dissenting.
The majority grants relief by holding that the indictment is fundamentally defective.
The pertinent part of the indictment alleges that Charles, on or about August 21, 1976, did “knowingly and intentionally DELIVER A DANGEROUS DRUG, NAMELY: SINEQUAM, A DRUG PROHIBITED TO BE DISPENSED WITHOUT A PRESCRIPTION TO THOMAS CONNOLLY:
. ” Appellant first contends that his conviction cannot stand because federal law does not prohibit dispensing the drug without a prescription. Benoit v. State, 561 S.W.2d 810 (Tex.Cr.App.1977), and Jackson v. State, 518 S.W.2d 371 (Tex.Cr.App.1975), are cited in support of this contention. Appellant’s second contention is that the indictment,while alleging that the drug is “PROHIBITED TO BE DISPENSED WITHOUT A PRESCRIPTION,” is defective because it failed to allege that it was a drug which bears the legend: Caution: federal law prohibits dispensing without prescription.
The drug is misspelled in the indictment as “SINEQUAM.” The correct spelling of the drug is “sinequan.” Charles does not appear to have been misled by the typographical error since the indictment is attacked for the first time by post-conviction habeas corpus. In Lute v. State, 166 Tex.Cr.R. 357, 314 S.W.2d 98 (1958), a conviction for possession of heroin was upheld even though the drug was spelled “Herion” in the indictment.
Art. 4476-14, Sec. 2(a), Vernon’s Ann.Civ. St.,1 defines the term “dangerous drug.” One of those definitions is “[a]ny drug or device which bears the legend: Caution: federal law prohibits dispensing without prescription.”
*84021 U.S.C. § 353(b)(1),2 provides for drugs that may be dispensed only upon prescription. Moreover, 21 U.S.C., § 353(b)(4)3 requires prescription drugs to bear the legend “Caution: Federal law prohibits dispensing without prescription.” Thus, the allegation in an indictment that “sinequan” is “A DRUG PROHIBITED TO BE DISPENSED WITHOUT A PRESCRIPTION” is equivalent4 to alleging that “sinequan” is a drug “which bears the legend: Caution: federal law prohibits dispensing without prescription.” Appellant’s first contention should be overruled.
The Federal Food and Drug Administration (FDA) of the Department of Health, Education, and Welfare (HEW) is the agency responsible for determining what drugs may be dispensed only upon prescription under the Federal Food, Drug, and Cosmetics Act (FFDCA), 21 U.S.C. § 301, et seq.5 Jerome A. Halperin, Deputy Director, Bureau of Drugs, FDA, certifies that sinequan became an approved drug on September 23, 1969. The approval of that date “stipulates that the drug must be labeled as a prescription drug, bearing on the label the statement ‘Caution: Federal law prohibits dispensing without prescription," . . . ” Halperin further certifies that from September 23, 1969, until the present, sinequan has been restricted to prescription sale. Thus, sinequan was a prescription drug on the date of the offense alleged in the indictment and was required to bear the legend: “Caution: federal law prohibits dispensing without prescription.” The second contention should be overruled.
The indictment charges an offense under the statute. It charges that the dangerous drug sinequan, “A drug prohibited to be dispensed without a prescription”, was delivered to Connolly.
It is not necessary to set out every definition in a statute verbatim. For example, if an indictment alleges that an accused used a firearm in the course of committing a robbery or murder, it does not have to set out the definition of a firearm.
The indictment in the present case left out the words “federal law.” There is no dispute that the drug was prohibited. Charles did not claim lack of notice because he pled guilty to the offense and did not appeal the conviction. This is a waste of judicial time and expense to have another trial in a case like this.
The writer of the concurring opinion apparently believes that a judge should not undertake to find out what the federal law provides — in this case, the drugs which the *841federal law requires to bear the legend, “Caution: federal law prohibits dispensing without prescription. . . That information was not furnished by either party in the habeas corpus hearing. Would the writer of the concurring opinion hold that judges could neither ascertain nor brief the federal law upon a subject unless it was contained in the briefs of those interested in the case? If such were true, court decisions would do justice in fewer cases, and hearings and trials would be more like a game without regard to what the law provides.
In many cases this Court by authority of the Constitution has ascertained the facts by affidavits to make a decision in a habeas corpus matter.
Article 5, Section 5 of the Texas Constitution provides among other things that “[t]he Court of Criminal Appeals shall have power upon affidavit or otherwise to ascertain such matters of fact as may be necessary to the exercise of its jurisdiction.” If the Court can ascertain matters of fact by affidavit, then with stronger reason this Court can ascertain a matter of law in any way that it deems proper. Is the better practice to learn and apply the law or ignore it?
The relief sought should be denied.
W. C. DAVIS, J., joins in this dissent.. That statute provides:
“The term ‘dangerous drug’ means any drug or device that is not included in Schedules I through V of the Texas Controlled Substances Act and that is unsafe for self-medication, and includes the following:
(1)Tranquilizers.
(2) Procaine, its salts, derivatives, or compounds or mixtures thereof except ointments and creams for topical application containing not more than two and one-half percent (2½%) strength.
(3) Any drug or device which bears the legend: Caution: federal law prohibits dispensing without prescription, or the legend: Caution: federal law restricts this drug to use by or on the order of a licensed veterinarian.
(4) Phendimetrazine, its salts, derivatives, or compounds or mixtures thereof.
(5) Pentazocine, its salts, derivatives, or compounds or mixtures thereof.” (Emphasis supplied).
.That statute provides:
“A drug intended for use by man which—
(A) is a habit-forming drug to which section 352(d) of this title applies; or
(B) because of its toxicity or other potentiality for harmful effect, or the method of its use, or the collateral measures necessary to its use, is not safe for use except under the supervision of a practitioner licensed by law to administer such drug; or
(C) is limited by an approved application under section 355 of this title to use under the professional supervision of a practitioner licensed by law to administer such drug,
shall be dispensed only (i) upon a written prescription of a practitioner licensed by law to administer such drug, or (ii) upon an oral prescription of such practitioner which is reduced promptly to writing and filed by the pharmacist, or (iii) by refilling any such written or oral prescription if such refilling is authorized by the prescriber either in the original prescription or by oral order which is reduced promptly to writing and filed by the pharmacist. The act of dispensing a drug contrary to the provisions of this paragraph shall be deemed to be an act which results in the drug being misbranded while held for sale.”
. That statute provides:
“A drug which is subject to paragraph (1) of this subsection shall be deemed to be mis-branded if at any time prior to dispensing its label fails to bear the statement ‘Caution: Federal law prohibits dispensing without prescription’. A drug to which paragraph (1) of this subsection does not apply shall be deemed to be misbranded if at any time prior to dispensing its label bears the caution statement quoted in the preceding sentence.”
. Article 21.17, V.A.C.C.P., provides:
“Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.”
. For a detailed discussion of FDA’s authority in this regard, see National Nutritional Foods Ass’n v. Weinberger, 512 F.2d 688 (2d Cir.1975).