sitting in place of MR,. JUSTICE GALEN, disqualified, delivered the opinion of the court.
Charles Finley was charged with a violation of the law relating to the sale of drugs. Trial was had resulting in his conviction, and this appeal is from the judgment and from an order denying his motion for a new trial. The appeal is based upon ten specifications of error. These may be grouped under three heads, as follows: (1) That the evidence is insufficient to sustain the judgment; (2) that the court erred in refusing to give defendant’s offered instruction No. 3a; (3) that the exclusion of certain testimony was error.
1. Defendant is charged with the violation of the provisions of section 3189, Revised Codes of 1921, which provides: “It *46 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, and pursuant to all the requirements of this Act; provided, that nothing in this Act shall be construed as preventing a dentist or veterinary surgeon, duly licensed to practice in Montana, from obtaining, on federal government permits, for use in his practice, the drugs or narcotics mentioned in this section. ’ ’
The information charges: “That at the county of Silver Bow, state of Montana, on or about the 3d day of April, A. D. 1924, and before the filing of this information,' the said defendant did willfully, unlawfully, 'knowingly, wrongfully and intentionally sell, barter, distribute and dispose of at retail and to a consumer, to wit, to one J. Gr. Muller, a human being, a certain derivative, compound, manufacture and salt of opium, known as morphine, the exact amount of which said morphine is unknown to the county attorney at this time, and that said morphine was not then and there sold, bartered, distributed or disposed of upon the original written prescription of a duly licensed physician, duly licensed to practice medicine in the state of Montana, nor upon any prescription whatever. ’ ’
The only point urged by counsel in this connection is that the negative averments contained in the information are necessary and material; further, that it was necessary for the state to prove these negative averments, and that since the state offered no proof thereof, the evidence introduced is not sufficient to sustain the judgment. This contention cannot be sustained. Section 3189,
supra,
is taken from section 1 of Chapter 202, Session Laws of 1921. This is “An Act to regulate the production, manufacture, sale, barter, exchange, distribution, dealing in, giving away, dispensing, or the disposing
*47
in any manner of opinm or eoea leaves, their salts, derivatives or preparations.” Section 3200, Revised Codes of 1921 (which is section 12 of Chapter 202, Session Laws,
supra),
declares that it shall be “unlawful for any person to have in his possession or under his control any of the drugs mentioned in this Act, if such possession or control is obtained in a manner contrary to the provisions of this Act; and such possession or control shall be presumptive evidence of a violation of this jAct; provided, that this section shall not apply,”
etc.
Then follow several exceptions to the provisions of the Act, and section 3200,
supra,
concludes with the following provision: “Provided, further, that it shall not be necessary to negative any of the aforesaid exemptions in any complaint, information, or indictment, or other writ or proceeding laid or brought
under this Act,
and the burden of proof of any such exemption shall be upon the defendant.” The negative averment contained in the information is unnecessary and therefore sur. plusage. It follows that proof thereof was not required.
(United States
v.
Loewenthal
(D. C.),
After sale of morphine had been proven by the state, then, if such sale was made upon a prescription as provided by the statute, it became a matter of defense.
(People
v.
Montgomery,
2. The court refused to give defendant’s requested instruc tion No. 3a, and we think properly so. The essential elements covered by the refused instruction are contained in *48 defendant’s offered instruction No. 2a, which was given by the court, and which is as follows: “You are instructed that in judging the credibility of a witness and the weight, if any, to be given to his testimony, you are entitled to take into consideration the fact, if you find from the evidence that it is a fact, that such person is a habitual user of drugs; and what, if any, effect such drugs have on his powers of recollection and perception and on his mental and moral sensibilities.”
3. Error is predicated upon the ruling of the court in sustaining objections to certain questions propounded to plaintiff’s witness Guerra on cross-examination, and also to the court’s action in sustaining objections to certain questions asked defendant’s Witness Dr. Donohue on direct examination. The information sought to be elicited by the questions asked the witness Guerra ivas either foreign to the issue involved or altogether immaterial thereto.
The witness Donohue was asked the question, “State, Doctor, if you know, what effect the use of the drug has upon the veracity of a user who uses five or six grains a day?” to which question objection was made and sustained. There was no offer of proof subsequent to the sustaining of the objection to the question. The question itself does not clearly indicate the answer expected to be given thereto. It follows that the evidence anticipated is not before the court, and therefore we cannot say whether or not its exclusion was error.
(State
v.
Toy,
The judgment and order appealed from are affirmed.
Affirmed.