ON APPELLANT’S MOTION FOR REHEARING
WOODLEY, Presiding Judge.We were in error in our conclusion that appellant’s possession of the 10 capsules containing secobarbital or seconal was sufficient to show a violation of Art. 726d V.A.P.C.
Section 3(d) of Art. 726d declares the possession of a barbiturate by any person to be unlawful “unless such person obtained the drug under the specific provision of Section 3 (a) (1) and (2) of this Act and possesses the drug in the container in which it was delivered to him by the pharmacist or practitioner *682selling or dispensing the same; and any other possession of a barbiturate * * * shall be prima facie evidence of illegal possession.”
The undisputed evidence shows that appellant obtained the capsules containing a barbiturate under the specific provisions of Section 3(a) (1) of Art. 726d, that is: the drug was delivered by a pharmacist; upon an original prescription; in a container bearing the name and address of the pharmacy from which it was delivered; the date filled; the number of the prescription; the name of the physician who prescribed the drug; and the name and address of the patient (defined in the act as the individual for whom a dangerous drug is prescribed, or to whom administered).
Under the provisions of Art. 726d V.A.P.C. “any other possession of a barbiturate” would be prima facie evidence of illegal possession but, having been obtained “under the specific provision of Section 3 (a) (1) of the Act”, possession of the drug in the container in which it was delivered to her by the pharmacist, was not such possession of a dangerous drug as is made unlawful by said Art. 726d V.A.P.C.
We find no basis for holding that the possession of the drug was unlawful because the prescription therefor was obtained by appellant through a telephone call; or because the physician believed that he was prescribing for a patient for whom he had prescribed similar drugs several years before; or because the drug was prescribed for appellant’s mother; or because appellant may have taken some of the capsules or may have been under the influence of such drug at the time of her arrest. If the evidence in these regards shows an offense, it is not the offense alleged in the information, namely, the unlawful possession of a dangerous drug. There was no evidence showing any false pretense or false representation by appellant in obtaining the secobarbital or the prescription therefor.
The responsibility for any irregularity or mistake on the part of the physician, in prescribing the drug, or the pharmacist in delivering it, does not rest upon appellant. Art. 726d V.A.P.C., upon which this prosecution rests, states that its purpose is to regulate and control the handling, sale and distribution of dangerous drugs as therein defined, and places upon manufacturers, wholesalers, licensed compounders of prescrip*683tions, and persons prescribing dangerous drugs, “a basic responsibility for preventing the improper distribution of such drugs to the extent that such drugs are produced, handled, sold, or prescribed by them.” Art. 726d, Sec. 1, V.A.P.C.
The evidence being insufficient to show the unlawful possession of a dangerous drug, appellant’s motion for rehearing is granted, the order of affirmance set aside, and the judgment is reversed and the cause remanded.