State v. Wong Fong
| Citation | 241 P. 1072,75 Mont. 81 |
| Decision Date | 14 December 1925 |
| Docket Number | 5800. |
| Parties | STATE v. WONG FONG. |
| Court | United States State Supreme Court of Montana |
Appeal from District Court, Yellowstone County; O. F. Goddard Judge.
Wong Fong was convicted of selling cocaine, and he appeals. Affirmed.
Guy C Derry and Myers & Huntington, all of Billings, for appellant.
L. A Foot, Atty. Gen., and S. R. Foot, Asst. Atty. Gen., for the State.
Wong Fong, found guilty of selling cocaine, was sentenced to imprisonment in the state prison at hard labor for an indeterminate term of not less than five nor more than ten years, and to pay a fine of $1,000. He moved for a new trial, which by order the court denied. He has appealed from the judgment and the order.
1. The information charges that at a time and place the defendant "committed the crime of selling and disposing of narcotics," in that he "did then and there willfully, wrongfully, unlawfully, and feloniously sell and dispose of, at retail, certain narcotics, to wit, one-fourth dr. of cocaine, a derivative of coca leaves, to another person," and so forth. In this court the defendant's case has been presented with great sincerity and ingenuity. It is argued that the judgment is void, for the reason that it is impossible to tell under what section of the Codes the information was drawn. It is pointed out that the same subject-matter is covered in some measure by sections 3186, 3189, and 11239 of the Revised Codes of 1921, and that different penalties are prescribed for infractions of these several statutes.
Section 3189 was enacted as section 1 of chapter 202 of the Session Laws of 1921, p. 400. The court, having this section (3189) in mind, and without objection, instructed the jury that the statute upon which this information is based, "or so much thereof as is applicable to this particular case, reads as follows: 'It shall be unlawful for any person to sell, barter, exchange, distribute, give away, or in any manner dispose of, at retail, or to a consumer, opium or coca leaves, or any compound, manufacture, salt, derivative, or preparation thereof, within this state, except upon the original written prescription of a duly licensed physician, duly licensed to practice medicine in Montana."' Penalties for the violation of this section are provided for in section 3202, R. C. 1921, as amended by the Nineteenth Legislative Assembly. Session Laws 1925, p. 39. It will be noted that the word "cocaine" does not appear in section 3189, which is a part of the Political Code; but it is one of the drugs specified in section 11239, enacted in 1895 as a part of the Penal Code, which provides that every person who sells, or in any way disposes of, to another person, any morphine, opium, cocaine, chloral hydrate, or any of their compounds, except to licensed physicians, or on the authority of a certificate of such licensed physician, is punishable by a fine not exceeding $200. In section 3186, enacted in 1911, reference is made to opium, morphine, alkaloid cocaine, and other drugs. Here the penalty is not less than $50 nor more than $500, or by imprisonment in the county jail for a period of not less than 60 days nor more than 100 days, or by both such fine and imprisonment. Section 3188, R. C. 1921.
An examination of the statutes convinces us that the Legislative Assembly, in enacting chapter 202 of the Laws of 1921, intended thereby to supersede the provisions of sections 11239 and 3186 in so far as they relate to opium or coca leaves, or any compound, manufacture, salt, derivative, or preparation thereof. The legislative purpose undoubtedly was to curb the illicit traffic in the drugs comprehended, which, as everybody knows, then was becoming a serious menace to the body politic. The last section of chapter 202 provided heavy penalties for an infraction of the act. An attempt to increase these penalties in 1923 failed (State v. Mark, 69 Mont. 18, 220 P. 94), but in 1925 the Legislative Assembly again took up the subject, and by amending section 3202 (formerly chapter 202, § 15, Laws 1921) provided the heavy penalties which now obtain (Session Laws of 1925, p. 39), and under the weight of which the defendant suffers. To the extent, then, that section 3189 comprehends, or conflicts with, the subject-matter of sections 3186 and 11239, it supersedes those sections and is controlling. State v. Miller, 69 Mont. 1, 220 P. 97; In re Naegele, 70 Mont. 129, 224 P. 269. The court's assumption that the information rests upon section 3189 was correct.
The main argument for defendant, however, proceeds upon the hypothesis that the state failed to prove the essential allegation that the substance which the defendant sold was a derivative of coca leaves. There was ample proof that the defendant sold a package of cocaine to Davis, the state's witness. But is cocaine a derivative of coca leaves? The only evidence upon the point was given by one Williamsen, a chemist, who testified that he found the contents of the package which the defendant sold "to be cocaine; cocaine is an active alkaloid of the coca leaf or leaves." It is insisted that, as the witness did not tell the jury that cocaine is a derivative of coca leaves, there is a total failure of proof on this essential allegation. Many definitions of the words "alkaloid," "derivative," and "cocaine" are presented in the brief. After a comparison of these, and an analysis of the proof, we think defendant's point, though ingenious, is not substantial. The witness said:
"Cocaine is an active alkaloid of the coca leaf or coca leaves."
The key to the interpretation of this sentence is "of." This preposition, as here employed, means "from" (Webster's New International Dictionary); it denotes origin, source, or that from which something issues, proceeds, or is derived. "Do men gather grapes of thorns, or figs of thistles?" Matthew, vii, 16. Century Dictionary. A derivative is that which is derived; anything obtained or deduced from another. Same authorities. The use of the word "alkaloid" by the witness was not important. He might as well have used the comprehensive word "substance." Had he said "substance," probably no question would have been raised. An alkaloid from coca leaves necessarily is a derivative of coca leaves.
2. It is insisted that the court erred in overruling the objection of defendant to the admission in evidence of the package alleged to have been sold to Davis. Peter Lauritsen and Henry Davis, at the time the offense is alleged to have been committed, were federal narcotic agents. Davis testified that he went to the door of Wong Fong's office or drug store but the door was closed. He knocked, the defendant opened the door, and Davis went in. Being asked what he wanted, Davis replied, "Five dollars' worth of cocaine." Defendant said, "Give me the $5." And...
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