State v. Lewis

332 So. 2d 223, 1976 La. LEXIS 4637
Supreme Court of Louisiana·Decided May 17, 1976·No. No. 57336·Published·Cited by 2 cases

Opinion

CALOGERO, Justice.

Defendant was charged with the knowing and intentional distribution, on October 24, 1973, of a controlled dangerous substance, namely, phenmetrazine, a drug the bill of information suggests is commonly known as Preludin, in violation of La.R.S. 40:968(A). The recipient was one A1 Burns, a Baton Rouge City Police Officer. Defendant was tried and found guilty as charged by a twelve member jury. He was sentenced to serve three years at hard labor.

On October 12, 1973, twelve days prior to the incident giving rise to the charge, Officer Albert Burns went to the residence of Wilbert Marcel for the purpose of pur[225]*225chasing a controlled dangerous substance. He informed Marcel that he wanted some Preludin. Marcel then asked defendant, who was present, to get a container of pills. Officer Burns testified that defendant handed him the pills, but defendant contended that he handed the pills to his uncle, who had been ill. Officer Burns said he then gave some money to Marcel; defendant testified that he did not see an exchange of money.

On October 24, 1973, Officer Burns returned to the residence of Wilbert Marcel. Officer Burns testified that he went to purchase drugs from anyone present on the premises; that only defendant Charles E. Lewis was there; and that Lewis was carrying a shotgun and pointing it at Officer Burns. Burns testified that he asked for five Preludin pills, that Lewis gave them to him, and that he gave Lewis twenty dollars. Burns then went back to his car where Earl Wright, an investigator with the District Attorney’s office was waiting and Burns showed Wright the pills. This was confirmed by Wright.

Defendant took the stand in his own defense and testified that on October 24, 1973, when Officer Burns returned to the apartment of his uncle, Wilbert Marcel, Officer Burns asked where his uncle was, and when told he was not in, left without asking for or being given any pills. He stated that he was holding a carbine rifle, in contrast to a shotgun, when Officer Burns came to the door, but that he did not point it at Burns and that he put it on the dresser while he was talking to Burns.

Defense counsel perfected five assignments of error but briefs and argues only three before this Court.

ASSIGNMENT OF ERROR NO. 1.

By assignment of error number one, defendant argues that it was error for the trial court to allow evidence to go to the jury concerning the distribution of “prelu-din” since “preludin” is not a controlled dangerous substance classified as such by La.R.S. 40:964. The bill of information charging defendant stated that “he knowingly and intentionally distributed a controlled dangerous substance, to wit: Phen-metrazine (commonly known as Preludin) to one A1 Burns, a Baton Rouge Police Officer” (emphasis added).

La.R.S. 40:968(A) provides as follows:

“§ 968. Prohibited acts — Schedule III; penalties
A. Manufacture'; distribution. Except as authorized by this part, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance classified in Schedule III;

La.R.S. 40:964 provides in pertinent part as follows:

“SCHEDULE III
A. Stimulants. Unless specifically excepted or unless listed in another Schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system:
(1) Phenmetrazine and its salts

At trial, Ms. Marta Finolit, a chemist with the Louisiana Police Crime Laboratory, was qualified as an expert and testified that the pills allegedly taken from defendant by Officer Burns were phenmetrazine. She further testified that phenmetrazine is the chemical name for Preludin, or conversely, that Preludin is a trade name and phenmetrazine is a chemical name for the same thing.

[226]*226From the outset of trial, defense counsel objected to the admissibility of any evidence having to do with the identification of Preludin on the grounds that the statute does not proscribe the distribution of such a drug. He argues that a statute must give a person of ordinary intelligence fair notice of what conduct is criminal, and points out in conjunction with this argument that guilty knowledge on the part of the accused is an essential element in controlled dangerous substances cases. The thrust of this contention is that the statute is vague and indefinite.

It is true as pointed out by counsel that both defendant and Officer Burns referred to Preludin in their testimony, and in response to questions, asserted or admitted that they were not familiar with the term phenmetrazine. However, it was shown as an evidentiary matter that Preludin is a trade name and a common name for a pill or capsule which is a form of phenmetra-zine.

The question thus presented is whether a statute is vague and indefinite which identifies a controlled dangerous substance by its chemical name alone, and without reference to its trade, brand or “street” name or names as well.

We conclude that the statute is not vague and indefinite, as a constitutional proposition, or otherwise. If anything, it is overly precise and specific.

Defendant’s actual complaint is more properly the subject of the defense that he did not knowingly and intentionally distribute a controlled dangerous substance, a defense which was duly presented to, but not accepted by the trial jury, and which is presented to this Court in connection with a motion for directed verdict by Assignment of Error number four.

ASSIGNMENT OF ERROR NO. 4.

By this assignment, defendant argues that the trial court erred in denying his motion for directed verdict since there was no evidence to establish defendant’s knowing and intentional distribution of a controlled dangerous substance. Defendant’s argument is that “guilty knowledge” is an essential element of the crime of distributing a controlled dangerous substance, that the state failed to present any evidence tending to prove that defendant knew he was distributing a controlled dangerous substance and that, therefore, the trial court should have directed a verdict for defendant.

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State v. Lewis, 332 So. 2d 223, 1976 La. LEXIS 4637 (La. 1976).

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