PEOPLE v. STUART

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District Court of Appeal, Second District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Stephen STUART, Defendant and Appellant.*

Cr. 5482.

Decided: March 30, 1956

John N. Frolich and William Levin, Los Angeles, for appellant. Edmund G. Brown, Atty. Gen., Edward M. Belasco, Deputy Atty. Gen., for respondent. Dean M. McCann, Upland, amicus curiae.

Stephen Stuart was informed against in two counts and convicted of two offenses, namely, manslaughter, in that he ‘did willfully, unlawfully, feloniously and without malice, kill Peter James Sills, a human being,’ and ‘being then and there an apothecary, druggist and person carrying on business as a dealer in drugs and medicines did, in making up a prescription, willfully, unlawfully, negligently and ignorantly substitute a different article for an article prescribed and ordered, put up a less quantity of an article than that prescribed and ordered and otherwise deviated from the terms of the prescription and order, in consequence of which human life and health was endangered resulting in death to Peter James Sills, a human being.’ Imposition of sentence was suspended and probation was granted. Stuart appeals from the judgment and from an order denying his motion for new trial. The case was tried upon the evidence adduced at the preliminary hearing and additional evidence introduced at the trial.

The facts essential to a determination of the question of Stuart's guilt were not in conflict and that question is to be resolved from the application to those facts of Sections 1921 and 3802 of the Penal Code and Sections 26280 and 26295 of the Health and Safety Code.3

Stuart was employed by the Ethical Drug Company in Los Angeles, owned in part by a Charles Covet. He obtained a B.S. in chemistry from Long Island University in Brooklyn, New York, and a B.S. in pharmacy from Columbia University of Pharmacy in New York. He came to California in September 1945, was licensed as a pharmacist in 1946 and had been employed since that time. He started employment with Ethical Drug Company in April 1954. Covet was operating the store and had been since April 1950. On or about July 17, 1954, Irvin Sills presented to Stuart a prescription written by Dr. Goldstein intended for use as a sedative for the Sills' eight day old child. It called for sodium phenobarbital, grains eight, sodium citrate, drams three, simple syrup, ounces two, aqua pepppermint, ounces one, aqua distillate QS, ounces four. There being no bottle at hand containing simple syrup, Stuart mixed the other ingredients with syrup of orange, a flavoring syrup, but found they would not mix satisfactorily into a clear liquid and threw it away. He called Dr. Goldstein, believing that no simple syrup was avaiable; Dr. Goldstein advised him he might use elixir of mesopin-pb if he was unable to fill the prescription as written. Upon inquiry of the clerk at the soda counter Stuart learned that simple syrup was avilable, mixed the prescription and gave it to Sills. The medicine was administered to the child and caused his death soon afterwards. Stuart had taken three drams from a bottle labeled sodium citrate, had thrown away the first mixture and again had taken three drams from the same bottle on the final filling of the prescription. There was another bottle on the shelf marked sodium nitrite which was poisonous although the citrate was not. After the child's death a four ounce sample was taken from the sodium citrate bottle, was analyzed by a chemist, who testified that he found in the sample 1.33 drams of sodium citrate and 1.23 drams of sodium nitrite. It was the sodium nitrite which caused the child's death. Stuart did not label the bottle as containing a poison. The evidence as to the appearance of the two substances was that both are composed of small sugarlike crystals; sodium citrate is white; sodium nitrite may be white or may have a slightly yellowise tinge. There was no evidence that the difference could be determined by observation or without chemical analysis. Upon the contrary there was evidence that the mass was not homogeneous and was incapable of visual identification as one thing or the other. Although some of the compound was exhibited to a witness at the trial and was observable by the court, there was no sample of either sodium citrate or sodium nitrite with which to make comparison. Stuart took another sample from the bottle to the Biochemist Laboratory where it was analyzed and found to have 38.9 milligrams of nitrite per gram of material. After learning of the child's death Covet emptied the sodium citrate bottle and refilled it with new sodium citrate. He washed the bottle, not too thoroughly, but did not wash the bottle cap. Later the cap of the bottle was examined and the analysis showed distinctly the presence of sodium nitrite. Covet had another pharmacist in his employ, one Axelrode, who had been with him since 1946. On August 11, Axelrode filled a prescription for one Moonjian which also called for sodium citrate. He took this from the same bottle from which Stuart had filled the Sills' prescription. The Moonjian child became ill but recovered. From April 1950 to July 1954, three prescriptions using sodium citrate had been filled in the drugstore. These totaled about 18 drams. There was no evidence that harm resulted from their use. In that time only one prescription calling for sodium nitrite had been filled.

With respect to the conviction of manslaughter, the People contend that the death of the child resulted from the commission of an unlawful act, not amounting to felony. It is this provision of section 192, Penal Code, which applies and not the provision of that section relating to ‘the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.’

Our first inquiry is whether upon the admitted facts Stuart was guilty of violation of section 26280 of the Health and Safety Code in that he sold an adulterated drug. We think there can be no doubt as to his guilt of violation of that section. The prescription called for the addition of pure sodium citrate; as filled there was substituted a mixture of sodium citrate and sodium nitrite. One definition of ‘adulterate’ is ‘to corrupt, debase, or make impure by an admixture of a foreign or a baser substance.’ This is precisely what took place in the filling of the prescription.

Section 26280 denounces as a penal offense the sale of an adulterated drug even though the seller be ignorant of the fact that it is adulterated and his ignorance is not due to any negligence upon his part. When a pharmacist fills a prescription he must know what he is putting into it. If in using substances from containers he relies upon the labels, he is bound to know whether they correspond with the contents of the bottles. If the labels are incorrect, and this leads to the use of a wrong ingredient, the fact that the mislabeling was not his own but the act of a third person is not a defense. His responsibility is absolute. Such are the facts of the present case. Stuart is the victim of the mistake of some unidentified person through whose error the two substances were mixed and placed in the bottle labeled sodium citrate.

The Legislature has seen fit to impose upon the dispenser of drugs this strict and unconditional responsibility. It was within the power of the Legislature to do so and the statute being valid it is the duty of the courts to enforce the statutory penalties prescribed for violations, however harsh they may be.

It is well-established that the Legislature has the power to denounce as a penal offense possession or sale of an adulterated or misbranded substance without requiring as an element of the offense knowledge of its adulteration or misbranding or negligence in failing to have such knowledge. People v. Schwartz, 28 Cal.App.2d Supp. 775, 70 P.2d 1017. The principle which is applicable in the present case was stated in People v. Beggs, 69 Cal.App.2d Supp. 819, 822, 160 P.2d 600, 601, as follows: ‘Neither knowledge nor an intent to defraud is made a condition of the statute, with the result that the act of selling misbranded goods constitutes the offense, though done, as it doubtless was in the case before us, both in happy ignorance of the fact that the legend on the sacks was incorrect and without any intention of defrauding anyone. This conclusion is supported by cases analogous to ours, decided in this state.’ Other cases to the same effect are People v. Pera, 36 Cal.App. 292, 171 P. 1091; In re Casperson, 69 Cal.App.2d 441, 159 P.2d 88, and see, also, Sandstrom v. California Horse Racing Board, 31 Cal.2d 401, 189 P.2d 17, 3 A.L.R.2d 90. There is equal, if not greater, justification for penalizing conduct which is neither intentional nor negligent in the sale of drugs.

Appellant says ‘Section 26280 was intended to apply only to manufactured drugs and devices sold by intrastate manufacturers or jobbers to the retailers. * * * Nowhere does it state that a pharmacist is one of the applicable class.’ While such may have been the primary purpose of the enactment of the section it cannot be interpreted as implying a limitation that would be contrary to its clear and comprehensive provisions.

Appellant also argues that the offense of manslaughter is not committed where death occurs in the commission of an act which is not malum in se but only malum prohibitum. He says that the existence of this rule was recognized in People v. Mitchell, 27 Cal.2d 678, 683, 166 P.2d 10, and he relies upon Thiede v. State, 106 Neb. 48, 182 N.W. 570, 15 A.L.R. 237, as a case which announces the rule. The opinion in that case is well-reasoned. The defendant had been convicted of manslaughter for furnishing homemade liquor to a number of his friends, including one who met death from acute alcoholism brought on by imbibing the defendant's fiery concoction. The conviction was reversed because of the court's instructions directing a finding of guilt if the death of the deceased was caused by drinking the liquor, and in failing to instruct upon the question of recklessness on the part of the defendant. After reviewing the authorities the court distinguished between unlawful acts which of themselves are not likely to result in injury to person and acts which are perilous to human safety. The element of recklessness which the court held was for the jury's consideration was the question whether the accused knew or should have known that harm was likely to result from drinking the liquor. We need not decide whether the crime of involuntary manslaughter encompasses the taking of human life in all cases where it occurs in the commission of an unlawful act. Undoubtedly it does include cases of death occurring in the commission of unlawful acts which from their very nature are threatening to human life or safety. People v. Mitchell, supra, 27 Cal.2d 678, 166 P.2d 10. That the furnishing of a poisonous or seriously deleterious drug falls within this category is self-evident. The hazard to human life in the mishandling of drugs is the very reason for holding the dispenser to strict accountability. Even from the viewpoint that the unlawful acts which are an element of involuntary manslaughter be those only that are threatening to or in disregard of human safety, that element is supplied, as a matter of law, in the present case where the proof established the unlawful furnishing of a poisonous drug. All questions of intent and negligent or reckless conduct were foreign to the issues. The death of the child resulted from the use of the drugs compounded and sold by appellant in violation of section 26280 of the Health and Safety Code and the conviction of manslaughter must therefore be affirmed.

Count I of the information charged involuntary manslaughter in the language of the statute but without specifying whether the death was in the commission of an unlawful act not amounting to a felony or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. Violation of section 380 of the Penal Code was charged as a felony in Count II of the information, in that death ensued. Violation of that section where death occurs is a felony, whereas violation of section 26280 of the Health and Safety Code is a misdemeanor. In reviewing the conviction of manslaughter it has not been necessary to consider the conviction under section 380. As to that conviction appellant contends that the evidence did not establish his guilt and also that he could not be convicted of violation of manslaughter and also violation of section 380 for the reason that the latter offense is necessarily included in the former.

We are of the opinion that the first contention must be sustained. Unlike section 26280 of the Health and Safety Code, section 380 applies only to acts which are done or omitted to be done ‘willfully, negligently, or ignorantly.’ Those modifying words relate to all the specified acts constituting violations of the section. In our opinion the evidence failed to establish that the acts of Stuart were in any respect done wilfully, negligently or ignorantly. The facts we have related satisfactorily establish that Stuart did not act wilfully or negligently. The People contend that he acted ignorantly, but the only theory they advance is that he was ignorant of the fact that the substance he used was not sodium citrate in a pure form. Appellant contends that the ignorance which is made an element of an offense under section 380 is lack of the technical knowledge that should be possessed by one who fills prescriptions or otherwise dispenses drugs or medicines. If this be the true meaning, Stuart, of course, did not act ‘ignorantly.’ Section 380 was enacted in 1872 as above quoted and it was not amended until by Statutes 1955, Chapter 596, § 1, the word ‘ignorantly’ was deleted and there was substituted in its place ‘without consideration of those facts which by the use of ordinary care and skill he should have known.’ The amendment was adopted after the offense was committed and is of interest only insofar as it may aid us in giving the original section proper application.

In considering the question whether original section 380 could properly be applied to the facts of the present case it is important to keep in mind that the primary purpose of all legislation designed for the regulation of the practice of the professions is the weeding out of incompetency by requiring of practitioners the possession of greater or less ability to do the things that constitute the practice of the profession. An indispensable requisite to this ability is knowledge of the subject.

In 1872 it was recognized in California that there was need for legislation regulating the dispensing of drugs. At that time any one could lawfully sell drugs. This condition was being met throughout the country by measures designed to confine the sale of drugs and medicines and the filling of prescriptions to persons of proven knowledge and competency. See Griffenhagen, The Story of California Pharmacy, 1950, and Kremers & Urdang History of Pharmacy, 1945.

By Statutes 1872, page 681, Chapter 454, a law was enacted for the regulation of the practice of pharmacy and the dispensing of medicines and poisons in the city and county of San Francisco. Certain qualifications of practitioners were established. Generally speaking the right to dispense drugs or to fill prescriptions was limited to ‘graduates,’ ‘licentiates' and ‘practicing pharmacists or assistant pharmacists.’ ‘Graduates' must have had four years experience ‘in stores where prescriptions of medical practitioners are compounded,’ and also a diploma from a college of pharmacy within the United States or from an authorized foreign institution or examining board; ‘licentiates' must have had the same store experience and been passed by the board of pharmacy. ‘Practicing pharmacists' and ‘assistant pharmacists' were persons who had kept and continued to keep ‘open store in the City and County of San Francisco for compounding and dispensing of the prescriptions of medical practitioners, and for the sale of medicines and poisons.’ Violation of the act in any part, including the practice of pharmacy by unregistered persons and the adulteration of any drug knowingly, intentionally and fraudulently was made a misdemeanor. The first school of pharmacy was established in 1873, Griffenhagen, The Story of California Pharmacy, p. 27. After the San Francisco act was repealed, but in substantially the same form, a statewide act was passed in 1891, Stats.1891, Ch. 85, p. 86. Other legislation followed until the adoption of Chapter 9, Division 2, Article 1, Business and Professions Code, which contains the present law.

It is altogether clear that in 1872 when the San Francisco act and section 380 of the Penal Code were adopted the Legislature had in mind that the dispensing of drugs and filling of prescriptions should be limited to those who had sufficient knowledge of the properties and uses of drugs to dispense them intelligently and in such a manner as not to imperil the health and safety of the users. The ignorance at which the San Francisco act and section 380 were directed was the lack of such knowledge. That this was the legislative purpose was made clear by the standards of knowledge and experience set up in the San Francisco act. While this enactment was designed to protect the public against ignorance in the handling of drugs in that locality, at the same time section 380 was enacted as a measure of protection from harm occasioned by the dispensing of drugs in the remainder of the state by persons who were ignorant of the subject of drugs and medicines and their proper uses. And we see from the 1955 amendment of section 380 which deleted the word ‘ignorantly’ that the statute still relates to the matter of technical knowledge, for in using the words ‘without consideration of those facts which by use of ordinary care and skill he should have known’, the statute is speaking of the registered pharmacist and asistant pharmacist and of what he should have known. Generally speaking, they are the only ones who may sell drugs or compound prescriptions. Bus. & Prof. Code, § 4030.

The original section 380 was aimed at errors by persons who are ignorant because of their lack of special education and training; the amended statute measures the conduct of the pharmacist by what he, with his educational qualifications, ‘should have known.’ The unregistered pharmacist of 1872 whose mistakes were due to his ignorance of the use of drugs was amenable to prosecution as a violator of the law just as the present practitioner is liable for mistakes due to his failure to make proper use of his higher degree of knowledge. Under the statute as originally enacted mistakes not due to ignorance of the subject were to be judged under the principles of wilfulness and negligence.

We conclude that the purpose of the Legislature in 1872 in using the word ‘ignorantly’ was to protect the public from mistakes due to want of knowledge and understanding of the proper use of medicines and drugs and that it does not encompass mistakes of fact having no relation to the lack of such knowledge and understanding. The mistake made by Stuart was not due to any lack of qualifications as a pharmacist and in our opinion did not constitute a violation of section 380. It is unnecessary to consider appellant's second contention.

In the reply brief of defendant the point is made that he was deprived of due process through failure of the authorities to comply with sections 26380 and 26381 of the Health and Safety Code, which require the sheriff, upon receipt of a verified complaint of the possession of a misbranded drug or device, to purchase a quantity of it, divide it into three parts and give one to the possessor. We do not pass upon the applicability of these requirements for the reason that the point was not raised at the trial, and it was conceded by defendant that the drug was adulterated as claimed by the People.

The judgment and order denying motion for new trial are affirmed as to the conviction of the manslaughter and reversed as to the conviction of violation of section 380 of the Penal Code, with instructions to dismiss Count II of the information.

FOOTNOTES

1.  Section 192: ‘Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: 1. Voluntary—upon a sudden quarrel or heat of passion. 2. Involuntary—in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection; provided that this subdivision shall not apply to acts committed in the driving of a vehicle. * * *’

FN2. Section 380: ‘Every apothecary, druggist, or person carrying on business as a dealer in drugs or medicines, or person employed as clark or salesman by such person, who, in putting up any drugs or medicines, or making up any prescription, or filling any order for drugs or medicines, willfully, negligently, or ignorantly omits to label the same, or puts an untrue label, stamp, or other designation of contents, upon any box, bottle, or other package containing any drugs or medicines, or substitutes a different article for any article prescribed or ordered, or puts up a greater or less quantity of any article than that prescribed or ordered, or otherwise deviates from the terms of the prescription or order which he undertakes to follow, in consequence of which human life or health is endangered, is guilty of a misdemeanor, or if death ensues, is guilty of a felony.’.  FN2. Section 380: ‘Every apothecary, druggist, or person carrying on business as a dealer in drugs or medicines, or person employed as clark or salesman by such person, who, in putting up any drugs or medicines, or making up any prescription, or filling any order for drugs or medicines, willfully, negligently, or ignorantly omits to label the same, or puts an untrue label, stamp, or other designation of contents, upon any box, bottle, or other package containing any drugs or medicines, or substitutes a different article for any article prescribed or ordered, or puts up a greater or less quantity of any article than that prescribed or ordered, or otherwise deviates from the terms of the prescription or order which he undertakes to follow, in consequence of which human life or health is endangered, is guilty of a misdemeanor, or if death ensues, is guilty of a felony.’

3.  Section 26280: ‘The manufacture, production, preparation, compounding, packing, selling, offering for sale, advertising or keeping for sale within the State of California, or the introduction into this State from any other State, Territory, or the District of Columbia, or from any foreign country, of any drug or device which is adulterated or misbranded is prohibited.’

SHINN, Presiding Justice.