State v. Powell
| Decision Date | 11 February 1958 |
| Citation | 212 Or. 684,321 P.2d 333 |
| Parties | STATE of Oregon, Respondent, v. Dorothy Margaret POWELL, Appellant. |
| Court | Oregon Supreme Court |
Burton J. Fallgren, Portland, argued the cause and filed a brief for appellant.
Winston L. Bradshaw, Dist. Atty., Oregon City argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen.
Before PERRY, C. J., and ROSSMAN, BRAND and McALLISTER, JJ.
The defendant was indicted by the grand jury of Clackamas county on May 24, 1956, for violation of ORS 474.170, and on conviction was sentenced to a term of three years in the state penitentiary. The charging part of the indictment reads as follows:
'The said Dorothy Margaret Powell on or about the 25th day of July, A. D., 1954, in the said County of Clackamas and State of Oregon, then and there being, did then and there unlawfully and feloniously attempt to obtain a narcotic drug, to-wit: Dilaudid, by the use of a false name and address, to-wit: Mrs. Ed Bartlett, given name Margaret, 1415 Thiessen Road, Milwaukie 22, Oregon, while applying to a physician, to-wit: Dr. Jere J. Nelson, for a prescription for dilaudid tablets, when so giving said false name and false address, said act of defendant being, * * *'
Trial was had on the indictment on October 3, 1956, and a verdict of guilty was returned by the jury. The defendant appeals.
In this opinion we will refer to the plaintiff as the State.
The defendant in her brief argues numerous assignments of error, but, as we view the case, it is necessary to discuss but a single assignment. We will content ourselves with the question of whether or not error was committed in the trial court's failure to sustain the defendant's demurrer to the State's evidence, the demurrer being treated as the equivalent of a motion to direct a verdict of not guilty.
The undisputed facts in this case show that on July 20, 1954, defendant presented herself at the office of Dr. Jere J. Nelson, complaining of 'severe pain in the back and leg and in the abdominal area.' At this time the doctor made a general physical examination, finding that the defendant's 'blood pressure was moderately increased, there was tenderness over both kidney areas, and a urine specimen showed a considerable, amount of blood.' The doctor prescribed antibiotics, a sedative, and a narcotic for pain, dilaudid. On July 23, 1954, the defendant again came to Dr. Nelson's office complaining of pain and on this occasion he merely prescribed the narcotic dilaudid for the pain. Subsequently, and on July 25, 1954, the defendant called the doctor by telephone and told him she had an increase of symptoms 'for which I had seen her the two previous times and that she was out of medicine.' It appears at this time the doctor was suspicious of the amount of dilaudid the defendant was using and, after advising the defendant to come to his office, he called to his office Mr. Young, a police officer of the Oregon City Police Department. The defendant came to the doctor's office and the doctor took her into his private office where she explained 'she thought she had passed a kidney stone during the night and had a marked increase in her abdominal pain and pain with urination, and had passed more blood or was passing more blood in her urine.' The doctor explained to her that on the two previous visits he had 'given her more dilaudid than was customary and, also, more than was safe; that it would be impossible under ordinary circumstances to use that much in such a short time.' He explained that he did not feel he would be justified in giving her any more, and upon his refusal to give the defendant more of the drug she left his office. There is no question but that on the defendant's last visit she was seeking a prescription for more of the narcotic.
On the occasion of the defendant's first visit to the doctor's office, and before examination and prescribed treatment, she had given to the doctor's receptionist the name 'Mrs. Ed Bartlett' and her address as '1415 S.E. Thiessen Road, Milwaukie.' She had also told the doctor her given name was 'Margaret.' On her last call at the doctor's office when called she responded to the name of Bartlett. The doctor at all times prescribed medicines and treated the defendant under the name of Bartlett. The evidence discloses there was no such address on Thiessen Road, and there is evidence that her true name is Dorothy Margaret Powell.
The sole question is whether or not these facts constitute a violation of ORS 474.170. The portion of the statute material to this case is 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:
* * *
* * *
'(d) By the use of a false name or the giving of a false address.'
And ORS 474.990 reads as follows:
'Any person violating any provision of this chapter shall:
'(1) Upon conviction, be punished by a fine not exceeding $5,000, or by imprisonment in the state penitentiary for not exceeding 10 years, or both.'
It is a well-established rule that statutes treating of the same subject matter are to be construed together. State v. Buck, 200 Or. 87, 262 P.2d 495.
ORS 475.060 reads as follows:
* * *
* * *
'(4) Violation of this section shall be punished, upon conviction, by a fine of not more than $500 or by imprisonment in the county jail not to exceed one year, or both.'
Since both ORS 474.170 and ORS 475.060 were re-enacted by the legislature in the adoption of the Oregon Revised Statutes, we can but conclude that neither was to supersede the other and each was designed to meet a separate requirement for policing the use and dispensation of narcotics.
The State urges that ORS 474.170 has the intent and effect, among other things, of combatting the activities of the 'floater,'--the person who, desirous of obtaining narcotic drugs, goes from physician to physician complaining of an ailment, real or imaginary, and gives a different name at each stop. It can readily be seen that this practice would to a large extent render ineffectual certain requirements of the recording laws in that it would hinder the detection of the illicit user. Thus, the State argues, an individual with a genuine or contrived ailment who goes to a doctor and requests a prescription containing narcotics is guilty of an attempt to obtain narcotics by the use of a false name, and that an essential element of the crime, therefore, is the visit to the physician with the intent to obtain the narcotic. This was the theory upon which this case was prosecuted. In our opinion, after considering ORS ch. 474 in conjunction with ORS ch. 475, the State's theory, under the facts of this case, cannot be sustained.
It is established law that if there can be found no rational basis for distinguishing the acts committed by one person from the acts committed by another, the acts of one cannot be treated solely as a felony and the acts of the other solely as a misdemeanor. The equal protection clause of the Fourteenth Amendment prohibits such legislation. Thus, if section (d) of ORS 474.170 prohibits the same acts as ORS 475.060, insofar as the use of a false name and address is material, the same acts without distinguishing criteria must be as to all persons treated either as a felony or as a misdemeanor. They cannot constitute both. State v. Pirkey, 203 Or. 697, 281 P.2d 698. This is not to be construed as prohibiting the right of a legislature to permit a trial court in its discretion to pass different sentences upon different offenders for the same crime.
We cannot attribute to the legislature an intention to pass unconstitutional legislation. Smallman v. Cladden, 206 Cr. 262, 291 P.2d 749.
The facts set out above, if believed, will establish a violation of ORS 475.060. The defendant used a false name and address 'in obtaining treatment in the course of which narcotic drugs'...
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Lilly v. Gladden
...imprisonment to not more than one year in the county jail for such an offense. The principle relied upon is stated in State v. Powell, 1958, 212 Or. 684, 321 P.2d 333, where the court 'It is established law that if there can be found no rational basis for distinguishing the acts committed b......
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State v. Reid, 37256
...(1961). The Oregon case, State v. Pirkey, supra, has been distinguished at least nine times on various grounds. 1 In State v. Powell, 212 Or. 684, 321 P.2d 333 (1958), the Oregon court considered two narcotics statutes, ORS 475.060 and ORS 474.170, one of which appeared to make the use of a......
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Cronin v. State, 83-169
...import of its terms, with a view to effect the object of regulating and controlling traffic in narcotic drugs. See State v. Powell, 212 Or. 684, 692, 321 P.2d 333 (1958). Although the four words do have precise technical meanings in some legal contexts, their less precise everyday meaning i......
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State v. St. John, 59653
...import of its terms, with a view to effect the object of regulating and controlling traffic in narcotic drugs. See State v. Powell, 212 Or. 684, 692, 321 P.2d 333 (1958). Although the four words do have precise technical meanings in some legal contexts, their less precise everyday meaning i......