State v. Karathanos, 12079

• Decision Date: 01 February 1972
• Docket Number: No. 12079,12079
• Citation: 493 P.2d 326,29 St.Rep. 81,158 Mont. 461
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Nicholas Arthur KARATHANOS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 326

493 P.2d 326

158 Mont. 461

The STATE of Montana, Plaintiff and Respondent, v. Nicholas Arthur KARATHANOS, Defendant and Appellant.

No. 12079.

Supreme Court of Montana.

Submitted Jan. 11, 1972.

Decided Feb. 1, 1972.

Sandall, Moses & Cavan, Charles F. Moses, argued, Billings, for defendant and appellant.

Robert L. Woodahl, Atty. Gen., J. C. Weingartner, Deputy Atty. Gen., argued, Helena, Harold F. Hanser, County Atty., argued, Billings, for plaintiff and respondent.

FRANK E. BLAIR, ^* District Judge.

In this cause defendant, Nicholas Arthur Karathanos, was charged with the criminal sale of dangerous drugs in Yellowstone County and was convicted by a jury on March 30, 1971. On April 13, 1971, he was sentenced to imprisonment in the state prison for a period of twenty years. Shortly thereafter, defendant was admitted to bail in the sum of $15,000, which was furnished. On June 1, 1971, defendant appealed.

Substantially the facts in this case are:

Defendant is 32 years of age, unmarried, a field systems engineer for Collins Radio Company and has never previously been charged with any crime. On February 13, 1970, defendant was introduced to Hazel Jean Langford at the Circle Inn, Billings, Montana, by a bar maid. Defendant was in the company of a man named Thornton. The three sat down at a table adjacent to the bar at the Circle Inn. Defendant ordered a round of drinks. During the ensuing conversation, defendant asked Mrs. Langford what kind of stuff she wanted. Mrs. Langford asked him what kind of stuff he had. He replied 'that he only had Dexedrine left.' Defendant then asked what she wanted that night and she informed him that she had $40. Defendant said that he could sell her 100 caps of Dexedrine for $12. She told him that she had $500 set aside to buy stuff with; defendant then stated that he could sell her 4,000 caps of Dexedrine for $480, and he would deliver them the next day between 1:00 and 2:00 o'clock, p. m. He also told Mrs. Langford 'that he had a drop and that he never kept the stuff in his apartment, and he said also, 'I wholesale only, if I were to push on the street I would be busted in two days."

Defendant and Mrs. Langford then went outside the Circle Inn, where defendant's car was parked. Both got in the car and defendant reached under the seat ans pulled out a package of 100 caps of Dexedrine; Mrs. Langford paid him $12 and he gave her the Dexedrine. The next day defendant called on Mrs. Langford at an apartment she was occupying temporarily. She offered defendant a cup of coffee and they sat down and talked for a few minutes. He asked her if she had the 'bread' ready. She said 'yes'. She actually had three $100, two $50 and five $20 bills, all of which was marked money given her by the sheriff's office, her employer. Defendant, upon learning the money was available, went out to his car and returned in a few minutes with four cellophane packages containing about 1,000 tablets each, i. e. 4,000 in all, for which Mrs. Langford paid him $480 in marked money. Defendant put the money in his front pants pocket. Mrs. Langford, a bit later, turned over the tablets of Dexedrine to Jim Meeks, then a deputy sheriff. Defendant was arrested by sheriff's officers as he left Mrs. Langford's apartment.

During her conversations with defendant, Mrs. Langford had an electronic transmitter concealed on her person and the sheriff's office could hear much, if not most, of the conversation between them. The sheriff's office explained that this was done primarily for Mrs. Langford's protection.

The defense called as a witness one Dr. Wesley Duane Albert, a lecensed physician and surgeon from Laguna Beach, California, who had practiced fifteen years, specializing in nutrition, obesity and chronic diseases such as diabetes and arthritis. The doctor first met defendant in the spring of 1968 and treated him in August 1969, at which time defendant's case was diagnosed as a moderate form of narcolepsy. Defendant testified that prior to contacting Dr. Albert he had been injured in Saigon and thereafter would fall asleep momentarily, for no apparent reason. Dr. Albert prescribed dextro-amphetamine sulphate in an amount of 5,000 capsules. Dexedrine is a trade name for dextro-amphetamine sulphate. The quantity, as explained by the doctor, was because defendant represented to him that his employer was going to send him to South America in the spring of 1970, for several years, possibly even four or five years. Dr. Albert had not seen the defendant since he gave him the 5,000 capsules of the drug prescribed, until the trial.

Defendant raises seven issues for review on this appeal. They can be briefly summarized as follows:

A. Did defendant come within the exceptions of the Montana Dangerous Drug Act?

B. Was there evidence sufficient to convict and prove that defendant did not come within the exceptions of the Montana Dangerous Drug Act?

C. Did the trial court err in refusing to grant the defendant's motion to dismiss at the conclusion of the state's case?

D. Did the trial court err in refusing to give defendant's offered instructions 18, 19, 20, 21 and 22?

E. Are sections 54-131 and 54-132, R.C.M.1947, of the Montana Dangerous Drug Act so ambiguous and uncertain, in that the acts prohibited are not sufficiently set forth, as to bar prosecution?

F. Was punishment of twenty years in the state prison cruel and unusual punishment under the facts in this case?

G. Was there entrapment in this case?

Issues A, B, C and E can be treated together but before our discussion we set forth pertinent testimony of Dr. Wesley Albert:

'Q. Would you tell us what medication you prescribed?

'A. I prescribed a dextro-amphetamine sulphate.

'Q. Do you know how many capsules you gave to him, or dispensed to him at that time?

'A. Yes, I gave him 5,000 capsules.'

From this testimony it appears that Dr. Albert was a dispensing physician and carried his own drugs. It does not appear that he wrote a prescription, nor that a prescription was 'filled' at a local or other pharmacy. Dr. Albert, himself, dispensed 5,000 Dexedrine capsules to defendant.

The law under which defendant was charged is section 54-132(a), R.C.M.1947:

'(a) A person commits the offense of a criminal sale of dangerous drugs if he sells, manufactures, prepares, cultivates, compounds or processes any dangerous drug as defined in this act and does not come within the exceptions of section 3 (54-131).'

Regular physicians and surgeons may prescribe drugs for their patients in writing, or dispense. We assume that Dr. Albert dispensed 5,000 capsules of Dexedrine to the defendant, in full conformity with California law. There is nothing in the record to indicate otherwise, whatever we may think of the impropriety of dispensing 5,000 capsules of Dexedrine at one time, to one person, by a physician who is a medical doctor.

Section 54-131, R.C.M.1947, reads in material part:

'(2) The following persons are excepted from the designated criminal offenses of sections 4 and 5 (54-132 and 54-133) of this act while acting in the ordinary and authorized course of their business, profession, occupation, employment or religious activity and whose activities in connection with dangerous drugs are solely as specified in this section; * * *

'(j) A person to whom or for whose use any dangerous drug has been prescribed, sold, or dispensed by an authorized practitioner or pharmacist may lawfully possess such drug.'

Under the evidence here we are of the opinion that the defendant lawfully possessed the Dexedrine capsules in evidence in this case.

However, what we are concerned with here is not his possession, but the sale of the lawfully possessed drug to the sheriff's undercover agent. The argument of defendant that section 54-132, R.C.M.1947, precludes prosecution for the sale of dangerous drugs by a person who comes within section 54-131(2)(j), R.C.M.1947, is without merit. Subsection (j) is not an exemption of status but of certain activities and is controlled by section 54-131(2), which reads:

'(2) The following persons are excepted from the designated criminal offenses of sections 4 and 5 (54-132 and 54-133) of this act while acting in the ordinary and authorized course of their business, profession, occupation, employment or religious activity or whose activities in connection with dangerous drugs are solely as specified in this section.' (See Subdivisions (a) through (k)).

Thus defendant's argument that he is exempt is without foundation. Section 54-132, R.C.M.1947, is clear and unambiguous, so clear and unambiguous in fact, that it construes itself. So, too, is subdivision (2) of section 54-131, R.C.M.1947. Subdivisions (a) through (k), under section 54-131(2), except from designated criminal offenses of sections 54-132 and 54-133, those acting in the ordinary and authorized course of their business, profession, occupation, employment or religious activity and whose activities in connection with dangerous drugs are solely as prescribed in this section.

Defendant, under section 54-131(2)(j), R.C.M.1947, in the context in which it appears and under the evidence, was legally authorized to possess and use in the treatment of his 'narcolepsy' the 5,000 capsules of Dexedrine as directed by Dr. Albert, but in no means was he authorized to sell them in outright defiance of the plain terms of section 54-132, R.C.M.1947.

The contention of defendant that it was the duty of the state to plead and prove that defendant did not come within the exceptions stated in section 54-131, R.C.M.1947, is without foundation. The state is not bound to negate an exception contained in a statute; such an exception as we are considering here is a matter of defense. In Fitzpatrick v. Stevenson, 104 Mont. 439, 443, 444, 67 P.2d 310, 312, we reaffirmed the following rule:

'It has often been held by this court that, in a criminal case, it is not necessary for the state in its information to...