People v. Rontey — 6 N.Y. Crim. 249

Majority

p. 249

Supreme Court-General Term-first Department.

January, 1889.

PEOPLE v. RONTEY.

Headnote

Unregistered and ¡Unlicensed Pharmacist in New York City.—Consolidation Act, §§ 2015-2024.—Penal Code, § 405.—Indictment.—Corroboration.

Upon the trial of defendant for unlawfully conducting a drug-store- and dispensing and compounding medicines and poison in New York City, he not -being a registered pharmacist according to-the requirements of the Consolidation Act, title 6, ch. 25, a witness testified that defendant admitted to him that he was not registered, that he had heard about the act; defendant saying that it was a matter of law, not of fact, whether he kept the store where the conversation took place, and which had all the paraphernalia of a drug-store,-—Held, that this was enough to show that defendant knew of the provisions of the act and the necessity of registration.

Testimony of the same witness that the store of defendant contained jars apparently containing drugs, ranged in rows on shelves, a prescription counter, which stood apart from the other portions-of the store, and that the place had the general characteristics of a drug-store; and that defendant stated to witness that the jars in question contained drugs, sufficiently corroborates the above-mentioned confession of defendant.

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An indictment is not open to the objection of duplicity which charges the same offense in the different ways in which it is described in two different sections of the act defining and punishing it.

When in such a trial the prosecution proves that defendant kept and conducted a pharmacy in the city of New York for retailing, dispensing, or compounding medicines or poisons, the burden is cast upon the defendant to prove that he is a registered pharmacist as required by the Consolidation Act, and the people are not required in the first place to negative such fact.

'The provisions of the Consolidation Act, §§ 2015-2024 inclusive, as to unregistered pharmacists, are not repealed by the Penal Code, §§ 405, 425, and 426, because section 405 of the latter act relates merely to the employes in drug-stores, not to the proprietors thereof, as does the Consolidation Act.

The provisions of the Consolidation Act in reference to registering pharmacists were claimed by defendant to be unconstitutional because they made part thereof, two existing laws,—to wit: Laws 187-1, ch. 202, and Laws 1873, ch. 817,—without inserting them therein, as required by the Constitution, art. 3, §' 17. As to the Act of 1871, the Consolidation Act relieved persons who may have been examined under that act, from the examination provided for by the Act of 1872 and continued by title 6 of chapter 25 of the Consolidation. Act. As to the Act of 1872, § 2017 of the Consolidation Act states, by way of mention, that the Board of Pharmacy created by the Act of 1872 is continued by the Consolidation Act, which is in fact done by other sections of that act. Held, that the objection was untenable.

It is no excuse for the practice of an unregistered pharmacist that there is no board in existence to give him his certificate. His duty in such case is to apply to the proper authorities to appoint the proper Board of Pharmacy that he may get from it the necessary qualifications to carry on his business.

Appeal by defendant Abel M. Rontey, from a judgment of the Court of General Sessions of the Peace in and for the City and County of Hew York, of June 16,1888, Hon. Frederick Smyth, presiding, entered upon the verdict of a jury convicting him of a violation of the law (title VI., chapter 25, of the Hew York City Consolidation Act), which renders it unlawful for any persons except such as are registered pharmacists, known as graduates in pharmacy, or licentiates in. pharmacy, within the meaning of said act, to open or con

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■duct in the City of New York any pharmacy, or store, for retailing, dispensing, or compounding medicines or poisons.

A graduate in pharmacy, within the meaning of the Consolidation Act, is a person who has had at least four years’ experience in stores where prescriptions of medical practitioners are compounded and who has obtained a diploma from any college of pharmacy in the United States, or from some authorized foreign institution or examining board.

A licentiate in pharmacy is a person who has had four years’ experience in a store wlieré prescriptions of medical practitioners are compounded, and who shall have passed an ■examination either before a board for the examination and licensing of druggists and prescription clerks in the City of New York, established by an act passed March 28, 1871, or before the Board of Pharmacy created by chapter 817 of the Laws of 1872, and continued by the said title VI., chapter 25 of the Consolidation Act.

It therefore appears that four years’ practical experience in a drug-store where prescriptions of medical practitioners are compounded is in all cases indispensably necessary; but ■such a four years’ practical experience will not of itself and without more entitle the person to open and conduct in the City of New York a pharmacy, or store, for retailing dispensing, or compounding medicines, or poisons; for, in order to ■entitle one to open and conduct such a pharmacy, or store, he must, in addition to the service of four years’ apprenticeship aforesaid, have cither graduated and received a diploma from a college of pharmacy in the United States, or from some authorized foreign institution, or examining board, or have passed an examination before one or the other of the two Boards of Pharmacy mentioned in the said title VI., chapter 25, of the Consolidation Act; that is to say, the Board created by L. 1871, cli. 202, or the Board created by L. 1872, ch. 817, and continued by the Consolidation Act.

The Board provided for by chapter 202, Laws of 1871,

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must consist of one skilled pharmacist, one practical druggist, and two regular physicians, of the City of New York, to be-appointed by the Mayor, and to hold office during his pleasure. This board was to act as an examining board for the examination and licensing of druggists, and all persons then employed, or thereafter to be employed, as clerks by any druggist, keeper, proprietor, or superintendent of any drugstore in the city of New York, and engaged in preparing and putting up physicians’ prescriptions, or in dispensing medicine. In and by said act it was provided that on and after six months from the date of the organization of the Board thus provided for, any person who should not have-passed an examination before and received a certificate from said Board, who should make up any physicians’ prescriptions, should be deemed guilty of misdemeanor, and should upon conviction therefor be fined not more than $500, or imprisoned not longer than six months, or both, at the discretion of the court.

This act was repealed by the Act of 1872 (chapter 817,. Laws of 1872), but by the Act of 1872, of which title VI., chapter 25 of the Consolidation Act is substantially a transcript, it was provided that those persons who had been examined and passed by the said Board before the law of its-creation was repealed, should without further examination by the Board cr.eated by the Act of 1872, and continued by the Consolidation Act, be entitled to the same rights and privileges as if they had actually been examined and passed by the said Board created as aforesaid by the Act of 1872,. and continued as aforesaid by the Consolidation Act.

The people gave evidence upon the trial tending tó show that on the 31st day of January, 1888, the defendant kept open and conducted, at No. 506 First Avenue, in the city of New York, a pharmacy or store for retailing, dispensing,, and compounding medicines, and that he was not a registered pharmacist.

' The defendant gave evidence tending to show that prior to the day laid in the indictment he had had thirteen years’’

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practical experience in the preparation of drugs and medicines, that he had served an apprenticeship of four years in stores where physicians’ prescriptions were compounded and filled; that prior to the day laid in the indictment he tendered to the Secretary of the Board of Pharmacy, created by the Act of 1872, and continued by the Consolidation Act, as aforesaid, a registration fee and demanded to be registered.

The defendant did not give any evidence tending to show that he had at any time prior to the day laid in the indictment obtained a diploma from any college of pharmacy within the United States, or from any authorized foreign institution or examining board. BTor did he give any evidence tending to show that he had at any time prior to the day laid in the indictment passed an examination either before the said Board for the examination and licensing of druggists and prescription clerks in the city of Uew York, established by the said Act of March 28, 1871; nor that he had, at any time prior to the day laid in the indictment, passed an examination before the Board of Pharmacy, created by chapter 817, of the Laws of 1872, and continued by the provisions ■of the Consolidation Act, nor that he was a foreign pharmacist, and had presented to the said last named Board of Pharmacy any satisfactory or other credentials, or any certificate of his competency and qualifications as a pharmacist.

On the contrary, defendant gave evidence tending to .show that he was not a foreign pharmacist, that he had never obtained any diploma, and that he had never been examined •or passed either by the said Board created by the Act of 1871, .aforesaid, or by the Board created by the Act of 1872, as aforesaid, and continued, as aforesaid, by the provisions of the Consolidation Act.

Defendant also gave evidence tending to show that thei’e had never been any appointment by any Mayor of the City •of Mew York of any persons to compose the Board for the examination and licensing of druggists and prescription clerks as provided and required by the aforesaid Act of March 28, 1871.

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When on the stand, as a witness on his own behalf, defendant testified on cross-examination that on the day laid in the indictment he kept and conducted at Ho. 506 First Avenue, in the City of Hew York, a pharmacy or store, for retailing, dispensing, and compounding medicines.

The jury found the defendant guilty as charged in the indictment, and defendant was sentenced to pay a fine of fifty dollars.

L. B. Treadwell, for defendant, appellant.

John R. Fellows, district attorney (McKenzie Sempler assistant, of counsel), for the people, respondent.

I. The prosecution having proved that the defendant kept and conducted a pharmacy or store, in the City of Hew York, for retailing, dispensing, or compounding medicines or poisons, the burden was upon the defendant to prove that he was a registered pharmacist, known as a graduate in pharmacy, or as a licentiate in pharmacy, within the meaning of title VI., chapter 25, of the Consolidation Act, and it did not devolve upon the people to prove that he was not such a registered pharmacist. Whart. Crim. Ev. §§ 333,. 341; Lawson’s Presumptive Evidence, 20; Apothecaries Co. v. Bentley, 1 C. & P. 588 ; Andrews v. Styrap, 26 L. T. R. 704; Raynor v. State (Wisc.), 22 N. W. Rep. 430 ; Sheldon v. Clarke, 1 Johns. 513 ; People v. Nyce, 3 N. Y. Crim. Rep. 150 .

This rule of evidence is the same in criminal cases as in actions for penalties in civil courts. Code Crim. Proc- § 392.

The case of People v. Hyce, supra, was almost precisely such an action as this.

II. The provisions of the Consolidation Act rendering it unlawful for any person not a registered pharmacist, known as a graduate in pharmacy, or as a licentiate in pharmacy, within the meaning of said act, to open or conduct any pharmacy or store, for retailing, dispensing, or compounding

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medicines or poisons in the City and County of New York,, were not repealed by the Penal Code. R

No provisions of the Consolidation Act are to be deemed repealed by the Penal Code, save such as are in conflict with some of the provisions o.f the Penal Code. People v. Jaehne, 4 N. Y. Crim. Rep. 478 .

There is no conflict between any provisions of the Penal Code and the provisions of the Consolidation Act, rendering it unlawful for any person not a registered .pharmacist, known as a graduate in pharmacy, within the meaning of said act, to open or conduct a pharmacy or store in the City of New York, for retailing, dispensing, or compounding-medicines or poisons.

III. The provisions of the Consolidation Act upon which the indictment was drawn are not unconstitutional' and void, as claimed by the appellant.

Title 6, chapter 25 of the New York City Consolidation Act is claimed to be unconstitutional for that it provides,, contrary to the prohibitions of article III., section 17 of the Constitution of the State of New York, that two existing laws shall be. made and deemed part thereof, without inserting them therein.

The laws claimed by the appellant to be the two existing laws thus made part of the Consolidation are the actshereinbefore respectively referred to as the Act of March 18, 1871, known as chapter 202, Laws of 1871, and the Act of 1872, known as chapter 817, Laws of 1872.

The charge that these two laws are, without being inserted therein, made part of the Consolidation Act, is false and entirely unfounded.

The only provision of the Consolidation Act that in any way refers or relates to the Act of 1871 is the provision of section 2017, dispensing persons who may have been examined and licensed by the Board provided for by the Act of 1871 from the necessity of being examined and passed by the Board of Pharmacy created by the Act of 1872 and continued by title 6, chapter 25, of the Consolidation Act.

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The effect of this provision of the Consolidation Act is to preserve such rights as may have been already acquired by compliance with the requirements of tiie Act of 1871.

It is the very height of absurdity to pretend that the ■effect of such a provision is to continue in force or to make part of the Consolidation Act any of the provisions of the Act of 1871.

The only provision of the Consolidation Act that in any way refers or relates to the Act of 1872 is the clause of section 2017, which states in the way of mention that the Board ■of Pharmacy created by the A.ct of 1872 „is continued by •the Consolidation Act.

It was not the object of this clause to continue in existence the Board of Pharmacy created by the Act of 1872. The language of this clause was not meant as language of enactment, it was meant as language of description made .use of for the purpose of identifying the Board of Pharmacy in question. The existence of the Board was continued and perpetuated by the enacting provisions of the following section (2018) which is a transcript of section 4 of the Act -of 1872, which provided for the creation and organization of said Board of Pharmacy.

A comparison of the title to chapter 25 of the Consolidation Act with the said Act of 1872 (chapter 202, Laws of 1872) which it is claimed is not inserted in the Consolidation Act, will show that said title 6, chapter 25 of the Consolidation Act is indeed but a mere transcript of the said Act of 1872.

There is, therefore, no merit in the accusation of unconstitutionality.

IV. The indictment does not charge two separate •offenses as claimed by the defendant, and is not bad for -duplicity.

The utmost that can be alleged in the way of objection to the indictment is that it is open to the objection of surplusage and repetition. For the indictment does seem to ■charge twice (each time, however, in different language but

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meaning the same thing) the same phase of the same transaction.

The language of the indictment: “Not being a registered pharmacist known as a graduate in pharmacy, or as a licentiate in pharmacy, within the meaning of title six of chapter 25 of the New York City Consolidation Act of 1882, did unlawfully open and conduct a certain pharmacy and store there for retailing, dispensing, and compounding medicines and poisons,” means precisely the same thing as the language: “ Not being registered according to the requirements of the above mentioned title, did then and there unlawfully keep open shop for the retailing and dispensing of such medicines and poisons.”

This repetition • may be accounted for by the careful particularity of the pleader in following the language of both sections of the Act (2015 and 2023) describing the same offense in different language.

The fault is the fault, not of the pleader who, in drawing the indictment, followed the language of the act, but of the unskillful framers of the act in failing to adopt in both sections 2015 and 2023 the same language to describe the same offense.

In fixing the penalty for violations of said section 2033 the framers of the act, instead of describing such violations by words of reference to said section or by the same words of description used therein, resorted to the very inartificial and clumsy device of a short description in different language. This is the only reasonable construction to 'apply to sections 2015 and 2023.

The defendant was indicted under the New York City Consolidation Act of 1882, for unlawfully opening and conducting a certain pharmacy and store, for retailing, dispensing, and compounding medicines and poisons, he not being a registered pharmacist known as a graduate in pharmacy or. as a licentiate in pharmacy, and not being-

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registered according to the requirements of the act mentioned.

Upon the trial a conversation was proved to have taken place between the appellant and a witness, in which he was asked if he was registered, and he said he was not. He said he had heard about the law requiring registration, and that it was a matter of law whether he was the proprietor of the store in which the conversation took place, and which had all the paraphernalia of a drug-store known as such in common parlance. In that conversation he expressed his opinion of the law as imperfect and as un-American. This is sufficient to justify the conclusion that he knew of the provisions of the act to which reference has been made, and the necessity of registration.

It is urged on the part of the defendant that his confession .required corroboration; but this seems to have been furnished, for the witness who had the conversation to which reference has been made, and who stated that he saw jars containing drugs arranged on shelves, a prescription counter which stood apart from the other portions of the store, and the general characteristics of a drug-store. It is true, that on being asked in reference to it, the witness said that he did not test any of them, and did not know of his own knowledge that they contained drugs, but he asserted that the appellant told him they did. This was held by the Recorder to be sufficient to put the appellant to his answer. Under the authorities this was enough. Slight evidence is sufficient. People v. Jaehne, 103 N. Y. 182 ; People v. Q’Neil, 109 Id. 251 .

But it may be observed in passing that -the defendant, when cross-examined as a witness, testified that the jars in question contained drugs; thus making that part of the prosecution complete, if any doubt had previously existed.

The appellant also objects to the indictment for duplicity. An examination of it leads to the conclusion that but •one offense is charged, and that is that the appellant was Neither a graduate in pharmacy nor a licentiate, and that lie

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■unlawfully opened and conducted a drug-store; not being registered according to the requirements of the statute.

The fault, if any, as suggested by the counsel for the people, is in the pleader’s following the language of the act, which, in some respects, may be considered unskillful; two sections,—namely, sections 2015 and 2023,—using the same language to describe the same offense. Section 2015, for example, defines the constituent elements of the crime in -question, but does not prescribe the penalty, which was left for section 2023, in which will be found the penalty for all violations, not only of section 2015, but for the other provisions of the title. This is regarded as a sufficient answer -to the objection stated.

The people omitted to prove that the appellant was not -a registered pharmacist, or a licentiate in pharmacy, within the meaning of the act of 1882. Although, perhaps, this was not distinctly raised as a point in the case, it may be •considered in passing; and all that it is necessary to say ■of it is, that the people were under no obligation to prove that in the first instance. This is settled by two adjudications. Apothecaries’ Company v. Bentley, 1 C. & P. 538; People v. Nyce, 3 N. Y. Crim. Rep. 50 .

It is contended also in favor of the defendant that the .sections under which the defendant was indicted, namely, sections 2015 to' 2024 inclusive, of the Consolidation Act, were expressly repealed by sections 405,425, and 426 of the Penal Code. This is an erroneous view of the Penal Code, for the reason that section 405 of the act relates to persons who are employed in a drug-store or apothecary’s shop, and not to the proprietors; a distinction which the learned counsel for the appellant seems to have overlooked.

It will be observed upon examination, that it does not render it unlawful for a person to open or conduct a store, for dispensing or compounding medicines or poisons. It ■does not prescribe what class of persons may or may not be proprietors, nor does it refer to the competency and qualifications of the heads of establishments. It is only designed

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to secure the attendance of competent clerics in such places,, and to render it unlawful for any employe to accept such a position unless he possesses the requisite qualifications. In this respect, the provisions of the Consolidation Act are-radically different. It is intended to reach not only the incompetency of proprietors of establishments for retailing and dispensing medicines; the obvious theory of the legislation being that the head of the establishment must himself understand the business in order to insure safe, intelligent, diligent, and efficient service on the part of his clerks, as suggested by the counsel for the people. It necessarily follows from this view that, so far as the Consolidation Act renders it unlawful for any persons save such as possess the-prescribed qualifications to act as proprietors of pharmacies or drug-stores, it is not at all in conflict with, and is not repealed by, the provisions of the Penal Code.

It is further objected that the provisions of the Consolidation Act, upon which the indictment was framed, we re-unconstitutional and void, the reason assigned being that section 2017 made two existing laws,—to wit, chapter 202; of the Laws of 1871, and chapter 816 of the Laws of 1872,. —a part of the Consolidation Act, without inserting them therein, as required by article 3, section 17, of the Constitution of the State, which is as follows: “ Section 17. No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act,, or which shall enact that any existing law, or any part thereof, shall be applicable, except by inserting it in such act.”

It has been said that this provision of the Constitution was to prevent blind legislation. People v. Haight, 7 Hun, 39 . But, however this may be, the answer to the proposition is that the section referred to is not subject to the criticism pronounced upon it.

The only provision of the Consolidation Act which refers, to the Act of 1871 is to be found in section 2017, which in effect relieves persons who may have been examined and

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licensed by the Board provided for by that act, from the necessity of the examination provided for by the Act of 1872, and continued by title 6, of chapter 25, of the Consoli-dation Act.

Section 2018, it is true, provides for an examination before the Board established by the Act passed March 28, 1871, or the Board of Pharmacy created by chapter 817, of the Laws •of 1872; and, to use the language of the section, “continued by this title.” The Act of 1871 had been repealed by the Act of 1872, and it is clear from the language of the section that it was intended to continue the provisions of the Act of 1872, which were set out in hm verba in section 2017. If it were the object to continue the existence of the Board of Pharmacy created by the Act of 1872, then it was established by the repetition of the Act relating to that subject. But the existence of the Board was in fact continued and perpetuated by the enacting provisions of section 2018, which is a transcript of section 4, of the Act of 1872, and which provided for the creation and organization of the Board mentioned. There is, therefore, no value in this assertion of unconstitutionality.

The further ground is taken on behalf of the appellant that there was no Board of Pharmacy in existence, as contemplated by the Act of 1872, and section 2018 of the Consolidation Act; and that the appellant was not able, therefore, to obtain the certificate or to make the registration required. This fact, assuming it to be true, does not relieve the appellant from the penalties imposed by the Consolidation Act. If the law existed requiring the appointment of the Board, it was the duty of the authorities to appoint the necessary and proper persons to accomplish the object of the statute. If they failed to do that, they could be compelled by proper proceedings to do it. If the appellant was desirous of conforming to the law, he should have required the proper Board of Pharmacy7 to be appointed, as he might have, ■and then proceed to get from it the necessary qualifications to enable him to transact his business. The statute was in the nature of a police regulation aimed at greater safety to

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the people by requiring that drugs should be dispensed only by experienced persons to whom alone that duty should be-assigned and who alone should be permitted to discharge it. The appellant, therefore, was not justified in openly disregarding the provisions of the statute which required important and substantial forms to be observed before attempting to sell drugs and medicines. Public safety must be regarded as superior to any private rights, and his business must yield, to the necessities recognized by proper legislation.

We therefore find in the examination of this case no reason for interfering with the judgment, and it must be-affirmed.

Van Brunt, P. J., and Macomber, J., concur.

Cases cited

Sheldon v. Clark 1 Johns. 513 N.Y. Sup. Ct. p. 254
People v. Jaehne 103 N. Y. 182 N.Y. 1886-10-05 p. 258