160 Ky. 32 | Ky. Ct. App. | 1914
Opinion of the Court by
Reversing.
The following indictment was returned by tbe grand jury of Washington County against tbe appellee, W. S. Gabhart, a regular licensed and practicing physician:
“Tbe grand jury of Washington County, in tbe name and by tbe authority of tbe Commonwealth of Kentucky, accuse W. S. Gabbart of tbe offense of unlawfully prescribing for, procuring for, selling and dispensing morphine to another person for purpose other than legitimate use, committed as follows, this; tbe said W. S. Gabbart on tbe - day of March, 1913; and within twelve months before tbe finding of this indictment in tbe county and Commonwealth aforesaid, being at tbe time a legally licensed physician, did unlawfully, prescribe for, procure for, sell and dispense to Will Harmon, morphine for a purpose other than for legitimate use. The said Harmon was not a wholesale druggist nor registered pharmacist not a legally licensed physician, nor a dentist, nor a veterinary surgeon, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the Commonwealth of Kentucky.”
“Any registered pharmacist, licensed physician, dentist or veterinary surgeon, who shall prescribe for, procure for or sell, or dispense to any person, opium or its alkaloidal salts or their derivatives, or any admixture containing opium or its alkaloidal salts or their derivatives, or otherwise deal in the same for any purpose other than for the legitimate use as herein provided, shall thereby render himself amenable to the penalties as in this section provided;” the penalty being a fine of not less than twenty nor more than one hundred dollars.
The circuit court sustained a demurrer to the indictment upon the ground that the facts therein alleged failed to charge an offense under the statute. This conclusion of the court below was based upon the theory that as the indictment failed to charge that the morphine prescribed for and sold the purchaser by appellant was an alkaloid or derivative of opium or an admixture containing opium, and the court could not judicially know or say that such was its character, this omission rendered the indictment fatally defective.
Naturally, this suggests the inquiry: Of what facts may a court take judicial notice? "We know of no better rule for determining what facts are to be regarded as within the knowledge of the court than that stated in Newman’s Pleading and Practice (New Edition), section 210.
“The Code (section 119) has expressly declared that matters of which the court will take judicial notice need not be stated in a pleading. This is but an old rule of pleading under the former system. Chitty says that there are some facts of such a public or general nature that the courts ex officio take notice of them, and which consequently ought not to be unnecessarily stated in the pleading. The judicial notice here referred to not only embraces the general laws or principles of jurisprudence, which of course need not be stated or argued in a pleading, but also includes facts of public notoriety. It will frequently be difficult to distinguish those things the notoriety of which will justify the court in knowing them
In 16 Cyc., pages 825-826, the rule is thus stated:
“Courts may properly take judicial notice of facts that may be regarded as forming part of the common knowledge of every person of ordinary intelligence and. understanding, but not facts merely because they may be ascertained by reference to dictionaries, encyclopedias or other publications; nor of facts which the court cannot know without resorting to expert testimony or other proof. ’ ’
In 4 Words and Phrases, page 3858, the same rule is stated in the following language:
“The matters of which judicial notice may be taken are those which must have happened according to the constant and invariable course of nature, or are of such general or public notoriety that every one may be fairly presumed to be acquainted with them.”
While morphine is not named in the statute as an alkaloid, derivative or admixture of opium, we do not suppose there is a person of ordinary intelligence or common understanding residing in the State but has familiar knowledge of its power as a narcotic, its deadly effect as a poison, and that it is an alkaloid or derivative of opium. The word morphine has as well defined a meaning as the word whiskey and it’s qualities and effect are as well known to the generality of the people of the State as are those of the intoxicant known as whiskey; and manifestly it would be a work of supererogation to allege in an indictment charging one with the unlawful sale of whiskey that it is a spirituous liquor or intoxicant. In Pedigo v. Commonwealth, 24 R., 1029, we said in overruling a petition for re-hearing:
“By section 130 of the Code, facts of which judicial notice is taken need not be alleged. It is unnecessary
By section 137, Criminal Code, it is declared that:
‘ ‘ The words used in an indictment must be construed according to their usual acceptation in common language, except words and phrases defined by law, which are to be construed according to their legal meaning.” Section 460, Kentucky Statutes.
In view of what has been said it is hardly necessary to add that, in our opinion, the validity of the indictment is not affected by its failure to state that the morphine sold by appellee under the circumstances therein alleged was an alkaloid or derivative of opium.
It is further insisted for appellee that the failure of the statute to define the words “legitimate ase” renders it void for uncertainty. In other words, it is argued that the statute fixes no standard by which the physician or druggist in selling or dispensing opium, its alkaloidal salts or derivatives, is enabled to know what use of it by the purchaser would or would not be legitimate; and that the indictment in simply charging in the language of the statute that the sale made by appellee was for other than a legitimate use of the drug, fails to state an offense under the statute.
Authority may be found, even among the decisions of this court, that apparently sustains this contention, but none of them rests upon the precise state of case here presented; and in the recent case of Katzman v. Commonwealth, 140 Ky., 124, we had under consideration the validity of section 2630, Kentucky Statutes, which regulates the sale of certain poisons by retail,, and declares in substance that a sale or delivery of such poisons shall not be made by any person without satisfying himself that the poison is to be used for legitimate purposes, without defining the words “retad” and “legitimate purposes.” A prosecution instituted by warrant against Katzman for violating this statute resulted in his convic
“In the argument in support of the objection mentioned it is said that the legislature should have defined the meaning of the words ‘retail’ and ‘legitimate purposes,’ so that a druggist might know what quantity would constitute a sale by retail and what would or would not be considered a sale for legitimate purposes; and so, that there could not be two opinions as to what these words mean when different courts or juries came to pass upon questions involving a violation of the statute. It may be admitted that although the meaning of the words ‘retail’ and ‘legitimate purposes,’ as used in the statute are reasonably well understood, it is nevertheless possible that there might be difference of opinion as to whether in a given state of case the sale of a drug was by retail or for a legitimate purpose, and it is possible that in administering this statute it may occasionally happen that a druggist will be accused who claims not to know what constitutes a sale by retail or what is a legitimate use of opium; and it is also possible that different trial courts and juries may not always be harmonious in the conclusions reached upon this point. But the fact that there may be occasional doubt or want of agreement on this question cannot be allowed to invalidate the statute. If this rule obtained, many penal statutes that have stood unquestioned for years and have been often enforced would be held invalid. There are numerous statutes in existence creating and' describing offenses the enforcement of which often brings into prominent notice a question concerning the meaning of words in the law about which different persons might reach a different conclusion. In the trial of many criminal cases there are of necessity submitted to the jury issues involving the meaning of certain words upon which depend the guilt or innocence of the accused; and with the court or jury, as the case may be, is left the decision whether or not the law under which the prosecution is pending has been violated. It would of course be extremely desirable if every penal statute could be made so plain as not to leave any doubt as to its meaning, and so intelligible as that
The opinion then proceeds to state that a person who has intelligence enough to conduct a drug store could not fail to know what would constitute the selling of a drug, by retail or to understand the meaning of the words legitimate purposes as used in the statute; that the druggist must, as declared by the statute, first satisfy himself that the sale of the drug or poison is for a legitimate purpose, and that if he, in fact, does not know the purpose for which the poison is to be used, or has any doubt about it, then he must in good faith exercise reasonable care to find out the purpose for which the drug or poison is bought. It is further said in the opinion:
‘£ The statute was intended to regulate sales by druggists, and when it is sought to apply the words ‘legitimate purposes’ to a sale of drugs or poison by druggists, they have a technical meaning that may not be clearly known or understood by courts or jurors, and so it is permissible to allow experts to give evidence as to what is regarded by qualified druggists and physicians legitimate purposes for which sales may be made so that the trial court
The reasoning contained in the opinion in the case, supra, applies with equal force to the statute here involved and must control in the construction to be given the words ‘ ‘ legitimate use ’ ’ found therein. The failure of the statute to define these words does not make it void for uncertainty. The word legitimate in the statute is not used in its original sense of lawful, but in its secondary sense of proper or warranted, as when we speak of a legitimate conclusion or a legitimate argument. Morphine is sold for legitimate purposes under the statute, when under the facts, a druggist or doctor, acting according to the ordinary usage of the profession and exercising ordinary care, would have made the sale. This is a question for the jury and should be so submitted to them by the instruction of the court. If, upon a trial of the case, the appellee should make the defense that the sale of morphine with which he is charged in the indictment was made for a legitimate use, it will be competent for him to show by evidence of physicians or druggists that the use for which he sold the morphine to the purchaser is a legitimate use. On the other hand, the Commonwealth may also introduce evidence to show that the use was not a legitimate one; and following the introduction of the evidence the court should instruct the jury upon the issue of fact thereby presented in such manner as will enable them to determine whether or not the sale made by appellee was for a legitimate use as contemplated by the statute.