(523 P.2d 121)
No. 25843Supreme Court of Colorado.
Decided June 10, 1974.
Defendant was convicted of refusing to make available to representatives of the State Board of Pharmacy, certain records concerning dangerous drugs and appealed.
Reversed
1. DRUGS AND NARCOTICS — Records — Board of Pharmacy — Prosecution — Burden — Defendant — Practitioner — Statute. In prosecution for refusal to make available to representatives of State Board of Pharmacy records concerning dangerous drugs, the prosecution had the burden of proving that the defendant was a “practitioner” subject to the disclosure requirements of 1969 Perm. Supp., C.R.S. 1963, 48-8-5.
2. CRIMINAL EVIDENCE — Burden of Proof — Prosecution. The burden of proof, in a criminal case, is on the prosecution to prove each and every element of the crime charged beyond a reasonable doubt.
3. DRUGS AND DRUGGISTS — Practitioner” — Failure to Prove — Files and Records — Acquittal. Where prosecution failed to prove that defendant was a “practitioner” subject to the mandatory disclosure requirements of the statute (1969 Perm. Supp., C.R.S. 1963, 48-8-5) with reference to the production of his files and records concerning dangerous drugs to representatives of the State Board of Pharmacy, held, under the circumstances, defendant’s motion for judgment of acquittal should have been granted.
Appeal from the District Court of Gunnison County, Honorable George V. Kempf, Judge.
John P. Moore, Attorney General, John E. Bush, Deputy, E. Ronald Beeks, Assistant, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, James F. Dumas, Jr., Chief
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Deputy, Lee Belstock, Deputy, for defendant-appellant.
In Department.
Opinion by MR. JUSTICE ERICKSON.
The defendant, Thor V. Jorgenson, was convicted of refusing to make available certain records concerning dangerous drugs to representatives of the State Board of Pharmacy, as required by 1969 Perm. Supp., C.R.S. 1963, 48-8-5 and 1969 Perm. Supp., C.R.S. 1963, 48-8-2(7). The defendant has appealed his conviction on the ground that the People failed to prove that his conduct came within the prohibition of the statute. We agree and reverse with directions that the defendant’s motion for a judgment of acquittal be granted.
In March of 1971, representatives of the State Board of Pharmacy appeared at Jorgenson’s place of business in Frisco, Colorado, and demanded that Jorgenson produce his files and records relating to dangerous drugs. See
1969 Perm. Supp., C.R.S. 1963, 48-8-4 and 48-8-5. For reasons which are unclear from the record, the defendant refused.
“‘Practitioner’ means a person authorized to practice medicine, veterinary medicine, or dentistry, or any other person who is authorized by the laws of this state to prescribe drugs acting within the scope of such authorization.”
The prosecution attempted to show that Jorgenson was authorized to practice medicine, but did not offer a certified record, or other admissible
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evidence. As a result, the trial court properly upheld the defense objection to the competency of the evidence.
The record before us is entirely devoid of evidence, either direct or circumstantial, from which it could be concluded beyond a reasonable doubt that Jorgenson was authorized under the laws of this state to practice medicine or prescribe drugs. People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973).
[2,3] The burden of proof, in a criminal case, is on the prosecution to prove each and every element of the crime charged beyond a reasonable doubt. People v. Vinnola, 177 Colo. 405, 494 P.2d 826 (1972); Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962). The prosecution failed to prove that the defendant was a “practitioner” who was subject to the mandatory disclosure requirements of 1969 Perm. Supp., C.R.S. 1963, 48-8-5.Accordingly, we reverse and remand with directions to the trial court to grant Jorgenson’s motion for judgment of acquittal.
MR. JUSTICE DAY, MR. JUSTICE GROVES, and MR. JUSTICE LEE concur.
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