Browning v. State

276 S.W.2d 522, 161 Tex. Crim. 273, 1954 Tex. Crim. App. LEXIS 2085

Opinions

BELCHER, Judge.

Appellant was convicted for the unlawful delivery of barbiturates upon each of three sepáraté offenses alleged in the complaint and information, and his punishment was assessed on each count at sixty days in jail and a fine of $1,000.

Appellant contends that the court erred in overruling his motion to quash the complaint and information upon the ground that they do not negative any of the exceptions set out in other portions of the statute whereby a legal delivery of barbiturates may be made.

Art. 726c, Vernon’s Ann. P.C., upon which this case is based, provides in Sec. 12 thereof as follows:

“Sec. 12. In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provisions of this Act, it shall not be necessary to negative any exception, excuse, proviso, or exemption contained in this Act, and the burden of proof of any such exception, excuse, proviso, or exemption shall be upon the defendant.”

In view of this provision in said statute, there was no necessity for negativing the exceptions.

The testimony of M. A. Billnitzer, a detective for the city of Houston, shows that he visited appellant in Houston on three different dates and each time told appellant that he needed something to make him sleep; that the appellant delivered to him on the first occasion 24 capsules, on the second occasion 26 capsules, and on the third occasion 24 capsules; that he (Billnitzer) delivered the capsules received on these visits in separate packages to Floyd E. McDonald, chemist for the city of Houston Police Department.

Floyd E. McDonald, chemist, identified the capsules delivered to him by M. A. Billnitzer and testified that they contained a derivative of barbituric acid known as sodium pento-barbiturate.

There is no testimony in the record showing that the appellant is “a person licensed * * * to prescribe and administer barbiturates.”

We find the evidence sufficient to sustain the conviction.

The judgment is affirmed.

Opinion approved by the Court.