State v. Dutton Drugs, Inc.

• Decision Date: 29 July 1965
• Citation: 3 Ohio App.2d 118,209 N.E.2d 597
• Parties: , 32 O.O.2d 204 The STATE of Ohio, Appellee, v. DUTTON DRUGS, INC., Appellant. The STATE of Ohio, Appellee, v. DUTTON, Appellant.
• Court: Ohio Court of Appeals

Page 118

3 Ohio App.2d 118

209 N.E.2d 597, 32 O.O.2d 204

The STATE of Ohio, Appellee, v. DUTTON DRUGS, INC., Appellant.

The STATE of Ohio, Appellee, v. DUTTON, Appellant.

Court of Appeals of Ohio, Fourth District, Meigs County.

July 29, 1965.

William Jenkins, Gallipolis, for appellee.

Crow, Crow & Porter, Pomeroy, for appellants.

GRAY, Judge.

Two criminal cases, charging Dutton Drugs, Inc., and Dale McClure Dutton, individually, with misdemeanors, are before this court on appeal from the Court of Common Pleas Court of Meigs County.

One information was filed against Dale McClure Dutton, in case No. 5560, wherein he was charged with unlawfully selling Seconal 1 1/2 capsules when he was not a registered pharmacist or registered assistant pharmacist licensed by the Ohio State Board of Pharmacy, in violation of Section 4729.28, Revised Code.

Another information, filed in case No. 5559, charged Dutton Drugs, Inc., by its president and officer, Dale McClure Dutton, with operating a retail drugstore without having in the employ of the corporation a pharmacist licensed under the laws of Ohio in full and actual charge of such retail drug store, in violation of Section 4729.27, Revised Code.

The defendants herein will be referred to in the singular as defendant.

On April 3, 1963, Jack R. Lawry, a Narcotic Drug Inspector for the state of Ohio, made a purchase of Seconal from defendant, Dale McClure Dutton. As a result, the two informations were filed. The matters were consolidated, a trial was had and a conviction of defendant on both informations resulted.

Defendant appealed and assigned the following errors:

(1) That the verdict in case No. 5560 is not sustained by sufficient evidence, and is contrary to law.

(2) That the verdict in case No. 5559 is not sustained by sufficient evidence and is contrary to law.

(3) That the trial court refused to admit evidence of the defendant that is prejudicial to the defendant.

(4) That the prosecuting attorney committed misconduct in his argument to the jury, which is prejudicial to the defendant.

(5) That the verdicts in cases Nos. 5559 and 5560 in the Common Pleas Court, Meigs County, Ohio, are contrary to law by virtue of the erroneous charges given by the trial court.

(6) That the verdict in case No. 5560 is contrary to law since the state of Ohio did not prove all necessary elements of the crime.

(7) That trial court admitted evidence of the state of Ohio over objection of the defendant, which is prejudicial to the defendant.

Defendant claims that he was entrapped by agent Lawry and for this reason his conviction should be set aside.

Basically, the issue presented is refined to the question whether defendant had the idea of committing the offense originally, or whether the offense originated in the mind of agent Lawry. Was defendant an unwary law violator or was he an unwary innocent? Stated in another way, was defendant induced by the investigation to violate the law, or was he merely presented with an opportunity to do so? From reading the record we have no hesitancy in determining the action of defendant to be in the latter category.

It is not difficult for us to conclude that he had been in the habit of making such sales to other persons. He appeared to be willing to make the sale of Seconal in this instance. Section 2945.59, Revised Code, permits the prosecution, under certain circumstances, to present evidence of other like acts to show defendant's motive or intent, the absence of mistake or accident on his part, or defendant's scheme, plan or system in doing an act. The prosecution availed itself of the provisions of this law. Defendant, on cross-examination, admitted that he had pleaded guilty in 1961 to charges similar to the ones with which he is presently accused. Such an admission engates entrapment in the instant cases. He was ready and willing to commit the offense as shown by his ready complaisance.

As stated in Matysek v. United States (1963), 9 Cir., 321 F.2d 246, at page 248:

'The defense of entrapment is not established as a matter of law by simply showing 'that the particular act was committed at the instance of government officials.' * * * Relevant to the issue is the predisposition and willingness of the accused to commit the crime and the criminal design of the accused.' (Sorrells v. United States, 287 U.S. 435, 451, 53 S.Ct. 210, 77 L.Ed. 413, is cited.)

The rule has been stated that there is no entrapment where criminal intent originates in the mind of the accused and authorities merely afford opportunities or facilities for commission of the offense.

Johnson v. United States, 115 U.S.App. D.C. 63, 317 F.2d 127; United States v. Orza (C.C.A. 2), 320 F.2d 574; Marin v. United States (C.C.A. 9), 324 F.2d 66; State v. Miclau, 104 Ohio App. 347, 351, 140 N.E.2d 596; State v. Gutilla, 94 Ohio App. 469, 116 N.E.2d 208; State v. Miller, 85 Ohio App. 376, 88 N.E.2d 614; State v. Schubert, 80 Ohio App. 132, 133, 75 N.E.2d 216; State v. Good, 110 Ohio App. 415, 165 N.E.2d 28.

This assignment of error is not well taken.

Defendant is charged with selling a drug without being licensed to do so by the state of Ohio. Nowhere in the information filed against him in case No. 5560, or in the evidence presented at the trial of the cause, or in the court's charge to the jury, is the drug referred to as anything but Seconal. 'Seconal' happens to be the trade name for a barbiturate manufactured by Eli Lilly and Company. Other pharmaceutical houses have like products under other brand names. Seconal is a trade name and not a generic term.

It has been suggested by the prosecution that judicial notice be taken of the contents of the official United States Pharmacopoeia or the official National Formulary to provide the meaning for the term Seconal.

This same point was raised in the case of State v. Winterich, 157 Ohio St. 414, 421, 423, 105 N.E.2d 857, 861. The court said (Stewart, J.):

'Assuming that the court may take judicial notice of what is listed in the pharmacopoeia and formulary, under the definition of 'drug' in Section 1296-1, General Code, it is not sufficient that the article be recognized in the pharmacopoeia or formulary, but to make the article a 'drug' it must, in addition, be intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease, and to constitute any other article a 'drug' it must be intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals or must be an article (other than food) intended to affect the structure or any function of the body of man or bodies of other animals. Therefore, the charge that an article is a drug, simply because it is listed in the pharmacopoeia or formulary, without qualifying it by its intended use, is an incorrect statement under the law of Ohio and that court committed prejudicial error in so charging.

'* * * [I]t is still the law of Ohio that a defendant in a criminal action cannot be convicted on general principles or mere suspicion, and in order to convict it is essential that all material elements of the offense charged must be proved beyond a reasonable doubt. That has not been done in the present case * * *.'

The trial court had the mandatory duty to instruct the jury as to the law of the case. It was required to define the crime, which it did not do. It was crucial that the jury understand the meaning of the words defining the crime.

The failure of the prosecution to present evidence describing the intended use of Seconal and the failure of the court to instruct the jury as to the law to be applied to such evidence, is to assume that jurors are educated in the law and medicine--an assumption which no one should attempt to justify.

We believe that Winterich is dispositive of this assignment of error which is well taken.

Defendant's assignment of error No. 5 presents a most serious complaint of error on the part of the trial court.

The trial court in its charge to the jury said:

'I believe the court can instruct you and will instruct you that the reference in these statutes to registered pharmacists or registered assistant pharmacists is to those persons registered as pharmacists or assistant pharmacists licensed under the state of Ohio. This burden would be upon defendant to establish that he did have such a license.' (Emphasis added.)

It is absolutely essential that the prosecution prove beyond a reasonable doubt each and every element of the crime that is averred in the information. The trial court by the above charge, relieved the prosecution of the necessity of proving that defendant was not a licensed pharmacist by the laws of Ohio, and erroneously so.

Both information alleged that defendant was not licensed as a pharmacist by the state of Ohio. The prosecution was very careful to prove that defendant did not have such a license, and some of this evidence was admitted over the objection of defendant. Hence the trial court had to be aware of this matter.

We are of the opinion that the trial court committed prejudicial error in putting this burden on defendant. Incidentally it should be noted that when the burden of proof was placed on the defendant no degree of proof in relation thereto was stated or defined.

This same question arose early in Ohio jurisprudence. The first reported case is Hirn v. State (1852), 1 Ohio St. 15; the next was Cheadle v. State (1855), 4 Ohio St. 477; then following were Howard v. State (1860), 11 Ohio St. 328; Moody v. State (1866), 17 Ohio St. 110; United States v. Cook (1872), 17 Wall. 168, 84 U.S. 168, 21 L.Ed. 538; Billigheimer v. State (1877), 32 Ohio St. 435; Seville v. State (1892), 49 Ohio St. 117, 30 N.E. 621, 15 L.R.A. 516; Jones v. State (1896), 54 Ohio St. 1, 42 N.E. 699; State v. Hutchinson (1897), 55 Ohio St. 573, 45 N.E. 1043; Hale v. State (1898), 58 Ohio St. 676, 51 N.E. 154; Brinkman v. Drolesbaugh (1918), 97 Ohio St. 171, 119 N.E. 451,...