### No. 12079 

### INTHE 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 theThirteenthJudicial 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 1992Hon. Frank E. Blair, District Judge, sitting forAssociate Justice Wesley Castles, delivered the Opinion of the Court.

In this cause defendant, Nicholas Arthur Karathanos, was charged with the criminal saleof dangerous drugs inYellowstone County and was convicted by a jury on March 30, 1971. On April 13, 1971, he was sentenced to imprisonment in the stateprison for a period of twenty years. Shortly thereafter, defendant was admitted tobail 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 toHazel Jean Langford atthe Circle Inn, Billings, Montana, by a bar maid. Defendant was in the company of a man named Thornton. The three sat down ata table adjacent to the bar atthe 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.II Defendant then asked what shewanted that night and she informed him that she had $40. Defendant said that he could sellher 100 caps of Dexedrine for $12. She told him that she had $500 set aside tobuy 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 alsotold Mrs. Langford "that he had a drop and that he never kept the stuff in his apartment, and he said also, 

### 'Iwholesale 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 carwas 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 atan apartment shewas occupying temporarily. She offered defendant

a cup of coffeeand they satdown and talked fora few minutes. He asked her if shehad the "bread" ready. She said "yes". She actually had three $100, two $50 and five $20 bills, allof which

was marked money given her by the sheriff's office, her employer. Defendant,upon learning the money was available, went out tohis

car and returned in a few minutes with four cellophane packages containing about 1,000 tablets each, i.e. 4,000 inall, forwhich 

### Mrs. Langford paid him $480 inmarked money. Defendant put the money inhis front pants pocket. 

### Mrs. Langford, a bit later, turned over the tablets of Dexedrine toJimMeeks, then a deputy sheriff. Defendant was arrestedby sheriff's officers ashe leftMrs. ~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, ifnot 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 fromLaguna Beach, California, who had practiced fifteenyears, specializing in nutrition, obesity and chronic diseases such as diabetes and arthritis. The doctor firstmet defendant 

### in the spring of 1968 and treated him inAugust 

### 1969, atwhich time defendant's casewas diagnosed asa moderate form of narcolepsy. Defendant testified that prior tocontacting Dr. Albert he had been injured in Saigon and thereafter would fallasleepmomentarily, forno apparent reason. 

### Dr. Albert prescribed dextro-amphetamine sulphate inan amount of 5,000 capsules. Dexedrine 

### is a tradename for dextro-amphetamine sulphate. The quantity, as explained by the doctor, was because defendant represented tohim that his employer

was going to send him to SouthAmerica in the spring of 1970, for severalyears, possibly even four or fiveyears. 

### Dr. Albert had not seathedefendant sincehe 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 otthe Montana Dangerous Drug Act? B. Was there evidence sufficient toconvict and prove that defendant did not come within the exceptions

### a£ theMontana Dangerous Drug Act? C. Did the trialcourt err inrefusing togrant the defendant's motion todismiss atthe conclusion of the state's case? 

### D. Did the trial court err in refusing togive defendant's offered instructions 18, 19, 20, 21and 22? E. Are sections 54-131 and 54-132, R.C.M. 1947, of the Montana Dangerous Drug Act soambiguous and uncertain, in that the acts prohibited arenot sufficiently set forth, as tobar prosecution? F. Was punishment of twenty years in the stateprison 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 tellus what medication you prescribed? "A. 

### I prescribed a dextro-amphetamine sulphate. "Q. Do you know how many capsules you gave tohim, or dispensed tohim atthat 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" ata local or other pharmacy. Dr. Albert, himself, dispensed 5,000 Dexedrine capsules todefendant. 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 ifhe sells, manufactures, prepares, cultivates

## , compounds or processes any dangerous drug as defined in this actand does not come within the exceptions of section 

### 3 [54-1311." Regular physicians and surgeons may prescribe drugs for their patients inwriting, or dispense. We assume that Dr. Albert dispensed 5,000 capsules of Dexedrine tothe 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 atone time, toone person, by 

### a physician who 

### is a medical doctor. Section 54-131, R.C.M. 1947, reads inmaterial part: "(2) The following persons areexcepted from the designated criminal offenses of sections 4 and 5 [54-132 and 54-1331 of this actwhile acting in the ordinary and authorized course of theirbusiness, profession, occupation, employment or religious activityand whose activities in connection with dangerous drugs are solelyas specified in this section; 9~

# **

### "(j) A 

### person towhom or forwhose use any dangerous drug has been prescribed, sold, or dispensed by an authorized practitioner or pharmacist may lawfully possess such drug. " 

### Under the evidenceherewe areof the opinion that the defendant lawfully possessed the Dexedrine capsules in evidence in this

case. However, what we areconcerned with here is 

### not his possession, but the saleof 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 areexcepted from the designated criminal offenses of sections 4 and 5 [54-132 and 34-1331 of this actwhile acting inthe ordinary and authorized course of theirbusiness, profession, occupation, employment, or religious activityorwhose activities in connectionwith dangerous drugs are solelyas specified inthis section." (See Subdivisions (a) through (k)). Thus defendant's argument that he 

### is exempt 

### iswithout 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 orreligious activity and whose activities in connection with dangerous drugs are solely

asprescribed in this section.

### Defendant, under section 54-131(2) (j)

## ,R.C.M. 

### 1947, in thecontext inwhich it 

### appears and under the evidence, was legally authorized topossess and use inthe treatment of his

II



### narcolepsy" the 5,000 capsules or Dexedrine as directedby 

### Dr. Albert, but inno means was he authorized to sellthem 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 statetoplead and prove that defendant did not come within the exceptions stated in section 54-131, R.C.M. 

### 1947, 

### iswithout foundation. The stateis 

### not bound tonegate an exception contained ina statute; suchanexception aswe areconsidering here is 

### a matter of defense. In Fitzpatrickv. Stevenson, 104 Mont. 439, 443,444, 67 P.2d 310, we reaffirmed the following rule: "It has often been saidby this court that in

### a criminal case, it is

### not necessary for the state in 

### its information tonegative an exception contained in the statute, but such exception 

### is matter tobe asserted indefense. (Citing cases).II 

### It not being,necessarytoplead in the Information the exception referred to in section 54-132, R.C.M. 

### 1947, it

### was not necessary for the stateto prove that the defendant did not come within the exceptions stated in section 54-131, R.C.M. 

### 1947. In Statev. Davis, 141Mont. 197, 201, 376 P.2d 727, following Stevenson, this Court in referring toan exception said:

11



### Not being necessary toallege it, it

### was not necessary toprove it. II 

### Issues A,B,C, 

### and 

### E arewithout merit and the action of the trialcourt in refusing togrant defendant's motion todismiss atthe close of the state's casewas correct.

### Issues 

### D, 

### F and G 

### remain tobe resolved. This we shall do seriatim. D. 

### Defendant's proposed instructions 18, 19, 20, 21and 22 follow substantially the same theory aswe have discussed under issues A,B,C, 

### and E. 

### We 

### bve carefully read the testimony inthis case and have studied the proposed instructions and find them tobe without merit. 

### F. Was punishment of twenty years in the stateprison cruel and inhuman punishment under the facts of this case? Reasoning from cause toeffect, it 

### must be recognized that the sheriff of Yellowstone County did not employ anundercover agent and rent an apartment for her tooperate 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 fortifiedby the results of thepresentence investigation which appears in the districtcourt 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, 143Mont. 479,

Sentencewas imposed pursuant to the provisions of section 54-132,



### .R.C.M. 1947, which provides.inpertinent part: "(b) A 

### person convicted of criminal sale of dangerous drugs shallbe imprisoned inthe stateprison fornot less than one (1) year, nor more than life

# ** $<'I. 

### Being over 21years of age, defendant was sentenced to twenty years inthe stateprison. Defendant contends this sentence

was cruel and unusual punishment. At

### the time of sentence, defendantwas a fullygrown man, 

### 32 years of age, of unusual abilityinthe electronics field inwhich he earned $12,000 per year. No urgent monetary motive appeared for him to "push" dangerous drugs. The motivating forcebehind the saleof the first 100 Dexedrine capsules to

### Mrs. Langford, by his own testimony, was apparently his lust for her body. Moreover, the trialcourt 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 sentencewithin 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 51years of age, argued that this amounted to life imprisonment. The maximum punishment inMontana for the crime which defendant was charged with, 

### is lifeimprisonment. Black was denied certiorariby the United States Supreme Court. 361U.S. 

### 938, 80 S.Ct. 379, 

### 4 L.ed 2d 357. In Black 

### is language applicable tothis case: "'The Eighth Amendment was adopted toprevent inhuman, barbarous, or torturous punishment. It is possible for the length of a sentence tobe 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 willnot be regarded as crueland unusual. Edwards v. United States, 10Cir. 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 isno merit tothis assignment of error. The trialcourt 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, etseauentia. G. Was there entrapment in this case? A resolution of this question reouires a brief review of the evidence. On February 13, 1970, Hazel JeanLangford,

an undercover agent for the sheriff's office of Yellowstone County, went tothe Circle Inn atBillings under the direction of that office. She had an electronic transmitter concealed on her person. After entering the bar, she was introduced todefendant. The defendant, Mrs. Langford,and another, satdown ata table and ordered drinks. In the ensuing conversation, defendant asked 

### Mrs. Langford what kind of stuff shewanted. She in turn asked him what kind he had, towhich 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 sellher 100 Dexedrine caps for $12. She told him that she had $500 setaside tobuy stuff, and he informed her he had 10,000 caps 6f Dexedrine and that he would sellher 4,000 for $480. Defendant and Mrs. Langford then went tohis 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. Atthat time he came toher apartment where he delivered four cellophane packages each containing 1,000capsules of Dexedrine, for which she paid him $480 inmarked currency, supplied toher by the sheriff's office. Mrs. Langford specifically testified:"Q. Mrs. Langford, when you firstmet the defendant, 

### Mr. Karathanos, did he offer to sellyou, or did you offer tobuy? "A. He offered to sell." On cross-examination she testified tothe same thing and denied that she firstmade an offer topurchase. Defendant now contends that he was entrapped intocommitting 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, deceitfulrepresentations, or inducement, lured into the commission of a criminal act, can a case of entrapment be made out. In short, there is a controlling distinctionbetween inducing a person todo an unlawful act and settinga trap to catchhim in the execution of a criminal design of his own conception. The fact that theYellowstone 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 ifnot almost impossible to secure the evidence necessary toconvict by any other means than by the use of decoys. Certainly, there

a can be no objection totheir use if the officers do not by persuasion, deceitful representations or inducement, lure a

$ person who otherwisewould not be likely tobreak the law, into a criminal 

### act. Statev. Wong Hip Chung, 74 Mont. 

### 523, 241 

### P. 

### 620;Statev. 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 atthe trial; therefore, defendant was in no manner prejudiced by its use. InUnited 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 anaccused and an informant by means of a radio transmitter concealed on the informant's person, does not violate the FourthAmendment of the United States Constitutionany more than does an informant reporting on or secretly recording the conversations. There was no entrapment. Finding no reversible error, we a£firm thejudgmenf) of the trialcourt.

Hon. Frank E. Blair, sitting in place of Associate Justice lJesley Castles.



# / //'\~h/ief Justice

Associate Justices.