Dеfendant was convicted of unlawfully distributing and transferring amphetamine hydrochloride, a stimulant drug, and the jury assessed his punishment at a fine of five hundred dollars. We have jurisdiction of his appeal because the construction of the Constitutions of the United States and of the State of Missouri is involved. Section 3, Article V, Missouri Constitution, V.A.M.S. After the adoрtion by Division One of this court of an opinion affirming the conviction, the case was transferred, on request, to the court en banc by reason of the fact that there had been a dissenting opinion to the divisional opinion.
The indictment under which defendant was tried was as follows: “ * * * That WILLIAM CULLEN BRIDGES, M.D., *3 physician and surgeon, on the 12th day of May (1962), * ⅜ * did unlawfully, designedly, and wilfully distribute and transfer one ounce of amphetamine hydrochloride, to-wit: by selling a prescription for one ounce of amphetamine hydrochloride to PEARL WALLACE, also known as RAE WALKER, which was not for medicinal purposes, for Seven Dollars, which was not in the usual course of business or practice, contrary to Section 195.240, Missоuri Revised Statutes, * *
Pertinent sections and parts of sections of Chapter 195 (all references are to RSMo 1959, V.A.M.S., unless otherwise indicated) relevant to the charge against defendant are as follows:
“195.220. Definitions. — As used in sections 195.220 to 195.270, the following terms mean:
* £ * ⅛ * *
(2) ‘Stimulant’, amphetamine or any of its derivatives which have an exciting effeсt on the central nervous system of a human or animal.
“195.230. Division of health to file list of drugs. — The division of health of the department of health and welfare shall prepare a list of all drugs falling within the purview of the terms barbiturate or stimulant. Upon preparation, a copy of the list shall be filed in the office of the secretary of state.
“195.240. Possession or distribution of barbiturates or stimulants regulated. — The possession, sale, distribution, or transfer of any drug which is designated by the division of health to be a barbiturate or stimulant is unlawful, except in the usual course of business or practice, or in the performance of their official duties by the following persons:
(1) Persons licensed undеr the provisions of chapters * * * 334, * * *, RSMo.”
Chapter 334 provides for the licensing of physicians and surgeons.
On August 31, 1959, the Division of Health, in accordance with § 195.230, filed in the office of the Secretary of State a list of stimulants which was as follows:
“LIST OF STIMULANTS AMPHETAMINES
Definition of Amphetamine:
Any stimulant drug consisting of phenyliso-propylamine and all derivatives thereof, except preparations intended for use in the nose and which cannot be rendered fit for internal use shall be considered a part of this list.
Chemical Classification Generic Name
dl-l-phenyl-2-amino-propane sulfate Amphetamine Sulfate USP
d-l-phenyl-2-amino-p ropane sul fate Dextro-amphetamine Sulfate USP
trimethylphenethylamine Mephentermine USP
desoxyephedrine hydrochloride; d-l-phenyl-2-methyl-amino-propane hydrochloride Methamphetamine Hydrochloride USP
l-phenyl-2-nicotinyl-amino-propane Nicotinyl-amphetamine”
*4 The evidence on behalf of the state would justify the following statement of facts: Defendant is a physician and surgeon in the City of St. Louis. On the evening of May 12, 1962, Pearl Wallace went to defendant’s office to obtain a prescription for amphetamine hydrochloride. She had taken drugs for many years and had used amphetamine for five years. She would dissolve it in water and inject it into her veins with a hypodermic needle. At the time in question she was not under medication, treatment or care of a doctor for anything. She did not discuss her weight with the defendant or seek relief from him to enable her to lose weight. She simply went to his office and asked for a prescription. Defendant wrote out a prescription for two ounces of amphetamine hydrochloride and delivered it to Pearl Wallace, for which she paid him the sum of seven dollars. She then took the prescription to a drugstore, where she had it filled. The pharmacist who filled the prescription testified that he did fill the prescriрtion for Pearl Wallace, and he identified amphetamine hydrochloride as a derivative of amphetamine. He testified that the principal difference between it and amphetamine sulphate, another derivative of amphetamine, was that the hydrochloride was more soluble than the sulphate. Other witnessеs testified that in the months preceding May 12, 1962, they had gone to defendant’s office and purchased prescriptions for amphetamine hydrochloride.
Defendant first attacks on constitutional grounds the statute under which the indictment against defendant was returned. These constitutional questions can be divided into three subdivisions.
First, defendant сontends that the portion of § 195.240 which reads: “ * * * except in the usual course of business or practice, or in the performance of their official duties by * * * [physicians]” is too vague, uncertain, ambiguous and indefinite to provide an ascertainable standard of guilt. This, says defendant, causes difficulty in determining just what is prohibited and prevents one charged from having an adequate opportunity to prepare a defense, thereby depriving him of due process. Cases such as Diemer v. Weiss,
Second, defendant alleges denial of due process in that the statute made no provision requiring the Division of Health to give any kind of notice, actual or constructive, of the filing of a list of drugs designated by thаt agency pursuant to the statute. This contention also is without merit. Section 195.220 defines “stimulant” and by § 195.230 the Division of Health is directed to prepare a list of all drugs falling within the said definition, and to file such list in the office of the Secretary of State. Thus, by § 195.220 defendant *5 is put on notice of and given a clear standard of what drugs (barbiturates and stimulants as dеfined) are involved in the enactment, and by § 195.230 he is directed to where he can find a list of all the proscribed drugs. It is a rule deep within our law that ignorance of the law is no excuse, and under this maxim defendant is presumed to know the law. That law told the defendant what drugs were proscribed and where a list could be found. This was sufficient.
Third, defendаnt claims that the statutes here involved are unconstitutional under Section 1 of Article II of the Constitution of Missouri, V.A.M.S., in that they unlawfully delegate legislative authority to the Division of Health to designate drugs covered by the act, with no standard, rule or reasonable guide set out in the statutes for the Division of Health to follow. Cases cited include Lux v. Milwaukee Mechanics’ Ins. Co.,
Defendant’s attack on the indictment is two-fоld, as follows:
First, it charges no offense because it charges merely the distribution and transfer of a prescription for amphetamine hydrochloride, whereas the statute prohibits the sale, distribution or transfer of the proscribed drug itself. Defendant’s contention overlooks the fact that the indictment does charge the distribution аnd transfer of the drug amphetamine hydrochloride. It charges that this was accomplished by selling a prescription therefor to Pearl Wallace. The indictment in question charges: (1) that appellant was a physician; (2) that on May 12, 1962, he unlawfully distributed and transferred one ounce of amphetamine hydrochloride; (3) by selling a prescription for amphetamine hydrochloride; (4) to Pearl Wallace; (5) which was not for medicinal purposes; (6) for Seven Dollars;
(7)
which was not in the usual course of business or practice; (8) contrary to Section 195.240, Revised Statutes of Missouri. The indictment substantially follows the language of the statute and is sufficient. State v. Crawford, Mo.,
Second, defendant contends the indictment is fatally defective because it alleges a transfer of amphetamine hydrochloride, a drug not listed on the list of drugs filed by the Division of Health with the Secretary of State pursuant to § 195.230, and hence charges no offense under the statute.
Defendant, by the indictment, was charged with a violation of § 195.240. The indictment specifically so states. That section of the statute proscribes the possession, sale, distribution, or transfer of certain drugs unless one of the exceptions providеd in the statute is applicable. What drugs are proscribed by § 195.240? They are barbiturates or stimulants “designated by the division of health to be a barbiturate or stimulant” within the definition set out in § 195.220. How does the Division of Health so designate a drug? By preparing a list thereof which is then filed in the office of the Secretary of State. This has been done by the Divisiоn of Health and a printed .copy of the list as filed was offered in evidence by the State as Exhibit 2. Amphetamine hydrochloride was not included on that list. It thus would appear that the indictment may not in fact charge defendant with the transfer of a drug “designated by the division of health to be a * * * stimulant.” If it does not, it charges no offense under § 195.240.
Thе State contends that the indictment does charge an offense, saying that amphetamine hydrochloride is not a derivative of amphetamine at all, but instead merely contains amphetamine in compound with hydrochloride to make it soluble. Accordingly, says the State, the indictment does charge the distribution and transfer of amphetamine itself and is sufficient since amphetamine is listed both in § 195.220 and in the list filed by the Division of Health. There was no proof offered by the State in this case to support such contention. As a matter of fact, the druggist who filled the prescription and was a witness for the State testified that amphetamine hydrochloride is a derivative of amphetamine. However, this is a fact question and the conviction should be reversed and the case remanded to give the State the opportunity to prove, if it can, that the compound in question is not a derivative of amphetamine but rather a compound or mixture containing the proscribed drug amphetаmine itself. State v. Patton, Mo.,
It is noted that the list of stimulants filed in the office of the Secretary of State
*7
by the Division of Health contains a definition of amphetamine. That definition, as heretofore set out, says that amphetamine includes “any stimulant drug consisting of phenylisopropylamine and all derivatives thereof * * Actually, this definition attempts by general formula to include on the list everything (except certain preparations for the nose) consisting of phenylisopropylamine or its derivatives. That is not what the legislature intended. The statute enjoined upon the Division of Health the duty to prepare a
list
of all proscribed drugs, not a general formula or guideline. A definition already has been provided by the legislature in § 195.220. If the formula contained in the definition on the list in the office of the Secretary of State is a mere restatement or duplication of the definition in § 195.220, it adds nothing and to that extent is not a compliance with the statutory duty to prepare and file a list of drugs. If it differs from the definition in § 195.220, it goes beyond what the Division of Health was authorized to do. For a drug which is in fact a derivative of amphetamine to be the basis of a prosecution under § 195.240, it must be listed by the Division of Health on the list which it files in the office of the Secretary of State. This statute applies nоt only to persons with technical knowledge such as physicians, pharmacists and chemists, but to everyone. Such persons should be able to refer to the list provided for in the statute to determine whether he possesses or is dealing with a proscribed drug. It should make it clear, definite and certain to the average man so that he, with due eare, after reading same, will understand whether he is dealing with respect to a proscribed drug. Diemer v. Weiss,
If this case is retried by the State, Instruction No. 1 should be redrafted to include a finding by the jury that the prescription sold by defendant to Pearl Wallace actually was filled and the drug thereby obtained by her. There was evidence that it was, but this fact was not admitted by defendant and Instruction No. 1 did not require such a finding. This element is the very essence of the crime charged and the main instruction should have required the jury to find that essential fact. State v. Griggs, Mo.,
The judgment of conviction is reversed and the case is remanded.