Commonwealth v. Bernabei

• Decision Date: 14 December 1925
• Docket Number: 226-1925
• Citation: 86 Pa.Super. 550
• Parties: Commonwealth v. Bernabei, Appellant
• Court: Pennsylvania Superior Court

86 Pa.Super. 550

Commonwealth v. Bernabei, Appellant

No. 226-1925

Superior Court of Pennsylvania

December 14, 1925

Argued October 6, 1925

Appeal by defendant from the judgment and sentence of the Q. S Philadelphia County-1924 No. 477, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Ernest Bernabei.

Indictment for possessing narcotic drugs. Before Henninger, P. J. 50th Judicial District, specially presiding.

The facts are stated in the opinion of the Superior Court.

Verdict of guilty on which judgment of sentence was passed. Defendant appealed.

Errors assigned were, among others, various rulings on evidence.

Harry A. Mackey, for appellant.

Michael A. Foley, Asst. District Attorney and with him Samuel P Rotan, District Attorney, for appellee.

Before Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.

OPINION

KELLER J.

Appellant was charged with violating the provisions of the Act of July 11, 1917, P. L. 758, regulating the possession, control, sale, etc., of certain narcotic drugs. The indictment contained two counts. The first charged the defendant with unlawfully having in his possession and under his control a quantity of cocaine; the second, with unlawfully dealing in, dispensing, selling, and trafficking in said drug. He was convicted on the first count and acquitted on the second. The court subsequently granted a new trial. At his second trial, which was confined to the count for unlawful possession, defendant's counsel took the position that no evidence concerning the possession of drugs incident to alleged sales which had been testified to at the first trial could be received. We cannot assent to this proposition. At the first trial this very same evidence, though found by the jury to be insufficient to support a conviction of the unlawful sale or dispensing of cocaine, was adjudged sufficient to sustain a conviction for unlawful possession of the drug. If relevant and competent evidence on the charge of unlawful possession at the first trial, it did not become irrelevant and incompetent on the same charge because the defendant was acquitted of unlawfully selling the drug. A somewhat similar contention was advanced in the case of Com. v. Leib, 76 Pa.Super. 413, 423, 426, where the defendant was convicted of forging certain duplicate tax receipts and acquitted of uttering them. We disposed of the contention as follows: " An acquittal of forgery does not bar a prosecution for uttering the same forged instrument; . . . . nor does an acquittal of uttering a forged instrument preclude a subsequent prosecution for forging it . . . . And any evidence introduced at the first trial which is relevant to the second prosecution may be offered and received on such trial; none of it is discredited, so as to bar its admission, or rendered incompetent, at the second trial, because of the defendant's acquittal at the trial when it was first presented . . . . Had the defendant been tried for forgery alone on this testimony and been convicted, and subsequently been tried for uttering the forgery on the same testimony and been acquitted, his former conviction would not have been affected thereby. Nor if he had been first tried on the charge of uttering, and acquitted, would it have prevented his being tried for forgery and the same testimony being used to secure his conviction on the later charge . . . . In like manner, a man may be acquitted of receiving stolen goods and subsequently convicted of larceny when the only incriminating evidence in the case is his possession of the stolen article, or he may be acquitted of larceny and subsequently convicted of receiving stolen goods, on the same evidence; in either case the acquittal does not render relevant and competent evidence in the second case incompetent and inadmissible because it was received in the first case and failed to secure a conviction." The second, third, fourth and fifth assignments of error are overruled.

Appellant's main contention, however, is that having proven he was a registered pharmacist actually engaged as a retail druggist, he could not be convicted of the unlawful possession of cocaine; that proof that he came within one of the excepted classes enumerated in section 4 of the Act absolutely precluded his conviction of unlawfully possessing any drug within the purview of the statute. We do not so read the Act. In the first place, section 4 applies to the sale, dispensing and distributing of said drugs no less than to their possession. It provides: " No person shall have in his possession or under his control, or deal in, dispense, sell, deliver, distribute, prescribe, traffic in, or give away, any of said drugs." Then comes the exception. " This section does not apply, in the regular course of their business, profession, employment, occupation, or duties, to -- (a) manufacturers of drugs; (b) persons engaged in the wholesale drug trade; (c) importers or exporters of drugs; (d) registered pharmacists actually engaged as retail druggists; (e) bona fide owners of pharmacies or drug stores; (f) licensed physicians," etc., covering in all seventeen excepted classes. But none of the seventeen classes is absolutely excepted from the prohibition of section 4. It is limited to possession, sale, etc., in the regular course of their business, profession, employment, occupation, or duties. Not even a manufacturer of drugs, a wholesale druggist, an importer or exporter of drugs, or a registered pharmacist actually engaged as a retail druggist, may be lawfully possessed of opium or cocaine out of the regular course of his business, profession or occupation. The amount is not limited by the Act if obtained, held, and lawfully disposed of in the regular course of his business; but any quantity is unlawfully possessed if obtained out of the regular course of business, or if dealt in, distributed or trafficked in contrary to the Act. The phrase, " in the regular course of their business" implies lawful conduct of the business. No business can be " regular" within the meaning of the Act if carried on in violation of law.

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