People v. Braddock

• Decision Date: 18 December 1953
• Docket Number: Cr. 5513
• Citation: People v. Braddock, 41 Cal.2d 794, 264 P.2d 521 (Cal. 1953)
• Court: California Supreme Court
• Parties: PEOPLE v. BRADDOCK.

Page 521

264 P.2d 521

41 Cal.2d 794

PEOPLE v.BRADDOCK.

Cr. 5513.

Supreme Court of California, In Bank.

Dec. 18, 1953.

Rehearing Denied Jan. 14, 1954.

Isaac Pacht, Arthur F. Larrabee and Rudolph Pacht, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., and Michael J. Clemens, Deputy Atty. Gen., for respondent.

EDMONDS, Justice.

Raymond M. Braddock was tried by the court without a jury upon an information charging him with four violations of section 11163 of the Health and Safety Code.¹He has appealed from a judgment of conviction upon each count and from an order denying his motion for a new trial.Braddock asserts that a material variance exists between the information and the proof.Another point relied upon by him is that the evidence, as a matter of law, shows the commission of the offenses as a result of entrapment.

The four counts are in substantially the same language, except for the date of the alleged offense.Each of them charges that Braddock, a licensed doctor of osteopaty, 'did willfully, unlawfully and feloniously prescribe a narcotic, to wit, methadon, to E. J. Mantler, a person not under his treatment for a pathology'.Mantler, an inspector for the Bureau of Narcotic Enforcement, was the principal witness for the People.The defendant did not testify and presented no evidence.

The record shows the flowing facts:

In the company of one Grimes, a person addicted to the use of narcotics, Mantler went to Braddock's residence and was introduced to the doctor as 'Roy Bates'.Mantler said to him, 'I was hoping you could help me out with my wife.'Braddock asked, 'What kind of medicine does your wife use?'Mantler replied, 'Well, she has used lots of different kinds in the last couple of years.'Asked if he could bring her to the doctor, Mantler stated that it would not be convenient or practical.They discussed other subjects for a few minutes, and then the doctor said, 'Oh, well, let's go inside and I'll write her one.'

The three men entered the house, where Braddock seated himself at a table and produced a prescription book.At that moment, one Thomas, known by Mantler to be a narcotic addict, appeared at the front door.Grimes left the room and engaged Thomas in conversation, and they disappeared from Mantler's view.Braddock asked Mantler for his wife's name and was given the fictitious one of 'Julia M. Bates'.'You say she used methadon?'Braddock asked.Mantler answered, 'Yes, and demerol.'Braddock said, 'I think Methadon is better.'

Told by Mantler that 'shots' were preferable to tablets, the doctor wrote a prescription for 120 cubic centimeters of methadon to Julia M. Bates at a fictitious address supplied by Mantler.'She has T. B.?'he asked.Receiving an affirmative reply, he wrote those intitials upon the prescription from.'How much do you want for the favor?' asked Mantler.Braddock replied, 'How much have you got?'Mantler told him that he had $30.Braddock said, 'I will take half of it.That will give you enough to get along on.'Mantler gave him the money and departed.

Mantler had the prescription filled, although with difficulty because of the quantity of the drug indicated.When he received the substance, he gave it to a chemist for analysis.Testifying as an expert, the chemist stated that methadon is a manufactuer's name for amidone, a narcotic enumerated in section 11001 of the Health and Safety Code, and included within the provisions of section 11163.

About 10 days later, Mantler again visited Braddock's home.After some preliminary conversation, he remarked, 'My wife is not too good.'Braddock said, 'What was it she is using, delaudid?'Mantler stated that it was methadon.The doctor said, 'That is not as bad as some stuff.'He left the room and returned with a prescription book.'Give me a run down on her again.I can't seem to remember it.'Mantler answered, 'Well, she has been using it a couple of years now.''Is she bad when she doesn't have it?' asked the doctor.'She sure is', Mantler replied.'She nearly runs me up the chimney.'

Braddock made the notation, 'T.B.' on the prescription form and asked Mantler what else was wrong with his wife.Mantler told him that she had an 'old hysterectomy.'The doctor said, 'Oh yes.How much of these are you using?'Mantler looked at Braddock and said, 'Not me, Doc. I am not using any.I have got enough trouble.'Braddock remarked, 'I never use anything but alcohol.Morphine makes me very odd.'He then stated, 'We won't have any trouble as long as you keep this far apart.'Mantler assured him that he would try to do so.In payment, the doctor accepted $10, and said, 'I ought to see this patient some time.'After further conversation, he continued, 'Give me a call some time when you are sure your wife will be home and I will drop in.I should see the patient.'

About a week later, Mantler visited the doctor's home for the third time.He entered the house and was invited to sit down.After writing a prescription to Julia M. Bates for a quantity of methadon, he said, 'You are kind of shortening up the time.'Mantler replied, 'Well, Doc, it is not holding.It doesn't last.'The doctor said, 'I don't want you to come here before ten days.'He again advised Mantler to wait ten days, and accpeted $10 for the prescription.

On his fourth visit, Mantler was accompanied by inspectors from the Bureau of Narcotic Enforcement and from the Board of Osteopathic Examiners.The other men waited outside while Mantler went in.Producing a prescription book, the doctor asked him the date and how he was getting along.Mantler answered that things were 'pretty tough' and that he was having trouble 'getting along with it'.He paid the doctor $10 after receiving the assurance that if the prescriptions were kept at least ten days apart, they would have no trouble.

As he left the house, Mantler handed the prescription to Blanchard, one of the other officers.Blanchard entered, identified himself, and asked to see Braddock's records.When he questioned Braddock as to the identity of Julia Bateshe was told that she was an old patient, who had a post-pregnancy condition and a hysterectomy.Braddock added that he had first contacted her when called to her home.Blanchard said, 'Now, as a matter of fact, Doctor, have you ever seen Julia Bates?'The doctor admitted that he had not.

Blanchard told Braddock that the person who had been obtaining prescriptions from him under the name of Julia Bates in fact was an inspector from the Bureau of Narcotic Enforcement.He asked the doctor hwy he had been writing false and fictitious prescriptions and was told, 'Well, I am in financial straights and I need the money.''Do you admit then that you have been violating the State and Federal Narcotic Laws in the sale of these narcotics?'he asked.Braddock replied, 'Certainly, you have got the evidence on me; what is the use of denying it?'Thereafter, Mantler returned to the house, identified himself to the doctor, and showed him his credentials.

Braddock's claim of a material variance is based upon an alleged conflict between the information, which chrges that he prescribed narcotics to E. J. Mantler in violation of section 11163 of the Health and Safety Code, and the evidence, which shows that the prescriptions were made out to Julia M. Bates, a fictitious person.

An information is formally sufficient if, in substance, it charges the defendant with the commission of a public offense in words 'sufficient to give the accused notice of the offense of which he is accused.'Pen.Code, § 952.To be material, a variance between the information and proof must be 'of such a substantive character as to mislead the accused in preparing his defense, or * * * likely to place him in second jeopardy for the same offense.'People v. Williams, 27 Cal.2d 220, 226, 163 P.2d 692, 695;People v. Amy, 100 Cal.App.2d 126, 127, 223 P.2d 69;People v. Moranda, 87 Cal.App.2d 703, 705, 197 P.2d 394.

In substance, the charges against Braddock are based upon transactions by which he sold narcotic prescriptions to Mantler, ostensibly for the use of another person, neither of them being under his treatment for a pathology.The true identity of the man supposed to be the husband of Julia M. Bates was made known to Braddock both by Inspector Blanchard and by Mantler himself, and Braddock was present when Mantler testified at the preliminary hearing.That testimony included in detail the circumstances surrounding the writing of the prescriptions, with the dates and places of those events and the names used, and it was sufficient to notify him of the particular circumstances of the offense charged in the information.People v. Roberts, 40 Cal.2d 438, 486, 254 P.2d 501.Furthermore, by stipulation the evidence against Braddock was presented by a transcript of the proceedings upon the preliminary hearing with only a slight amount of additional testimony.Braddock could not have been misled.

If Braddock should be tried again on a charge of violating section 11163 for any of the acts which form the bases for the present prosecution, he may show former jeopardy by evidence produced in that proceeding.'It is well settled that on a plea of double jeopardy, extrinsic evidence is admissible on the trial to identify the crime of which a defendant has been convicted.'People v. Williams, supra, 27 Cal.2d at page 226, 163 P.2d at page 695.

Braddock contends, however, that the evidence does not support the charge that he violated section 11163 of the Health and Safety Code in that the narcotics were prescribed for a fictitious person.Although the evidence shows a violation of section 11165 of that code, ² a misdemeanor, the argument continues, a violation of section 11163, which is a felony, requires that he'prescribe, administer, or furnish' the narcotic to an existing person.

It is questionable whether an accused properly may be convicted of a violation of section 11165 when the...