State v. Livingston
| Decision Date | 23 June 1970 |
| Citation | 90 Adv.Sh. 1363,469 P.2d 632,2 Or.App. 587 |
| Parties | STATE of Oregon, Respondent, v. David LIVINGSTON, Appellant. |
| Court | Oregon Court of Appeals |
James R. Carskadon, Jr., Milwaukie, argued the cause for appellant. On the brief were J. Raymond Carskadon, Portland, and Redman & Carskadon, Milwaukie.
Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.
Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.
Defendant was convicted of attempting to unlawfully obtain a narcotic drug and sentenced to three years' imprisonment. He asserts on this appeal that (1) the court erred in denying his motions for acquittal, and (2) the court's instructions were erroneous in certain particulars hereinafter mentioned. At the conclusion of the state's case defendant moved for a judgment of acquittal under ORS 136.605. Upon denial of this motion, defendant rested his case without putting on any evidence and then moved for a directed verdict of acquittal. This motion was also denied.
In passing upon the denial of these motions, an appellate court should review the evidence in the light most favorable to the state and should sustain the trial court's action if there is any substantial evidence to support the verdict. State v. Shipman, Or.App., 90 Adv.Sh. 1147, 468 P.2d 921, decided May 7, 1970.
The indictment against defendant reads in part as follows:
'DAVID LIVINGSTON is accused by the Grand Jury of Multnomah County and State of Oregon, by this indictment of the crime of ATTEMPTING TO UNLAWFULLY OBTAIN A NARCOTIC DRUG committed as follows:
'The said DAVID LIVINGSTON on or about the 26th day of August, A.D.1968, in Multnomah County and State of Oregon, did unlawfully and feloniously by fraud, deceit, misrepresentation and subterfuge, attempt to obtain a certain narcotic drug, to-wit, Numorphan, from one John N. Kaegi * * *.'
The evidence indicates that at the time and place charged, defendant, who had previously been a customer of the drug store, presented a prescription for a drug known as Numorphan to a pharmacist, John N. Kaegi, at Kaegi's Laurelhurst Pharmacy in Portland. Kaegi testified that he was apprehensive about the prescription for the following reasons: it was for Numorphan, a Class A narcotic; the University of Oregon Medical School did not normally prescribe this drug and did not normally issue prescriptions totally handwritten in the form in which this one was presented to him; and he did not recognize the doctor's name, which was T. Morrison. He asked defendant to wait while he checked on the prescription. Upon checking Kaegi learned that there was no Dr. Morrison registered with the medical school so he told defendant he would have to wait until the medical school called back about the prescription. At this time defendant stated he could not wait, took back the prescription form and left the pharmacy. Kaegi testified defendant had never before requested the return of a prescription and that he said he would see if he couldn't get the person it was for to get it filled. He was in the pharmacy about 15 minutes.
The prescription was on a University of Oregon Medical School blank, was entirely handwritten and purported to prescribe Numorphan tablets for one Donna Livingston. Defendant's wife's name was Donna. The University of Oregon Medical School had no record of a patient named Donna Livingston. Evidence from a dental school official indicated a Donna Livingston had been a patient at the dental school clinic three months after the offense charged here but no medication had been prescribed for her and the dental school records indicated defendant was her husband. The evidence disclosed that there was no Dr. Morrison connected with the University of Oregon Medical School or University of Oregon Dental School.
The foregoing facts can be summarized as follows: Class A narcotic; unrecognized doctor; handwritten University of Oregon Medical School prescription; unusual drug for medical school to prescribe; defendant's wife not a medical school patient; defendant's novel request for return of prescription; and the pharmacist's apparent questioning of the prescription's validity. These facts, which culminated in defendant's departure with the prescription form, permit a reasonable deduction by the jury that the prescription was false and defendant knew it.
The defendant contends also under this assignment of error that there is no evidence in the record to show that Numorphan qualifies as a narcotic drug under the statutes. ORS 474.010(18) states in part:
"Narcotic drugs' mean * * * opium * * *.'
ORS 474.010(12) defines opium as follows:
"Opium' includes morphine, codeine and heroin, and any compound, manufacture, salt, derivative, mixture or preparation of opium.'
A police chemist with a bachelor's degree in chemistry and 21 years' experience in police laboratory work testified that Numorphan was derived from thebaine, one of the constituent elements of opium. Thus it comes within the above definition of opium.
The defendant's second assignment of error asserts that the trial court erred in failing to instruct the jury as to the meaning of the words 'fraud, misrepresentation, deceit, and subterfuge' which appeared in the indictment. Defendant contends that the above words should be defined to the jury by the trial court where they have a technical meaning in law. The state contends that the terms are used in their ordinary nontechnical sense, and that it is not necessary to instruct the jury as to their meaning in an indictment drawn under ORS 474.170. This statute reads in pertinent part as follows:
'(1) No person shall obtain or attempt to obtain a narcotic drug, or procure or attempt to procure the administration of a narcotic drug:
'(a) By fraud, deceit,...
To continue reading
Request your trial
-
Com. v. Johnson
...U.S. 972, 94 S.Ct. 3179, 41 L.Ed.2d 1143 (1974). Witherspoon v. State, 258 Ind. 149, 151, 279 N.E.2d 543 (1972). State v. Livingston, 2 Or.App. 587, 592-594, 469 P.2d 632 (1970). But see State v. Shepard, 442 S.W.2d 58, 60 (Mo.1969). The conclusion that a jury was not misled may be based up......
-
White v. State, 2--673A142
...a derivative of opium); Allen v. State (1972), Tex.Cr.App., 487 S.W.2d 120 (Demoral, identified with isonipecaine); State v. Livingston (1970), 2 Or.App. 587, 469 P.2d 632 (Numorphan, brought within the statutory definition of opium by expert Methadone, as described in the testimony given, ......
-
State v. Dixon
...most favorable to the state and will sustain the denial if there is any substantial evidence to support the verdict. State v. Livingston, 2 Or.App. 587, 469 P.2d 632 (1970); State v. Shipman, 2 Or.App. 359, 468 P.2d 921 (1970). Defendant was charged with armed robbery. Summarized briefly, t......
-
Robinson v. State
...doctors, druggists and pharmacists from fraud. State v. Osborn, 16 Ariz.App. 573, 494 P.2d 773, 775 (1972); State v. Livingston, 2 Or.App. 587, 469 P.2d 632, 634 (1970); State v. Blea, 20 Utah 2d 133, 434 P.2d 446, 448, 25 A.L.R.3d 1113 (1967); State v. Lee, 62 Wash.2d 228, 382 P.2d 491, 49......