State v. Miller
| Citation | 274 P. 245,127 Kan. 487 |
| Decision Date | 09 February 1929 |
| Docket Number | 28,197 |
| Parties | THE STATE OF KANSAS, Appellee, v. M. L. MILLER, Appellant |
| Court | United States State Supreme Court of Kansas |
Decided January, 1929.
Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. POISONS--Unlawful Possession of Narcotics--Physicians. Under the provisions of chapter 241 of the Laws of 1927 it is unlawful for any person to possess narcotics except certain designated classes under certain named regulations; such designated classes may possess such drugs, but to do so they must comply with specific regulations, including the use of federal forms. If these regulations are complied with physicians, as one of the excepted classes, may lawfully possess narcotics, but the possession of such drugs by a physician, even after he has complied with the regulations and used federal forms, is not lawful except for the purpose of use in the course of his practice as a physician.
2. SAME--Burden of Proof. And further, when the state has established a prima facie case against a defendant charged with possession of narcotics, the defendant is under the necessity of combating this prima facie case by reasonable and credible explanation of his possession of the property, consistent with his innocence, and his failure to make such explanation subjects him to the risk of conviction.
3. SAME--Instructions. The instructions considered and held to have fairly stated the issues.
4. SAME--Generally. In a prosecution under the narcotic act the record considered and held: (a) The evidence was sufficient to sustain the verdict and judgment of conviction; (b) cross-examination of the defendant by the court in an effort to elicit the truth was not improper; (c) various alleged errors considered and not sustained.
Elisha Scott and Randal C. Harvey, both of Topeka, for the appellant.
C. W. Mitchell, county attorney, and Theo. F. Varner, assistant county attorney, for the appellee.
OPINION
The defendant is a licensed physician and holder of a permit from the United States revenue department to dispense narcotics. He was arrested, charged with and convicted of unlawful possession of morphine, and appeals.
Section 1 of the narcotic statute contains this language:
"It shall be unlawful for any person to keep or have in his possession or under his control for personal use or otherwise, any opium or coca leaves, or any compound, salt, derivative or preparation thereof, and such possession or control shall be presumptive evidence of a violation of this section." (Laws 1927, ch. 241.)
There was evidence substantially to the effect that on October 18, 1927, the defendant was observed going down an alley behind a garage near his house, with a package under his arm which had the appearance of being the inner tube of an automobile; that he stopped, stooped over among some weeds and appeared to be scratching in the leaves; that after he had left, those who had observed him immediately investigated the place where he had stooped and found under some boards and rubbish a package consisting of a tin can inserted into a section of a rubber inner tube. In the can were a number of cubes of morphine.
The defendant contends that the statute does not condemn mere possession of narcotics by a physician; that he did not have a fair opportunity to meet the charges on which he was convicted and that the trial court abused its discretion in assuming the role of prosecutor.
Section 2 of the narcotic statute reads in part:
"Nothing contained in this section shall apply to the dispensing or distribution of any of the aforesaid drugs to a patient by a physician, dentist or veterinary surgeon registered under the laws of the state of Kansas, in the course of his professional practice only."
Considering only pertinent parts of the statute, it appears to be unlawful for any person to possess opium derivatives, except physicians (and certain other named classes) as "hereinafter provided." But the act fails to provide thereafter, in express terms, how a physician may lawfully possess such drugs. The defendant argues that if there is nothing "hereinafter provided" expressly as to possession, a physician may have an unlimited quantity of narcotics in his possession for any purpose he desires, as long as he observes certain formalities in dispensing them. In our opinion this does not follow. A legislative intent may be ascertained from an examination of the entire statute. (36 Cyc. 1131-1183.)
Section 2 of the act further provides that it shall be unlawful for any person (whether in the excepted class or not) to have possession of narcotics unless certain federal regulations are complied with.
"Every person who shall give an order as herein provided to any other person for any of the aforesaid drugs, shall at or before the time of giving such order, make or cause to be made, a duplicate thereof, on a form to be issued in blank for that purpose by the commissioner of internal revenue, and in case of the acceptance of such order shall preserve such duplicate for said period of two years, in such a way as to be readily accessible to inspection by the officers, agents, employees and officials hereinbefore mentioned." (Laws 1927, ch. 241, § 2.)
That is to say, physicians are excepted from the general prohibition, provided, (a) that they have complied with the federal regulations, and (b) that their possession is for use in the course of their practice only. The act provides regulations and prescribes the use of federal forms both for the obtaining and the selling or giving away of such drugs, but the exception is that "nothing contained in this section shall apply to the dispensing or distribution of any of the aforesaid drugs to a patient by a physician . . . in the course of his professional practice only." The federal regulations and forms as to dispensing and distribution of drugs are not required of physicians in the course of their practice only, but no exception is made as to the method by which physicians must obtain their narcotics. We think the following conclusions may fairly be deduced as to the legislative intent:
First: It shall be unlawful for any person to possess narcotics, except certain designated classes under certain named regulations.
Second: Certain designated classes may possess such drugs, but to do so they must comply with specific regulations, including the use of federal forms.
Third: If these regulations are complied with, physicians, as one of the excepted classes, may lawfully possess narcotics.
Fourth: But the possession by a physician, even after he has complied with the regulations and used federal forms, is not lawful unless for the purpose of use in the course of his practice.
The information charged the unlawful possession of opium derivatives. The defendant attempted to meet the charge by denying possession of the can and by showing that he was a licensed physician. The state made a prima facie case, and it then devolved upon the defendant to show some reason why he should come under an exception to the general prohibition because possession or control is presumptive evidence of a violation. Three conditions had to be met before his possession was lawful: (1) That the drug had been regularly obtained by the use of federal forms. (2) That the defendant was a licensed physician. (3) That the morphine was owned for the purpose of use in defendant's medical practice.
The defendant attempted to prove only the second condition, and in that respect failed to rebut the presumption created by his possession. He complains that he was tried on other charges than those set out in the information. This complaint is directed at a rather extensive cross-examination of the defendant, conducted largely by the court. In State v. Keehn, 85 Kan. 765, 118 P. 851, it was said:
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State v. Braun
...excuse, proviso, or exemption shall be upon the defendant.' There is nothing new about this provision in Kansas. In State v. Miller, 127 Kan. 487, 274 P. 245, it was held that when the state has established a prima facie case against a defendant charged with possession of narcotics, the def......
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State v. Gunn, 85,144.
...or exemption is not part of the description of the offense. (State v. Braun, 209 Kan. 181, 495 P.2d 1000 [1972], and State v. Miller, 127 Kan. 487, 274 Pac. 245 [1929].) Accordingly, the prosecution has no duty to prove on its case in chief that the accused is not within the exception. This......
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State v. Hammond
...209 Kan. 196, 495 P.2d 905; State v. Jones, 204 Kan. 719, 466 P.2d 283; State v. Winchester, 166 Kan. 512, 203 P.2d 229; State v. Miller, 127 Kan. 487, 274 P. 245; and State v. Keehn, 85 Kan. 765, 118 P. 851.) In recognizing the right of a trial judge to cross-examine witnesses we have alwa......
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State v. Wheeler, 44023
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