People v. Gallagher

• Decision Date: 06 March 1959
• Docket Number: Cr. 3557
• Citation: 168 Cal.App.2d 418,336 P.2d 259
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Respondent, v. Neil D. GALLAGHER, Appellant.

Page 259

336 P.2d 259

168 Cal.App.2d 418

PEOPLE of the State of California, Respondent, v. Neil D. GALLAGHER, Appellant.

Cr. 3557.

District Court of Appeal, First District, Division 1, California.

March 6, 1959.

Arthur D. Klang, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., Thomas C. Lynch, Dist. Atty., Jack Berman, Deputy Dist. Atty., San Francisco, for respondent.

PETERS, Presiding Justice.

The defendant, a doctor, was convicted by a jury of illegal possession of a narcotic. From the judgment entered on that verdict and from the order denying his motion for a new trial, defendant appeals.

Appellant attacks the sufficiency of the evidence, and likewise contends that the court erroneously denied his motion to set aside the information on the ground that the evidence at the preliminary examination was insufficient to hold him to answer. The evidence at the preliminary and at the trial, in its essentials, was the same. It was ample to sustain the verdict and to justify the court in denying the motion.

The record shows that William Hebrank operates a pharmacy in San Francisco. The prescription room it that pharmacy is at the rear of the drug store. Hebrank keeps his narcotics in two drawers in that room. These drawers are locked at night but remain open during store hours. The pharmacy is customarily open six days a week from 10 a. m. to 9 a. m. In the morning hours and until 2 p. m. Hebrank is the only attendant in the pharmacy.

At all times here pertinent appellant, with his wife and small child, was living approximately across the street from the pharmacy in an upstairs apartment where he also had his office. Sometime in November, 1957, appellant introduced himself to Hebrank as a physician. Hebrank and the appellant became friendly, and appellant began coming to the pharmacy every morning shortly after 10 a. m. and visiting Hebrank for a half an hour to an hour and a half. Customarily Hebrank entertained the appellant in the prescription room. Occasionally Hebrank would leave the appellant alone in the prescription room while he, Hebrank, did some shopping in nearby stores.

Hebrank normally inventoried his narcotics every 30 days. On the regular inventory of November 30, 1957, he discovered that some of the narcotics were missing and unaccounted for. He reported his loss to the State Narcotics Department. That department sent Inspector Gazzola to investigate. Under Gazzola's directions Hebrank replenished his normal supply of narcotics. Thereafter, Hebrank made a daily inventory. He sold no narcotics between December 1st and December 11, 1957. Among his narcotics was a bottle containing 100 tablets of 1/2 grain Morphine Sulphate. In making his inventory on the afternoon of December 6, 1957, he discovered that there were 30 tablets missing from this bottle. Appellant had been in the pharmacy that morning and had been left alone in the prescription room while Hebrank did some shopping. This loss was reported to Gazzola. The inspector, on December 11, 1957, sprayed fluorescent powder, of a type invisible except under ultra-violet ray light, on the 70 tablets remaining in the bottle, and on the bottle itself. This he did without touching the tablets or bottle with his hands. On the morning of December 12, 1957, shortly after 10 a. m., Gazzola and Hebrank, again without touching the tablets or bottle with their hands, counted the tablets and found there were still 70 in the bottle. Then Gazzola and another officer stationed themselves across the street from the pharmacy where they could see the entrance but could not see the prescription room. Shortly thereafter the appellant made his regular morning visit and sat down in the prescription room. Hebrank then left appellant there while he went to purchase some coffee in a nearby store. He was gone from three to seven minutes. During that time appellant was alone in the pharmacy. When Hebrank returned appellant was seated in the prescription room. Hebrank then made some coffee which he and appellant shared. Then appellant left the premises.

Inspector Gazzola reentered and pharmacy and he and Hebrank, again without touching the tablets or the container with their hands, counted the half grain Morphine tablets. The count revealed that there were but 53 tablets remaining, that is, 17 had been removed since the count earlier that morning.

Gazzola and the other officer then proceeded across the street to appellant's residence. They rang the bell and the door was opened by the wife of appellant. Upon telling her that they had a personal matter to discuss with appellant, Mrs. Gallagher led the way upstairs towards appellant's apartment. When they reached the upper hall Gazzola saw appellant run from his bedroom and enter a bathroom on the other side of the hall. Gazzola and the officer tried to intercept appellant but appellant got into the bathroom and locked the door. The two officers were unable to force the door. While they were trying to do so Gazzola heard the toilet flush twice. Then the appellant unlocked the door and came out into the hall. ¹

The officers placed appellant under arrest. A cursory search of his pants pockets and a patting of his shirt pockets failed to disclose any narcotics. Then appellant was taken across the street to the pharmacy, where he was questioned by Gazzola. Appellant denied knowing anything about the missing tablets. Gazzola then tested the appellant's person and clothing with the ultra-violet ray device. The appellant's hands produced a positive reaction, that is, glowed a lemon color, tending to indicate that the appellant had come into contact with the fluorescent powder that had been sprayed on the tablets and container. A positive reaction was also obtained from inside appellant's shirt pocket; later, traces of the fluorescent powder were found in the bathroom of appellant's house on the toilet and on the floor around the base of the toilet. When Gazzola explained the fluorescent device to appellant, and what it apparently showed, appellant made no comment.

Appellant did not take the stand. His counsel, however, sought to show on the cross-examination of Gazzola that the traces of the powder might have come from the inspector's hands when he searched the appellant, but this was refuted by testimony that neither the inspector nor Hebrank had touched the tablets or the container.

One of the most seriously contested portions of the trial involved the introduction of evidence, over the vigorous objections of appellant, that in 1953 appellant had committed a similar offense in Ione, California. The prosecution was permitted to prove that in September, 1953, appellant had come into possession of narcotics under circumstances almost identical to those involved in the instant case. Appellant had been arrested in connection with that offense and admitted to the police that he had committed the charged offense, and returned to the police the narcotics involved.

On this evidence the jury found defendant guilty of the charged offense.

The evidence clearly supports the conviction. Appellant argues that while the evidence supports the inference of guilt, it also could support an inference of innocence. In reliance on the rule that circumstantical evidence must not only be consistent with guilt but inconsistent with innocence, it is argued that the verdict of guilty has deprived him of the 'presumption of innocence." The contention is, of course, unsound. The fact, if it be assumed to be a fact, that the jury could have drawn the inference of innocence from the evidence, does not render the verdict erroneous where the jury has discarded that inference, and found in favor of guilt. If the evidence supports the inference that appellant was in unlawful possession of narcotics, and it certainly does that, the fact that such evidence might support a contrary finding is not sufficient to entitle the appellant to a reversal. People v. Bassett, 68 Cal.App.2d 241, 156 P.2d 457; People v. Blinks, 158 Cal.App.2d 264, 322 P.2d 466; People v. Ross, 149 Cal.App.2d 287, 308 P.2d 37; People v. Dragoo, 121 Cal.App.2d 322, 263 P.2d 90; People v. Torres, 98 Cal.App.2d 189, 219 P.2d 480.

Appellant makes much of the fact that no narcotics were discovered in his possession. Such is not an essential fact to sustain a conviction of a violation of section 11500 of the Health and Safety Code. People v. Belli, 127 Cal.App. 269, 15 P.2d 809; People v. Blinks, 158 Cal.App.2d 264, 322 P.2d 466; People v. McDaniel, 154 Cal.App.2d 475, 316 P.2d 660; People v. Brickman, 119 Cal.App.2d 253, 259 P.2d 917; People v. Newman, 127 Cal.App.2d 430, 273 P.2d 917; People v. Noland, 61 Cal.App.2d 364, 143 P.2d 86. It is not essential that the narcotics be found on the person of the accused. People v. Sinclair, 129 Cal.App. 320, 19 P.2d 23; People v Johnston, 73 Cal.App.2d 488, 166 P.2d 633; People v. Lunbeck, 146 Cal.App.2d 539, 303 P.2d 1082. The fact of unlawful possession, as well as the other facts essential to prove a conviction under section 11500, may be proved by circumstantial evidence. People v. Batwin, 120 Cal.App.2d 825, 262 P.2d 88; People v. Robarge, 151 Cal.App.2d 660, 312 P.2d 70; People v. Rollins, 161 Cal.App.2d 560, 326 P.2d 938.

It is obvious that the circumstantial evidence here produced overwhelmingly supports the inference that appellant was in unlawful possession of a narcotic. Before he arrived at the pharmacy there were 70 Morphine tablets in the bottle. After he had been left alone in the prescription room for three to seven minutes, there were only 53 tablets in the bottle. No one else was in the pharmacy during that three to seven minutes. The fluorescent powder on his hands and clothing demonstrated, almost to a certainty, that appellant had come into contact with the tablets and the container. The fluorescent powder in and about the...