No. 12079 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-VS - 

NICHOLAS ARTHUR KARATHANOS, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable C. B. Sande, Judge presiding. 

Counsel of Record: 

For Appellant : 

Sandall, Moses and Cavan, Billings, Montana. 

Charles F. Moses argued, Billings, Montana. 

For Respondent : 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana. 

J. C. Weingartner, Deputy Attorney General, argued, 

Helena, Montana. 

Harold F. Hanser, County Attorney, argued, Billings, 

Montana. 

Submitted: January 11, 1972 

Decided : I 7972 

Filed: FrP 1992 
Hon. Frank E. Blair, District Judge, sitting for Associate Justice 

Wesley Castles, delivered the Opinion of the Court. 

In this cause defendant, Nicholas Arthur Karathanos, was 

charged with the criminal sale of dangerous drugs in Yellowstone 

County and was convicted by a jury on March 30, 1971. On April 

13, 1971, he was sentenced to imprisonment in the state prison 

for a period of twenty years. Shortly thereafter, defendant was 

admitted to bail in the sum of $15,000, which was furnished. On 

June 1, 1971, defendant appealed. 

Substantially the facts in this case are: 

Defendant is 32 years of age, unmarried, a field systems 

engineer for Collins Radio Company and has never previously been 

charged with any crime. On February 13, 1970, defendant was 

introduced to Hazel Jean Langford at the Circle Inn, Billings, 

Montana, by a bar maid. Defendant was in the company of a man 

named Thornton. The three sat down at a table adjacent to the 

bar at the Circle Inn. Defendant ordered a round of drinks. 

During the ensuing conversation, defendant asked Mrs. Langford 

what kind of stuff 6he wanted. Mrs. Langford asked him what kind 

of stuff he had. He replied "that he only had Dexedrine left. I I 

Defendant then asked what she wanted that night and she informed 

him that she had $40. Defendant said that he could sell her 100 

caps of Dexedrine for $12. She told him that she had $500 set 

aside to buy stuff with; defendant then stated that he could sell 

her 4,000 caps of Dexedrine for $480, and he would &f iwr them the 

next day between 1:00 and 2:00 o'clock, p.m. He also told Mrs. 

Langford "that he had a drop and that he never kept the stuff in 

his apartment, and he said also, 'I wholesale only, if I were to 

1 t1 push on the street I would be busted in two days. 
Defendant and Mrs. Langford then went outside the Circle 

Inn, where defendant's car was parked. Both got in the car and 

defendant reached under the seat and pulled out a package of 100 

caps of Dexedrine; Mrs. Langford paid him $12 and he gave her the 

Dexedrine. The next day defendant called on Mrs. Langford at an 

apartment she was occupying temporarily. She offered defendant 

a cup of coffee and they sat down and talked for a few minutes. 

He asked her if she had the "bread" ready. She said "yes". She 

actually had three $100, two $50 and five $20 bills, all of which 

was marked money given her by the sheriff's office, her employer. 

Defendant,upon learning the money was available, went out to his 

car and returned in a few minutes with four cellophane packages 

containing about 1,000 tablets each, i.e. 4,000 in all, for which 

Mrs. Langford paid him $480 in marked money. Defendant put the 

money in his front pants pocket. Mrs. Langford, a bit later, 

turned over the tablets of Dexedrine to Jim Meeks, then a deputy 

sheriff. Defendant was arrested by sheriff's officers as he 

left Mrs. ~angford's apartment. 

During her conversations with defendant, Mrs. Langford 

had an electronic transmitter concealed on her person and the 

sheriff's office could hear much, if not most, of the conversation 

between them. The sheriff's office explained that this was done 

primarily for Mrs. ~angford's protection. 

The defense called as a witness one Dr. Wesley Duane 

Albert, a licensed physician and surgeon from Laguna Beach, 

California, who had practiced fifteen years, specializing in 

nutrition, obesity and chronic diseases such as diabetes and 

arthritis. The doctor first met defendant in the spring of 1968 

and treated him in August 1969, at which time defendant's case 
was diagnosed as a moderate form of narcolepsy. Defendant 

testified that prior to contacting Dr. Albert he had been injured 

in Saigon and thereafter would fall asleep momentarily, for no 

apparent reason. Dr. Albert prescribed dextro-amphetamine sulphate 

in an amount of 5,000 capsules. Dexedrine is a trade name for 

dextro-amphetamine sulphate. The quantity, as explained by the 

doctor, was because defendant represented to him that his employer 

was going to send him to South America in the spring of 1970, 

for several years, possibly even four or five years. Dr. Albert 

had not seathe defendant since he gave him the 5,000 capsules 

of the drug prescribed, until the trial. 

Defendant raises seven issues for review on this appeal. 

They can be briefly summarized as follows: 

A. Did defendant come within the exceptions ot the 

Montana Dangerous Drug Act? 

B. Was there evidence sufficient to convict and prove 

that defendant did not come within the exceptions a£ the Montana 

Dangerous Drug Act? 

C. Did the trial court err in refusing to grant the 

defendant's motion to dismiss at the conclusion of the state's 

case? 

D. Did the trial court err in refusing to give defendant's 

offered instructions 18, 19, 20, 21 and 22? 

E. Are sections 54-131 and 54-132, R.C.M. 1947, of the 

Montana Dangerous Drug Act so ambiguous and uncertain, in that 

the acts prohibited are not sufficiently set forth, as to bar 

prosecution? 

F. Was punishment of twenty years in the state prison 

cruel and unusual punishment under the facts in this case? 

G. Was there entrapment in this case? 
Issues A,B,C and E can be treated together but before our 

discussion we set forth pertinent testimony of Dr. Wesley Albert: 

"Q. Would you tell us what medication you prescribed? 

"A. I prescribed a dextro-amphetamine sulphate. 

"Q. Do you know how many capsules you gave to him, 

or dispensed to him at that time? 

"A. Yes, I gave him 5,000 capsules." 

From this testimony it appears that Dr. Albert was a 

dispensing physician and carried his own drugs. It does not 

appear that he wrote a prescription, nor that a prescription 

was "filled" at a local or other pharmacy. Dr. Albert, himself, 

dispensed 5,000 Dexedrine capsules to defendant. 

The law under which defendant was charged is section 

54-132(a), R.C.M. 1947: 

"(a) A person commits the offense of a criminal 

sale of dangerous drugs if he sells, manufactures, 

prepares, cultivates , compounds or processes any 

dangerous drug as defined in this act and does not 

come within the exceptions of section 3 [54-1311." 

Regular physicians and surgeons may prescribe drugs for 

their patients in writing, or dispense. We assume that Dr. Albert 

dispensed 5,000 capsules of Dexedrine to the defendant, in full 

conformity with California law. There is nothing the record 

to indicate otherwise, whatever we may think of the impropriety 

of dispensing 5,000 capsules of Dexedrine at one time, to one 

person, by a physician who is a medical doctor. 

Section 54-131, R.C.M. 1947, reads in material part: 

"(2) The following persons are excepted from the 

designated criminal offenses of sections 4 and 5 

[54-132 and 54-1331 of this act while acting in the 

ordinary and authorized course of their business, 

profession, occupation, employment or religious 

activity and whose activities in connection with 

dangerous drugs are solely as specified in this 

section; 9~ * * 
"(j) A person to whom or for whose use 

any dangerous drug has been prescribed, sold, 

or dispensed by an authorized practitioner or 

pharmacist may lawfully possess such drug. " 

Under the evidence here we are of the opinion that the defendant 

lawfully possessed the Dexedrine capsules in evidence in this 

case. 

However, what we are concerned with here is not his 

possession, but the sale of the lawfully possessed drug to 

the sheriff's undercover agent. The argument ok defendant that 

section 54-132, R.C .M. 1947, precludes prosecution for the sale 

of dangerous drugs by a person who comes within section 54- 

3(2) (j) , R.C.M. 1947, is without merit. Subsection (j) is 

not an exemption of status but of certain activities and is 

c'ontrolled by section 54-131(2), which reads: 

"(2) The following persons are excepted from 

the designated criminal offenses of sections 

4 and 5 [54-132 and 34-1331 of this act while 

acting in the ordinary and authorized course of 

their business, profession, occupation, employment, or religious activity or whose activities 

in connection with dangerous drugs are solely as 

specified in this section." (See Subdivisions 

(a) through (k)). 

Thus defendant's argument that he is exempt is without 

foundation. Section 54-132, R.C .M. 1947, is clear and unambiguous, 

so clear and unambiguous in fact, that it construes itself. So, 

too, is subdivision (2) of section 54-131, R.C.M. 1947. Subdivisions (a) through (k) , under section 54-131 (2), except 

from designated criminal offenses of sections 54-132 and 54-133, 

those acting in the ordinary and authorized course of their 

business , profession, occupation, employment or religious activity 

and whose activities in connection with dangerous drugs are solely 

as prescribed in this section. 
Defendant, under section 54-131(2) (j) , R.C.M. 1947, 

in the context in which it appears and under the evidence, was 

legally authorized to possess and use in the treatment of his 

I I narcolepsy" the 5,000 capsules or Dexedrine as directed by 

Dr. Albert, but in no means was he authorized to sell them in 

outright defiance 02 the p1ai.n terms of section 54-132, R.C.M. 

1947. 

The contention of defendant that it was the duty of 

the state to plead and prove that defendant did not come within 

the exceptions stated in section 54-131, R.C.M. 1947, is without 

foundation. The state is not bound to negate an exception contained in a statute; such an exception as we are considering 

here is a matter of defense. In Fitzpatrick v. Stevenson, 104 

Mont. 439, 443,444, 67 P.2d 310, we reaffirmed the following 

rule: 

"It has often been said by this court that 

in a criminal case, it is not necessary for 

the state in its information to negative an 

exception contained in the statute, but such 

exception is matter to be asserted in defense. 

(Citing cases). I I 

It not being ,necessary to plead in the Information the 

exception referred to in section 54-132, R.C.M. 1947, it was not 

necessary for the state to prove that the defendant did not come 

within the exceptions stated in section 54-131, R.C.M. 1947. 

In State v. Davis, 141 Mont. 197, 201, 376 P.2d 727, following 

Stevenson, this Court in referring to an exception said: 

11 Not being necessary to allege it, 

it was not necessary to prove it. I I 

Issues A,B,C, and E are without merit and the action of 

the trial court in refusing to grant defendant's motion to dismiss 

at the close of the state's case was correct. 
Issues D, F and G remain to be resolved. This we shall 

do seriatim. 

D. Defendant's proposed instructions 18, 19, 20, 21 and 

22 follow substantially the same theory as we have discussed 

under issues A,B,C, and E. We b ve carefully read the testimony 

in this case and have studied the proposed instructions and find 

them to be without merit. 

F. Was punishment of twenty years in the state prison 

cruel and inhuman punishment under the facts of this case? 

Reasoning from cause to effect, it must be recognized 

that the sheriff of Yellowstone County did not employ an undercover agent and rent an apartment for her to operate from in 

making an appointment with defendant for the purchase of drugs, 

absent previous suspicious conduct on the part of defendant in 

the dangerous drug area. This reasoning is fortified by the 

results of the presentence investigation which appears in the 

district court file. Presentence investigations may be considered 

by the court before the pronouncement of sentence. Section 95- 

2203, R.C.M. 1947; Petition of Jerald A. Armor, 143 Mont. 479, 

Sentence was imposed pursuant to the provisions of 

section 54-132, . R.C.M. 1947, which provides .in pertinent part: 

"(b) A person convicted of criminal sale of 

dangerous drugs shall be imprisoned in the 

state prison for not less than one (1) year, 

nor more than life * * $<'I. 

Being over 21 years of age, defendant was sentenced to twenty 

years in the state prison. Defendant contends this sentence 

was cruel and unusual punishment. At the time of sentence, defendant was a fully grown man, 32 years of age, of unusual ability 
in the electronics field in which he earned $12,000 per year. 

No urgent monetary motive appeared for him to "push" dangerous 

drugs. The motivating force behind the sale of the first 100 

Dexedrine capsules to Mrs. Langford, by his own testimony, was 

apparently his lust for her body. 

Moreover, the trial court could properly consider the 

fact of his purchase of 5,000 Dexedrine capsules from the California doctor was, in the light of his sale of 4,000 capsules to 

the sheriff's undercover agent, a circumstance which was indicative of a course of conduct and smacked of various other sales 

and a modus operandi. 

It is the general rule that a sentence within the maximum 

authorized by statute is not cruel and unusual punishment. The 

Ninth Circuit Court of Appeals in Black v. United States, 269 

F.2d 38, 43, affirmed a thirty year sentence on a narcotic charge. 

There appellant, then 51 years of age, argued that this amounted 

to life imprisonment. The maximum punishment in Montana for the 

crime which defendant was charged with, is life imprisonment. 

Black was denied certiorari by the United States Supreme Court. 

361 U.S. 938, 80 S.Ct. 379, 4 L.ed 2d 357. 

In Black is language applicable to this case: 

"'The Eighth Amendment was adopted to prevent 

inhuman, barbarous, or torturous punishment. 

It is possible for the length of a sentence to be 

so disproportionate to the offense as to fall 

within the inhibition. Hermans v. United States , 6 Cir. 163 F.2d 228, 237. Ordinarily, however, 

where the sentence imposed is within the limits 

prescribed by the statute for the offense committed, it will not be regarded as cruel and 

unusual. Edwards v. United States, 10 Cir. 206 

F.2d 855. In our view the aggregate sentence 

imposed on Black is not so disproportionate 

to the offense committed as to offend the Eighth 

Amendment ban. " 
There is no merit to this assignment of error. The 

trial court observed the defendant testify. It was vested with 

a wide discretion in fixing the punishment. No abuse of discretion appears. An excellent treatment of "Cruel PunishmentLength of Sentence" appears in 33 ALR3d 343, et seauentia. 

G. Was there entrapment in this case? 

A resolution of this question reouires a brief review 

of the evidence. On February 13, 1970, Hazel Jean Langford, 

an undercover agent for the sheriff's office of Yellowstone 

County, went to the Circle Inn at Billings under the direction 

of that office. She had an electronic transmitter concealed on 

her person. After entering the bar, she was introduced to defendant. The defendant, Mrs. Langford,and another, sat down 

at a table and ordered drinks. In the ensuing conversation, 

defendant asked Mrs. Langford what kind of stuff she wanted. She 

in turn asked him what kind he had, to which he replied that he 

only had Dexedrine capsules left. He again asked her what she 

wanted and she told him she only had $40. He then told her he 

could sell her 100 Dexedrine caps for $12. She told him that 

she had $500 set aside to buy stuff, and he informed her he had 

10,000 caps 6f Dexedrine and that he would sell her 4,000 for 

$480. Defendant and Mrs. Langford then went to his car, where 

he delivered a package of 100 capsules of the drug., 

The next day defendant telephoned Mrs. Langford and told 

her he would deliver the 4,000 capsules at 4 p.m. At that time 

he came to her apartment where he delivered four cellophane packages each containing 1,000 capsules of Dexedrine, for which she 

paid him $480 in marked currency, supplied to her by the sheriff's 

office. Mrs. Langford specifically testified: 
"Q. Mrs. Langford, when you first met the 

defendant, Mr. Karathanos, did he offer to 

sell you, or did you offer to buy? 

"A. He offered to sell." 

On cross-examination she testified to the same thing and denied 

that she first made an offer to purchase. 

Defendant now contends that he was entrapped into committing the offense charged. With this contention, we cannot 

agree. Entrapment occurs only when the criminal intent or 

design originates in the mind of the police officer or informer 

and not with the accused, and the accused is lured or induced 

into committing a crime he had no intention of committing. Only 

when the criminal design originates, not with the accused, but 

in the mind of government officers and the accused is by persuasion, deceitful representations, or inducement, lured into the 

commission of a criminal act, can a case of entrapment be made 

out. In short, there is a controlling distinction between inducing a person to do an unlawful act and setting a trap to 

catch him in the execution of a criminal design of his own conception. The fact that the Yellowstone County sheriff's office 

afforded the opportunity or facility for the commission of the 

offense, does not come within the entrapment rule. In this class 

of offenses, usually committed secretly, it is difficult if not 

almost impossible to secure the evidence necessary to convict 

by any other means than by the use of decoys. Certainly, there 

a 

can be no objection to their use if the officers do not by 

persuasion, deceitful representations or inducement, lure a 

$ 

person who otherwise would not be likely to break the law, into 

a criminal act. State v. Wong Hip Chung, 74 Mont. 523, 241 P. 620; 
State v. Parr, 129 Mont. 175, 283 P.2d 1086; 22 C.J.S. 137, $5 

Finally, we consider the use of the electronic transmitter as an incident of the claimed entrapment. This device 

was used by the sheriff for the protection of his employee, 

Mrs. Langford. The tape was not used at the trial; therefore, 

defendant was in no manner prejudiced by its use. 

In United States v. James A. White, U.S. -9 

91 S.Ct. , 28 L ed 2d 453, the view was expressed that 

police eavesdropping on conversations between an accused and an 

informant by means of a radio transmitter concealed on the 

informant's person, does not violate the Fourth Amendment of 

the United States Constitution any more than does an informant 

reporting on or secretly recording the conversations. 

There was no entrapment. 

Finding no reversible error, we a £firm the judgmenf) 

of the trial court. 

Hon. Frank E. Blair, sitting 

in place of Associate Justice 

lJesley Castles. 

/ //'\~h/ief Justice 

Associate Justices.