performance of their official duties by the following persons:

(1) Persons licensed under the provisions of chapters * * * 334, * * *, RSMo.'

Chapter 334 provides for the licensing of physicians and surgeons.

On August 31, 1959, the Division of Health, in accordance with Sec. 195.230, filed in the office of the Secretary of State a list of stimulants which was as follows:

'LIST OF STIMULANTS AMPHETAMINES

Definition of Amphetamine:

Any stimulant drug consisting of phenylisopropylamine and all derivatives thereof, except preparations intended for use in the nose and which cannot be rendered fit for internal use shall be considered a part of this list.

Chemical Classification Generic Name

d1-1-phenyl-2-amino-propane sulfate Amphetamine

Sulfate USP

d-1-phenyl-2-amino-propane sulfate Dextro-amphetamine

Sulfate USP

trimethylphenethylamine Mephentermine USP

desoxyephedrine hydrochloride; Methamphetamine

d-1-phenyl-2-methyl-amino-propane Hydrochloride USP

hydrochloride

1-phenyl-2-nicotinyl-amino-propane Nicotinyl-amphetamine" The evidence on behalf of the state would justify the following statement of facts: Defendant is a physician and surgeon in the City of St. Louis. On the evening of May 12, 1962, Pearl Wallace went to defendant's office to obtain a prescription for amphetamine hydrochloride. She had taken drugs for many years and had used amphetamine for five years. She would dissolve it in water and inject it into her veins with a hypodermic needle. At the time in question she was not under medication, treatment or care of a doctor for anything. She did not discuss her weight with the defendant or seek relief from him to enable her to lose weight. She simply went to his office and asked for a prescription. Defendant wrote out a prescription for two ounces of amphetamine hydrochloride and delivered it to Pearl Wallace, for which she paid him the sum of seven dollars. She then took the prescription to a drugstore, where she had it filled. The pharmacist who filled the prescription testified that he did fill the prescription for Pearl Wallace, and he identified amphetamine hydrochloride as a derivative of amphetamine. He testified that the principal difference between it and amphetamine sulphate, another derivative of amphetamine, was that the hydrochloride was more soluble than the sulphate. Other witnesses testified that in the months preceding May 12, 1962, they had gone to defendant's office and purchased prescriptions for amphetamine hydrochloride.

Defendant first attacks on constitutional grounds the statute under which the indictment against defendant was returned. These constitutional questions can be divided into three subdivisions.

First, defendant contends that the portion of Sec. 195.240 which reads: '* * * except in the usual course of business or practice, or in the performance of their official duties by * * * [physicians]' is too vague, uncertain, ambiguous and indefinite to provide an ascertainable standard of guilt. This, says defendant, causes difficulty in determining just what is prohibited and prevents one charged from having an adequate opportunity to prepare a defense, thereby depriving him of due process. Cases such as Diemer v. Weiss, 343 Mo. 626, 122 S.W.2d 922, which consider the standard of certainty required in criminal statutes are cited. We agree with the rule therein laid down. The difficulty is that defendant does not demonstrate that the statute here involved violates those principles. The statute in question proscribes the possession, sale, distribution, or transfer of certain drugs. Physicians and others specified in the statute are excepted therefrom in 'the usual course of business or practice, or in the performance of their official duties.' In other words, a physician acts lawfully in possessing, selling, distributing, or transferring such drugs so long as he does so in the usual course of his medical practice in treating patients and prescribing for them. Such language is not vague or uncertain. The phrases 'usual course of business or practice' of such persons as physicians and surgeons and 'performance of their official duties' by such persons as officials of enforcement agencies are in such common use that any reasonable man can determine their meaning. Surely, one licensed as a physician knows when he is acting in the usual course of his practice of medicine. The same can be said for one in public office as to when he is performing his official duties. We rule this contention against defendant.

Second, defendant alleges denial of due process in that the statute made no provision requiring the Division of Health to give any kind of notice, actual or constructive, of the filing of a list of drugs designated by that agency pursuant to the statute. This contention also is without merit. Section 195.220 defines 'stimulant' and by Sec. 195.230 the Division of Health is directed to prepare a list of all drugs falling within the said definition, and to file such list in the office of the Secretary of State. Thus, by Sec. 195.220 defendant is put on notice of and given a clear standard of what drugs (barbiturates and stimulants as defined) are involved in the enactment, and by Sec. 195.230 he is directed to where he can find a list of all the proscribed drugs. It is a rule deep within our law that ignorance of the law is no excuse, and under this maxim defendant is presumed to know the law. That law told the defendant what drugs were proscribed and where a list could be found. This was sufficient.

Third, defendant claims that the statutes here involved are unconstitutional under Section 1 of Article II of the Constitution of Missouri, V.A.M.S., in that they unlawfully delegate legislative authority to the Division of Health to designate drugs covered by the act, with no standard, rule or reasonable guide set out in the statutes for the Division of Health to follow. Cases cited include Lux v. Milwaukee Mechanics' Ins. Co., 322 Mo. 342, 15 S.W.2d 343; State ex rel. Triangle Fuel Co. v. Caulfield, 355 Mo. 330, 196 S.W.2d 296, and State ex rel. Ludlow v. Guffey, Mo., 306 S.W.2d 552. In substance, these cases hold that an enactment which delegates authority is constitutional if a definite standard is provided and no arbitrary discretion is involved. The above cases and cases such as State ex rel. Mackey v. Hyde, 315 Mo. 681, 286 S.W. 363, provide certain exceptions where there is greater latitude, but we need not consider those exceptions because here the Division of Health is limited to a definite standard for its delegated duty, and no arbitrary discretion can be or is involved. Section 195.220 defines 'stimulant' as 'amphetamine or any of its derivatives which have an exciting effect on the central nervous system of a human or animal.' This provides a definite standard to which the Division of Health is limited in the performance of its delegated duty. There is virtually no discretion in the preparation and filing of the list of drugs. The only way this limited discretion could be abused would...