State v. Newstead, 44223
| Decision Date | 13 June 1955 |
| Docket Number | No. 44223,No. 1,44223,1 |
| Citation | 280 S.W.2d 6 |
| Parties | STATE of Missouri, Respondent, v. Sol NEWSTEAD, Appellant |
| Court | Missouri Supreme Court |
No attorney noted for appellant and no brief filed.
John M. Dalton, Atty. Gen., Paul McGhee, Asst. Atty. Gen., for respondent.
COIL, Commissioner.
Appellant, herein called defendant, was convicted of obtaining a narcotic drug by using a false name and address in violation of Section 195.170. Section references herein, unless otherwise indicated, are to RSMo 1949, V.A.M.S. He was sentenced to two years in the penitentiary in accordance with a jury verdict. He appeared pro se in the trial court and has filed a brief on this appeal.
The amended information charged that defendant had been convicted in Indiana of two prior offenses which if committed in this state would have been punishable by imprisonment in the penitentiary. Secs. 556.280 and 556.290. It further charged, in substance, that defendant feloniously obtained a prescription for, and feloniously obtained, the narcotic drug prescribed, by the use of a false name and address. We have carefully examined the amended information, and while we are of the opinion that it is inartfully drawn and perhaps subject to successful pre-trial attack, we are satisfied that, considered after verdict, the facts set forth in it sufficiently charged defendant under the provisions of the Habitual Criminal Act, Secs. 556.280 and 556.290; sufficiently charged all the essential elements of the offense of obtaining a narcotic drug by the use of a false name and address as provided for in Section 195.170; and set out the constituent facts and circumstances sufficiently to inform defendant of the offense with which he was charged. State v. Crawford, Mo.Sup., 251 S.W.2d 76, 77.
The record fails to show an arraignment or plea, but defendant was tried as if he had been arraigned and had entered a plea of not guilty; thus, the failure of the record to show arraignment and entry of a plea is not reversible error. 42 V.A.M.S. Supreme Court Rule 25.04; State v. Schramm, Mo.Sup., 275 S.W.2d 343, 344.
The state's evidence was substantial and sufficient to support the charge of the amended information. On January 31, 1953, defendant appeared at Dr. John G. Kellett's office and represented to the doctor that he was George Lowry residing at 7121 Pennsylvania Avenue. (Defendant had visited the same doctor three days prior to January 31 when he had complained of pain from an 'old osteomyelitis' resulting from an accident.) On January 31 defendant told Dr. Kellett that he was again having pain in his leg and that Dr. Kellett's partner, Dr. Eades, had attended defendant at defendant's home and had prescribed dilaudid, an opium derivative and a proper treatment for the condition. (Dr. Eades was out of the city on the 31st and the office records did not indicate such a call by Dr. Eades.) Dr. Kellett prescribed for George Lowry of 7121 Pennsylvania Avenue twelve 1/20-grain dilaudid tablets and gave the signed prescription to defendant. Defendant, representing himself to be George Lowry, obtained twelve 1/16-grain dilaudid tablets by having the prescription filled by a druggist. Dilaudid is a narcotic drug as defined in Section 195.010(13, 14). Defendant was not George Lowry residing at 7121 Pennsylvania Avenue but was Sol Newstead and did not reside at 7121 Pennsylvania Avenue. After his arrest on February 23, 1953, defendant orally stated to police officers that he had used the false name and address 'to obtain narcotics.'
Section 195.170(1) provides: 'No person shall obtain or attempt to obtain a narcotic drug, or procure or attempt to procure the administration of the narcotic drug, by fraud, deceit, misrepresentation, or subterfuge or by the forgery or alteration of a prescription or of any written order; or by the concealment of a material fact; or by the uses of a false name or the giving of a false address.'
It is clear that the foregoing subsection makes it a separate offense 'to obtain a narcotic drug, * * * by the uses of a false name or the giving of a false address.' While testimony adduced by the state may not have shown that the prescription was written or filled because of the false name or address given by defendant, and it may be that certain of the state's evidence may be construed as tending to show the contrary, still, in view of defendant's admission that he did in fact use a false name and address for the purpose of obtaining a narcotic drug, and in view of the further evidence that he did in fact obtain a narcotic drug under the false name and address admittedly given for the purpose of obtaining it, we are of the opinion that the evidence was sufficient to sustain the essential charge contained in the amended information.
Defendant impliedly complains that the proof was insufficient to show that the tablets furnished him were in fact dilaudid. The proof in this respect was not as certain as it could have been. The fact, however, that the druggist testified, without objection, that he filled the prescription which called for 12 dilaudid tablets and gave the tablets to defendant was sufficient, even though on cross-examination it developed that the druggist filled the prescription by removing 12 tablets from a bottle which presumably was received from a drug company which, according to its label, contained dilaudid tablets and that there was no further proof that the tablets furnished were in fact dilaudid tablets.
There is obviously no merit in defendant's contention that the proof failed because the prescription as written called for 1/20-grain tablets and was filled with 1/16-grain tablets. The essential fact was that defendant obtained dilaudid, a narcotic drug, not proved by defendant, Sec. 195.180, to be within any exemption provided for in Section 195.080 of the Narcotic Drug Act.
The state's evidence was sufficient to show one prior conviction of defendant in Indiana under the name of George Willard of the offense of 'Fraud And Deceit to Obtain Narcotic Drugs'; defendant's sentence therefor and discharge upon compliance with sentence. Defendant does not here contend that he is not the same person as 'George Willard' there convicted; and the jury could have so found from viewing a picture (part of an exhibit) which was attached to a document showing incarceration in, and discharge from, the Indiana State Farm. Defendant's contentions on this aspect of the case seem to be: that inasmuch as the offense of which defendant was priorly convicted was a misdemeanor in Indiana, it was improper to show such as a prior conviction under the Missouri Habitual Criminal Act; that the state's attorney improperly displayed 'two rogue's gallery pictures of defendant'; and that it was improper to permit reference to 'two former misdemeanors'.
Fraud and deceit to obtain narcotic drugs as defined by Burns' Indiana Statutes, Section 10-3535, is, and was at trial time, essentially the same offense as one of those defined by Section 195.170(1) RSMo 1949, V.A.M.S. That offense is made a felony in Missouri by Section 195.200 (), and is and was punishable in Missouri by imprisonment in the penitentiary. The fact that at the time of the prior offense, such was a misdemeanor in Indiana is of no significance. This, because Section 556.290 provides that one who has been convicted of an offense in another state which if committed in this state would be punishable in this state by imprisonment in the penitentiary shall be subject to the punishment prescribed for habitual criminals. Nor does the fact that defendant...
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