People v. Day, Cr. 1343

• Decision Date: 18 April 1958
• Docket Number: Cr. 1343
• Citation: 323 P.2d 1051,159 Cal.App.2d 572
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent. v. Larry Eugene DAY, Defendant and Appellant.

Page 1051

323 P.2d 1051

159 Cal.App.2d 572

PEOPLE of the State of California, Plaintiff and Respondent. v. Larry Eugene DAY, Defendant and Appellant.

Cr. 1343.

District Court of Appeal, Fourth District, California.

April 18, 1958.

Barton C. Sheela, Jr., San Diego, for appellant.

Edmund G. Brown, Atty. Gen., Carl Boronkay, Deputy Atty. Gen., for respondent.

BARNARD, Presiding Justice.

The defendant was charged with a violation of section 11170.5 of the Health & Safety Code in that on March 21, 1957, he gave a false name and a false address in connection with the prescribing of a narcotic. A jury found him guilty as charged, his motion for a new trial was denied, and he was sentenced to prison. He has appealed from the judgment and from an order denying his motion for a new trial. The attorney who represented him at the trial was appointed by this court to represent him on this appeal.

A practicing physician in San Diego testified that the defendant came to his office on March 21 complaining of severe headache and nausea, and that he had not been able to sleep the preceding night; that the defendant said he had been taking treatments for this headache for several years and had been using pantopon; that he diagnosed this as a migraine headache and gave the defendant a prescription for 40 pantopon tablets, each containing 1/3rd of a grain; that pantopon is a derivative of opium but 'more refined'; that the defendant said his name was James C. Connor and that he lived at 2030 32nd Street in San Diego, and he wrote this name and address in the prescription; and that he made the prescription in triplicate, giving two copies to the defendant and keeping the other copy in his book. He further testified that this occurred sometime after 12:00 noon that day, or a very short time before 12:00, and that he was not positive as to the exact time.

The original prescription was introduced in evidence and it was stipulated that the name on the prescription, James C. Connor, was not the name of the defendant and that he had never lived at 2030 32nd Street. A clerk in a pharmacy testified that the defendant came in on March 21 and handed her this prescription, which she gave to the pharmacist; that she told the defendant that it would take about five minutes to fill the prescription; and that the defendant waited for it. In reply to a question as to whether she could recall the approximate time this occurred she replied 'I would say it was middle afternoon. I am not sure, but I would say it was.'

The pharmacist testified that he saw the defendant in this pharmacy on March 21; that this clerk handed him this prescription and he placed his mark on it; that he filled the prescription and handed the narcotic to the defendant, keeping the original prescription and a duplicate; and that three or four days later he identified a picture of the defendant. When asked what time it was when he delivered the narcotic to the defendant he replied 'I am not sure. I believe it was in the afternoon.' When asked if there was any way he could estimate the approximate time, he replied 'I can't tell you for sure what time of the day he was in. I don't know.'

The defendant testified that he was in San Diego on the morning of March 21 and that he left San Diego between 11:00 and 12:00 A.M. on that day; that he had never used the name or address given on this prescription; that he had never visited this doctor; that he had never been in this pharmacy; and that he did not obtain any pantopon drugs at this pharmacy on March 21 or on any other day. He also admitted two prior convictions of a felony. The owner of a motel in Gardena testified that the defendant registered at her motel on March 21; that she had ascertained from her record that he checked in at 3:00 P.M. on that day; that she wrote 3:00 P.M. on the card but had no independent recollection of seeing the defendant there at that time; and that in the normal course of business she put down the time of registration within five minutes either way. She also testified that her motel was located some 125 miles from San Diego, and that it had taken her a little bit over three hours to drive the distance that day.

The appellant contends that the court erred in refusing to allow certain cross-examination of this doctor for the purpose of developing a motive on his part to falsely identify the appellant as the person who obtained this prescription, and in refusing the appellant permission to examine and introduce into evidence the doctor's narcotic register in order to prove motive affecting that witness' credibility. It is argued that if the doctor was in the habit of negligently issuing narcotics to addicts he would have a motive to cooperate with the officers by identifying a picture shown to him by the officers as being the person to whom he had issued a narcotic prescription, rather than by identifying a person to whom he had actually issued the prescription: It is also argued that the refusal to allow him to examine and introduce into evidence the doctor's narcotic register deprived him of a fair trial, citing Powell v. Superior Court, 48 Cal.2d 704, 312 P.2d 698; People v. Riser, 47 Cal.2d 566, 305 P.2d 1.

The doctor was asked on cross-examination how many opium derivatives he had dispensed during March, 1957. This was objected to as immaterial. Out of the presence of the jury the court asked the purpose of this question. The appellant's attorney replied that he had reason to believe that this doctor would issue narcotics to anyone who said he wanted it, and would have a motive to identify the wrong person in order to save his own skin; and that he thought he was entitled to show that this doctor had issued a great number of narcotic prescriptions and that he...