Berlin v. State

Powers, J., delivered the opinion of the Court. Love of money was the root of the evil which resulted in a jury verdict in the Circuit Court for Montgomery County that Alvin Berlin, a registered pharmacist who owns and operates the Olney Drug Store, was guilty on all three counts of an indictment returned against him in October, 1969. He was sentenced by Judge Plummer M. Shearin to a fine and imprisonment on each count. The imprisonment was suspended.

The indictment charged that appellant on July 24, 1969 unlawfully: 1. Sold a narcotic drug, Robitussin, which contained codeine, in violation of Art. 27, § 277. 2. Failed to keep a proper record of the sale, in violation of Art. 27, § 287. 3. Maintained as a common nuisance a store for the purpose of unlawfully selling a narcotic drug, in violation of Art. 27, § 291. 1 Trooper Joseph Lawrence, Maryland State Police, testified that he was assigned to the Vice-Narcotic Unit, and had been doing undercover investigations into narcotics ⁵¹ violations for about two years.

On July 24, 1969, he participated in a conversation in the office of Montgomery County Police with one Emerson Smith and with other police officers, at which a plan was formulated. From there he and Smith went in an “undercover vehicle” to the Olney Drug Store. They went in, and engaged in a conversation with Berlin, who stated to Smith, “You owe me some money from the last time”. Lawrence asked how much Smith owed, then paid Berlin $5.00 for Smith, and stated they would like to get some Robitussin A. C. They agreed on a gallon, for which a price of $128.00 was quoted, and were told to return just before closing time.

Lawrence asked for something to tide him over, and Berlin gave him ten green tablets. Lawrence, with Smith, returned to the store about 11:00 P.M. He asked appellant if the stuff was ready and was told yes, but to wait for a few minutes. Appellant checked out the fountain register, and talked to a few people in the store until all had left except one woman Lawrence thought might be Mrs. Berlin. Appellant then came from the rear with a brown unlabeled one-gallon jug, and put it on the floor behind the counter.

Lawrence paid appellant $128.00, and then proposed that they do some business together in amphetamines. Appellant told Lawrence to call him on a Wednesday, because he would be working by himself. Lawrence then identified the gallon jug and the envelope of pills and stated that he had taken them to a chemist in the U. S. Customs Lab. in Baltimore. Further testimony by Trooper Lawrence described the events of August 27, 1969, when he and other officers went to the Olney Drug Store with a search warrant, and warrants for the arrest of appellant.

A record kept at the store, referred to as the Exempt Narcotics Book, was seized at that time and offered in evidence at the trial. The search warrant had been offered, and ruled invalid. The book was admitted as having been seized incident to a lawful arrest. It showed that the sale of Robitussin A. C. to Lawrence had not been entered, as required.

The ⁵² second count of the indictment was based upon failure to record this sale. A chemist testified that the liquid in the gallon jug was cough syrup containing codeine, but that he did not determine the proportions. He said that Robitussin (plain) does not contain codeine but that Robitussin A. C. does. From other analyses he thought it was two milligrams per cc.

Appellant later testified that Robitussin A. C. has in it one grain of codeine per ounce. The chemist also analyzed the pills and said they were amphetamines. Appellant testified that he gave Lawrence the 10 pills in good faith, and thought he was doing him a service, and they couldn’t hurt him. When he sold the Robitussin he thought it was in good faith.

He said, “I have been a druggist for twenty years and this is the only person that ever got to me, trapped me or something, the only person, the only time.” Appellant further said that when he sold the jug of Robitussin the Trooper didn’t say why he wanted it; appellant didn’t know whether it was for himself or for some other reason, had no idea what he was going to do with it, and couldn’t say whether there was any indication he was going to re-sell it. He also said, after an objection was overruled, that he had sold amphetamines to Lawrence in July, after the first sale, and in August, for a hundred dollars, a quantity that could have been 1,000 tablets. When he gave the 10 pills on July 24th, Lawrence had no prescription, although one was required. Thomas J. Kelly, a drug inspector for the State, testified that the Federal Government requires a record in the Exempt Narcotics Book of a sale of Robitussin, which is in Class X. The Code of Federal Regulations, to the same effect, was admitted in evidence.

When the evidence was completed, appellant moved to strike the Exempt Narcotics Book from evidence on the ground that its seizure was unlawful. This motion was denied. Appellant then moved for judgment of acquittal, which was denied. Neither side requested advisory instructions, and the judge gave none. ⁵³ During argument the State’s Attorney apparently made some reference to Emerson Smith, who was mentioned in the testimony of Trooper Lawrence and of appellant, but who did not testify.

Appellant objected and moved for a mistrial because of improper remarks. The motion was denied. Appellant’s brief lists nine questions presented. The State argues as to the nine questions, treating them in substantially the same form.

We recast them in this form: A. Did the court err in denying the motion for judgment of acquittal 1. As to Count I, because a. Code § 277 does not apply to pharmacists in the regular course of their legitimate professional activities; and b. Code § 286 exempts from the subtitle (including § 277) selling at retail any medicinal preparation that contains in one fluid ounce not more than one grain of codeine; and c.

The penalty in § 300 (a) imposed upon any person who violates § 277 with regard to any narcotic drug specified in § 276 does not apply because codeine is not specified in § 276; and d. There was no evidence that the product sold by appellant was Robitussin A. C. as alleged. 2. As to Count II, because a. No record of the sale was required to be kept because there was no evidence that the product sold was Robitussin A. C.; and b.

It was error to admit the Exempt Narcotics Book in evidence because it was unlawfully seized. ⁵⁴ 3. As to Count III, because a. Code § 291, making it unlawful to maintain any store which is used for the illegal selling of narcotic drugs, could not apply to this drug store, which was licensed and authorized to sell drugs; and b. The statute contains no definition of common nuisance, and the common law definition involves continuing acts, while the evidence showed only one sale in this casa 4.

As to all Counts, because a. The State manufactured the crime, if there was one, and appellant was trapped into making the sale; and b. There was no evidence that appellant had a predilection to criminal conduct. B. Did the court err in permitting questions to appellant about transactions subsequent to the offense charged.

C. Did the court err in denying appellant’s motion for a mistrial when the State’s Attorney, in argument, referred to statements by Emerson Smith, who did not testify. We conclude that the motion for judgment of acquittal was properly denied as to Count I and as to Count II, but should have been granted as to Count III. We also conclude that the trial court did not err in the other rulings. Appellant’s Claim of Exemption A. 1. a. and b.

Code § 277, prohibiting the sale of any narcotic drug, except as authorized, by its terms provides that it “shall not apply to pharmacists, physicians, dentists and veterinarians in the regular course of their legitimate professional activities”. Code § 286 provides that the subtitle shall not apply to selling at retail any medicinal preparation that contains in one fluid ounce not more than one grain of codeine, but further provides that the ex ⁵⁵ emption is subject to the condition that the preparation be sold in good faith as a medicine. Code § 298 provides that the burden of proof of any exception or exemption (under the subtitle) shall be upon the defendant, Reid v. State, 10 Md. App. 6 , 267 A. 2d 332 . With respect to the sale proved here, we think that sale in the regular course of legitimate professional activity, and sale in good faith as a medicine are the same thing.

The jury was entitled to consider the quantity sold and the price charged; the time of day the sale was arranged and the time carried out; that the sale was not entered in the Exempt Narcotics Book, although it was required to be; that the purchaser of the cough syrup at the same meeting proposed they work together on the sale of pills, and appellant suggested a call on a day when he would be alone; that appellant gave the purchaser 10 amphetamine pills at the same time, “to tide him over”, without a prescription although one was required; that over the following month or so appellant made some sales of such pills to the same individual in quantities that may have been 1,000; that no explanation was made of the purpose in buying a gallon of cough syrup, and appellant asked for none. The evidence touching on the question of legitimate professional activity and good faith in the sale required resolution by the jury, Coolahan v. State, 10 Md. App. 365 , 270 A. 2d 669 . The asserted exemptions did not call for a judgment of acquittal. Codeine as a Narcotic Drug A. 1. c.

It is specious to contend that codeine is not specified in § 276 as a narcotic drug. § 276 (o) says: “(o) ‘Narcotic drugs’ means coca leaves, opium, cannabis, and every other substance neither chemically nor physically distinguishable from them * * Subsection (m) provides: “(m) ‘Opium’ includes morphine, codeine and heroin * * ⁵⁶ The Product Sold was Robitussin with Codeine A. 1. d. and A. 2. a. The evidence showed that Trooper Lawrence asked for Robitussin A. C. at the time of his first