State v. Dally
| Decision Date | 08 December 1970 |
| Citation | 272 A.2d 781 |
| Parties | STATE of Delaware v. Bruce D. DALLY. |
| Court | Delaware Superior Court |
Opinion on defendant's motion to dismiss the indictment.
James A. Erisman, Deputy Atty. Gen., Wilmington, for the State.
Henry A. Wise, Jr., Wilmington, for the defendant.
In 1969, the New Castle County Grand Jury charged Bruce D. Dally with the unlawful possession of central nervous system depressant and stimulant drugs in violation of 16 Del.C. § 4902(c). Specifically, the indictment alleges that the defendant possessed trifluoperazine, stelazine, chloral hydrate and butabarbital.
The definition of a central nervous system depressant or stimulant drug is found in 16 Del.C. § 4901 as follows:
'(1) Any drug which contains any quantity of (A) barbituric acid or any of the salts of barbituric acid; or (B) any derivative of barbituric acid which has been designated under § 502(d) of the Federal Act as habit-forming;
(2) Any drug which contains any quantity of (A) amphetamine or any of its optical isomers; (B) any salt of amphetamine or any salt of an optical isomer of amphetamine; or (C) any substance designated by regulations promulgated under the Federal Act as habit-forming because of its stimulant effect on the central nervous system; or
(3) Any natural or synthetic mixture or compound that induces the effect of a barbiturate, amphetamine, or hypnotic or somnifacient drug or which contains any quantity of a substance which the State Board of Health has found to have, and by regulation designates as having a potential for abuse because of its depressant or stimulant effect on the central nervous system; 1 or
(4) Any drug which contains any quantity of a substance designated by regulations promulgated under the Federal Act as having a potential for abuse because of its depressant or stimulant effect on the central nervous system.'
The defendant moves to dismiss the indictment on the ground that the above definition is unconstitutionally vague. The State contends that the defendant lacks standing to contest the validity of the statute and that it is specific enough to satisfy due process of law. A hearing was held on July 16, 1970, and the matter was briefed following the hearing.
The indictment does not allege which portion of the definition is relied upon by the possession of the substances listed in the indictment. In this technical area, and with this multiple definition, it would certainly be the better practice to designate in some way the statutory class of prohibited depressant or stimulant drugs which includes the drugs specifically alleged.
In this regard, I note preliminarily that the statutory definition in part refers to certain Federal legislation and regulations and to State Board of Health regulations for its definition of prohibited drugs. The question may then arise as to whether the particular drugs listed in this indictment fall within any of the lists contained in the Federal statutes or the Federal State Board of Health regulations. No evidence was presented by the State in this regard. And I do not think this question must be faced.
Even if trifluoperazine, stelazine, chloral hydrate and butabarbital are proscribed by a Federal or State list, the indictment must set forth, with particularity, which statutory list is violated to fully inform the defendant of the offense charged. Without such information, a defense cannot adequately be prepared.
While an indictment or information is generally sufficient if the offense is charged in the words of the statute, this rule does not apply where the words of the statute do not in themselves fully, either expressly, or by necessary implication, without uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished. See State v. Allen, 10 Terry 150, 112 A.2d 40 at 42 (Super.Ct.1955); State v. Vandenburg, 9 W.W.Harr. 498, 2 A.2d 916 at 920 (Gen.Sess.1938); 41 Am.Jur.2d, Indictments and Informations, §§ 89, 93.
If the intent here was to allege that the drugs specified fall within categories (1)(B) or (2)(C) or that portion of (3) referring to regulations of the State Board of Health, or (4), I do not think the indictment is sufficient because the defendant cannot know from the face of the indictment which statute or regulation makes the possession of the drug alleged illegal. To put it another way, since this statute incorporates several sources for portions of the definition of a prohibited drug, the indictment, if it relies on an incorporated source, must specifically include what source is being relied upon because the general descriptive words in the statute and the name of the drug do not in themselves fully and without uncertainty or ambiguity set forth all the elements necessary to constitute the offense.
I turn now to the Constitutional question. Every statute is clothed by the presumption of constitutionality. Collison v. State ex rel. Green, 9 W.W.Harr. 460, 2 A.2d 97 (Supr.Ct.1938); State v. Brown, 6 Storey 571, 195 A.2d 379 (Supr.Ct.1963); Fraternal Order of Firemen of Wilmington, Delaware, Inc. v. Shaw, 41 Del.Ch. 399, 196 A.2d 734 (Supr.Ct.1963). Courts presume every legislative act constitutional and indulge every intendment in favor of validity. Downs v. Jacobs, Del.Supr., 272 A.2d 706 (1970). These standards must be borne in mind as the record in this case is examined.
There was expert testimony taken at the hearing. Leonard Bednarczyk, who is a toxicologist employed by the State Department of Health and Social Services, testified as to the nature of the substances listed in the indictment. On the basis of his testimony, certain key facts were established. First, stelazine is the trade name for trifluoperazine and therefore the allegation of both of those substances is duplicitous. Stelazine, chloral hydrate, and butabarbital are central nervous system depressants. Stelazine is a tranquilizer. Chloral hydrate and butabarbital are somnifacient and hypnotic drugs. Stelazine and chloral hydrate fall within the first part of the definition of category (3) in that they are compounds that induce the effect of a hypnotic or somnifacient drug. Butabarbital, a derivative of barbituric acid, could fall within the definition contained in category (1)(B) as well as the definition contained in the first part of (3) since it induces the effect of a barbiturate.
Turning specifically to the first part of category (3) of the definition, the State's first argument is that since Dally is charged with possession of trifluoperazine, stelazine, chloral hydrate and butabarbital, which are clearly central nervous system depressants, the statute is not vague as to him and he, consequently, cannot question it. But this language does directly concern Dally's rights. Since the statute does not mention any of the substances in the Dally indictment, his possession is illegal only if the general language of the first part of category (3) extends to proscribe them. This is not a case where the defendant is attacking a classification portion of the statute not being relied upon by the State. Compare Wilson v. State, Del.Supr., 264 A.2d 510 (1970). Nor is this a case where the limits of definition and legislative intent are clearly apparent by the use of particular language in a criminal law even though such language may have other conceivable implications in other contexts. Compare State v. Jackson, Del.Super., 239 A.2d 215 (1968). Nor is this a case where the defendant is merely arguing that hypothetically the statute could be applied in an unconstitutional manner. Compare Wiggins v. State, Del.Supr., (November 27, 1970). In this case, the State is relying on the very statutory classification that the defendant attacks. His rights are adversely affected. He has standing. Wilson v. State, Supra.
The next question for decision is whether the definition in category (3) of a central nervous system depressant or stimulant drug as 'any natural or synthetic mixture or compound that induces the effect of a barbiturate, amphetamine, or hypnotic or somnifacient drug * * *' is sufficiently precise.
Penal statutes which create new offenses 'must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties * * *'. State v. Robinson, Del.Supr., 251 A.2d 552 at 554 (1969). See also State v. Chase, 11 Terry 383, 131 A.2d 178 at 180 (Super.Ct.1957). If a statute forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, then it violates due process of law. State v. Robinson, Supra; State v. Ayers, Del.Supr., 260 A.2d 162 at 166 (1969); State v. Deedon, 6 Storey 49, 189 A.2d 660 (Sup.Ct.1963).
Applying these tests to the case at hand, the first part of category (3) is void for vagueness. The statute does not explain what is meant...
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State v. Bruno
...The statutory definitions in section 204A.1 refer exclusively to federal legislation and regulations, and for this reason State v. Dally (Del.Super.1970) 272 A.2d 781 does not support defendant's contention. In Dally, the statutory definition of a depressant or stimulant drug in part referr......
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State v. Gula
...specificity. In each count they plainly state both the particular schedule and controlled substance involved. Compare State v. Dally, Del.Super., 272 A.2d 781 (1970). In Erlin v. United States, 413 F.2d 1036 (9th Cir. 1969), the Court of Appeals was faced with an argument similar to that ma......