OF MICHIGAN

JUL 21 1959

LIBRARY

U.S. Department of Health, Education, and Welfare

FOOD AND DRUG ADMINISTRATION

NOTICES OF JUDGMENT UNDER THE FEDERAL FOOD, DRUG, AND COSMETIC ACT

[Given pursuant to section 705 of the Food, Drug, and Cosmetic Act]

5501-5520

DRUGS AND DEVICES

The cases reported herewith were instituted in the United States district courts by United States attorneys, acting upon reports submitted by the Department of Health, Education, and Welfare. They involve drugs which are required at time of interstate shipment to bear a label containing the statement "Caution: Federal law prohibits dispensing without prescription," and which were dispensed after such shipment without a prescription or by refilling a prescription without authorization. This dispensing was contrary to Section 503(b) (1), and thereby resulted in the dispensed drugs being misbranded while held for sale.

Published by direction of the Secretary of Health, Education, and Welfare. GEO. P. LARRICK, Commissioner of Food and Drugs.

DISPOSITION:

3-17-58. $300 fine and probation for 2 years.

5508. (F.D.C. No. 40458. S. Nos. 63-486/92 M.) INFORMATION FILED: 1-6-58, Dist. Utah, against James L. Kennedy, t/a Kennedy's Drug Store, Logan, Utah, and Grant L. Ballam (pharmacist).

CHARGE: Between 1-7-57 and 1-28-57, Dexedrine Sulfate tablets (counts 1, 2, and 7) were dispensed 3 times and Equanil tablets (counts 3 and 5) and Gantrisin tablets (counts 4 and 6) were each dispensed twice, upon requests for prescription refills without authorization by the prescriber.

PLEA: Guilty by Kennedy to all 7 counts of information and by Ballam to counts 2, 5, 6, and 7.

DISPOSITION: 2-20-58. Kennedy fined $2,300 and Ballam $600.

5509. (F.D.C. No. 40450. S. Nos. 64-870/1 M, 64–873 M, 64–941 M.) INFORMATION FILED: 12-26-57, S. Dist. Ind., against Stephen W. Tilson (pharmacist and manager for Hook Drugs, Inc.), Indianapolis, Ind.

CHARGE: Between 1-22-57 and 4-19-57, pentobarbital sodium capsules were dispensed twice and Dexedrine Sulfate tablets and phenylbutazone tablets were each dispensed once, upon requests for prescription refills without authorization by the prescriber.

PLEA: Guilty.

DISPOSITION: 2-20-58. $1,000 fine, plus costs.

5510. (F.D.C. No. 40482. S. Nos. 71-776 M, 71–780 M.)

INFORMATION FILED: 1-15-58, Dist. Minn., against Hubert J. Renchin, t/a Renchin Drug, St. Paul, Minn., and John A. Hoyer (pharmacist).

CHARGE: Between 5-9-57 and 5-17-57, Dexedrine Spansule capsules and pentobarbital sodium capsules were each dispensed once upon request for prescription refills without authorization by the prescriber.

PLEA: Guilty.

DISPOSITION: 3-24-58. Renchin fined $500 and Hoyer $250. Each defendant placed on probation for 1 year.

5511. (F.D.C. No. 40472. S. Nos. 58-545 M, 58–553/4 M.)

INFORMATION FILED: 1-29-58, Dist. Utah, against Jimmie W. Johnson, t/a Johnson Drug, Ogden, Utah.

CHARGE: Between 10-9-56 and 10-30-56, Dexedrine Sulfate tablets, secobarbital sodium capsules, and Butazolidin tablets were each dispensed once upon request for prescription refills without authorization by the prescriber. PLEA: Guilty.

DISPOSITION: 3-20-58. $600 fine.

5512. (F.D.C. No. 40598. S. Nos. 73-364 M, 73–366/7 M, 73–369 M.)

INFORMATION FILED: 9-11-57, N. Dist. Tex., against Joe Montgomery, Vega, Tex.

CHARGE: Between 1-16-57 and 2-8-57, cortisone acetate tablets, 10 mg. and 15 mg. Dexedrine Sulfate capsules, and penicillin G potassium tablets were each dispensed once without a prescription.

PLEA: Guilty.

DISPOSITION: 2-4-58. $300 fine and probation for 2 years.

5513. (F.D.C. No. 39969. S. Nos. 40-541/2 M, 40-544/5 M, 40–550/1 M.) INFORMATION FILED: 7-1-57, Dist. Minn., against Eureka Drug Co. (a partnership), Minneapolis, Minn., and Edward A. Pelant and Marcus W. Connolly (partners).

CHARGE: Between 3-27-56 and 4-5-56, Seconal Sodium capsules (counts 1, 3, and 5) and Dexedrine Sulfate tablets (counts 2, 4, and 6) were each dispensed 3 times without a prescription.

PLEA: Guilty by partnership to all 6 counts of information, by Pelant to counts 1 and 2, and by Connolly to counts 3, 4, 5, and 6.

DISPOSITION: 8-23-57. Partnership fined $500 and Pelant and Connolly $1,000 and $400, respectively.

5514. (F.D.C. No. 39829. S. Nos. 20-570 M, 61-767 M.)

INFORMATION FILED: 11-15-56, Dist. Columbia, against Vernon L. Adams, alias "Dimples," Washington, D.C.

CHARGE: Between 9-18-56 and 9-29-56, dextro-amphetamine sulfate tablets, amphetamine sulfate tablets, and secobarbital sodium capsules were each dispensed once without a prescription.

PLEA: Not guilty.

DISPOSITION: The case came on for trial before the court and jury on 12–13–56, and was concluded on 12-17-56, with the return of a verdict of guilty by the jury. On 1-4-57, the defendant was given a sentence of 180 days in jail. The case was appealed to the Municipal Court of Appeals for the District of Columbia; and, on 9-16-57, the following opinion was handed down by that court:

QUINN, Associate Judge: “Appellant was charged by the District of Columbia in separate informations with dispensing certain drugs on two different occasions although he was not a licensed pharmacist, in violation of Code 1951, 2-601. He was also prosecuted by the United States on a two-count information for the same acts as a violation of 21 U.S.C. §§ 331(k), 352 (d), and 353(b) (1) (B). The cases were consolidated for trial, a jury found him guilty of all charges, and these appeals followed. The only errors assigned relate to the reception of certain evidence and the sufficiency of the government's evidence to establish continuous custody of the drugs up to the time of trial. It is conceded that the same evidence was necessary to prove all the charges and thus our decision on these allegations of error will be dispositive of all appeals.

"The testimony of a police officer on behalf of the government indicated that appellant had delivered the drugs to him while he was working as an undercover agent. During his cross-examination by defense counsel, the following colloquy occurred:

"'Q. I will ask you this, sir: did you search this man's record to find out if he had a record for narcotics: Adams?

"'A. At what time?

"'Q. Any time during your investigation or tour of duty in this case. "'Yes, sir.

“'Did you ever find that he had any narcotic record: Adams? "'A. Not on narcotics, sir.'

The prosecutor contended that these questions in effect placed appellant's character in issue and that he was therefore entitled to introduce into evidence the records of appellant's convictions for certain other offenses. Over objection the trial court upheld this position. Another police officer then testified on direct examination that he had searched appellant's record and ascertained that he had been convicted of the unauthorized use of an automobile, of carrying a deadly weapon, and of robbery. The defense claimed that the alleged conviction for robbery was actually one for assault. This

contention was later shown to be accurate, and the trial judge at the close of the government's case gave a corrective instruction to the jury. Subsequently appellant took the stand and acknowledged the convictions, and the trial judge instructed the jury that they were admitted only for the purpose of impeaching his credibility.

"Appellant complains that it was improper for the prosecutor to adduce testimony of his prior convictions as evidence of bad character since they were unrelated to the specific character trait involved, namely, illegal dealing in narcotics or drugs. Our consideration of this contention requires a brief review of the settled rules of law applicable to character evidence. Character is never an issue in a criminal case unless the defendant chooses to make it one. Only after the defendant has introduced evidence of his good character may the government in rebuttal offer evidence of bad character. Such evidence is confined to that of general reputation. Consequently, specific incidents in the life of the accused may not be shown, but only his reputation in the community. In other words, a witness may state either on direct or on cross-examination only what he has heard, not what he knows, about the defendant. To be admissible the testimony must relate to the specific trait of character involved in the offense charged, unless the defendant seeks to establish a general reputation for honesty and truthfulness. Finally, while character ordinarily is made an issue through the testimony of witnesses for the defendant, it is possible to raise the issue through cross-examination of the government's witnesses and the prosecutor has the right to refute the evidence thus presented."

"Tested by these principles, we do not believe that the question put to the police officer on cross-examination by defense counsel was the proper way to elicit character evidence because it requested knowledge of specific incidents rather than reputation. Since the question could not be justified on any other basis, it should have been stricken as irrelevant. Once admitted, however, the effect of the testimony was to place character in issue, since it tended to establish a good character in appellant, and consequently the government had the right to rebut it. Appellant apparently is conceding that his character was in issue, but argues that it was an issue only to the extent of the character trait involved. We agree. Defense counsel's question was concerned only with narcotics violations and while the drugs involved here were not narcotics, we believe the offenses are similar enough so as to warrant a limitation on the evidence which the government could introduce in rebuttal. Clearly, then, it was error to permit the prosecution to show convictions for unauthorized use of an automobile, carrying a deadly weapon, and assault.

"We are not persuaded, however, that the admission of appellant's prior convictions during the government's case constituted reversible error, for appellant subsequently took the stand and his record was again revealed and was admissible for the purpose of affecting his credibility. Appellant says that the initial error deprived him of any choice and forced him to testify. Under some circumstances this argument might have validity, but here his counsel indicated early in the trial before the admission of his record that he intended to testify. The United States Court of Appeals for the District of Columbia has ruled in comparable situations that the defendant's rights were not prejudiced," and a careful study of the stenographic transcript convinces us that that was the case here.

1 Josey v. United States, 77 U.S. App. D.C. 321, 135 F. 2d 809 (1943).

a Stewart v. United States, 70 App. D.C. 101, 104 F. 2d 234 (1939).

Morris v. District of Columbia, 75 U.S. App. D.C. 82, 124 F. 2d 284 (1941). Michelson v. United States, 335 U.S. 469, 69 S. Ct. 213, 93 L. Ed. 168 (1948). See, e.g., Logan v. State, 95 Okl. Cr. 76, 239 P. 2d 1044 (1952); Brethern v. State, 191 Miss. 151, 2 Co. 2d 798 (1941); 1 Underhill's Criminal Evidence § 192 (5th ed. 1956).

They were amphetamine sulfate and secobarbital sodium.

Of. United States v. Modern Reed & Rattan Co., 159 F. 2d 656 (2nd Cir.), cert. den, 331 U.S. 831, 67 S. Ct. 1510, 91 L. Ed. 1845 (1947).

8 Lucas v. United States, 70 App. D.C. 92, 104 F. 2d 225 (1939); Skiskowski v. United States, 81 U.S. App. D.C. 274, 158 F. 2d 177 (1946).