People v. Jack

• Decision Date: 06 April 1965
• Docket Number: Cr. 4324
• Citation: 233 Cal.App.2d 446,43 Cal.Rptr. 566
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Wallace Lee JACK, Jr., Defendant and Appellant.

Page 566

43 Cal.Rptr. 566

233 Cal.App.2d 446

PEOPLE of the State of California, Plaintiff and Respondent, v. Wallace Lee JACK, Jr., Defendant and Appellant.

Cr. 4324.

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

April 6, 1965.

Ian G. Allen, San Francisco (under appointment of the District Court of Appeal), for appellant.

Stanley Mosk, Atty. Gen., Derald E. Granberg, John F. Kraetzer, Deputy Attys. Gen., San Francisco, for respondent.

SULLIVAN, Presiding Justice.

A jury found defendant guilty of forging a prescription for a dangerous drug. (Bus. & Prof.Code § 4237.) ¹ He appeals from the judgment of conviction.

On June 4, 1962, at about 11:45 a. m. Angelo J. Schenone, a pharmacist employed at the Four Corners Pharmacy in Concord, received a telephone call from a person identifying himself as Dr. Bagnall in Richmond. The caller said that he was telephoning in a prescription of 50 capsules of dexedrine for one Adrian Ryan.

Schenone wrote the prescription on a piece of paper captioned 'Telephoned Prescription' as the doctor was giving it to him over the telephone. This paper, which was received in evidence without objection, thus contained the name and quantity of the medication, the directions for taking it, the doctor's name, address and telephone number, and the name and address of Adrian Ryan for whom the drug was prescribed. After the druggist received the telephone call, he was suspicious of the prescription and telephoned Dr. Bagnall to confirm it. The latter tod Schenone that he had not telephoned the prescription to the pharmacy. Schenone thereupon telephoned the sheriff's office.

At about noon on the same day, defendant entered the pharmacy and browsed around. He at first declined Schenone's offer of assistance and went over to a watch display counter. When the druggist again approached him, defendant selected a watch and at the same time told Schenone that he was there to pick up a prescription for Adrian Ryan.

Although Schenone had already prepared the prescription, in order to delay defendant until a sheriff's officer arrived, he told defendant that it was not ready. He asked defendant for Ryan's street address and was given the same address received during the previous telephone call. Hs spent further time counting and recounting the capsules and finally brought the prescription and watch to defendant at the cash register.

At this time Officer Sang of the Contra Costa Sheriff's Office arrived and spoke to another employee in the store who in turn informed Schenone that 'the gentleman from the Sheriff's office' was there. Thereupon, defendant, who had already taken out his wallet and was about to pay for the merchandise, stated that he did not have enough money and that he would have to get some from his wife who was in the car. Defendant then left the store followed by Officer Sang

Defendant walked over to and entered an automobile parked in frond of the drug store. There was no one else in the car. Sang then identified himself and requested defendant to return to the drug store for questioning. The two men, along with Schenone, went to a room behind the prescription department where Officer Sang asked defendant to explain the prescription and for an identification. Defendant produced his driver's license. Upon inquiry defendant denied making the previous telephone call. At one point during this conversation defendant asked Schenone if the latter had 'to press this charge on me.'

Sang then arrested defendant and took him to the county jail. During this trip defendant stated that he had been previously convicted of a similar charge and was then on probation, and asked Sang not to call his probation officer.

The prosecution called Dr. Bagnall who testified that he had never telephoned the prescription in question nor authorized anyone to do so and that he had no patient by the name of Adrian Ryan. In addition the prosecution introduced evidence, which we need not set forth in detail, to the effect that on two prior occasions defendant had telephoned in to drug stores prescriptions for dangerous drugs which were purportedly from doctors for their alleged patients.

Defendant took the stand in his own behalf, denying that he telephoned in the prescription here involved and claiming that he intended to purchase only a watch and some razor blades. In substance he contended that it was Schenone and not he who mentioned the medicine and that he left because he thought Schenone was trying to force him to buy more than he ordered. According to defendant, he made the remarks about getting more money from his wife in the car only as an excuse to avoid sales pressure and get out of the store. Defendant, however, admitted his commission of similar acts on previous occasions, blaming them on domestic problems, work and scholastic pressure.

At the conclusion of the case in defense and outside the presence of the jury ² defendant made a motion for a directed verdict of acquittal or in the alternative for a dismissal of the information on the ground that the evidence failed to establish a forgery of the prescription within the meaning of section 4237. After an extensive argument, the motion was denied.

Defendant contends on appeal (1) that the court erred in denying the above motion since a prescription cannot be forged within the meaning of section 4237 merely by making a telephone call; (2) that such a construction of the statute would amount to a denial of due process; (3) that the court committed prejudicial error in giving an instruction on defendant's flight; and (4) that the admission in evidence of certain incriminating statements of defendant was in violation of the exclusionary rule announced in People v. Dorado (1965) 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361, and therefore requires a reversal of the judgment.

Section 4237 provides: 'Every person who forges or increases the quantity of dangerous drugs in any prescription or who issues a prescription bearing a forged or fictitious signature for any dangerous drug as defined herein, or who obtains any dangerous drug by any forged, fictitious, or altered prescription, or who has in possession any dangerous drug secured by such forged, Fictitious, or altered prescription, shall for the first offense be punished by a fine of not less than one hundred dollars ($100) and not more than five hundred dollars ($500), and for each subsequent offense shall be imprisoned in the county jail for not less than six months nor more than one year, or in the state prison for not more than six years.'

The only provisions of the statute here involved are those prohibiting forgery of a prescription. While the information charged that defendant did 'forge or increase the quantity of dangerous drugs in a prescription,' the record makes clear ³ and the parties are in agreement that the case does not involve the increasing of the quantity in a prescription. Defendant's conviction must therefore be upheld, if at all, on the grounds that he forged a prescription. There is no issue as to the dangerous character of the drug. ⁴

While cases and statutes throughout American jurisdictions abound in definitions (see 37 C.J.S. Forgery § 1 pp. 31-33), generally speaking forgery is the false making or material alteration of a writing with intent to defraud. (37 C.J.S. Forgery § 1 p. 31; 23 Am.Jur. pp. 676-677; 1 Witkin, Cal.Crimes, p. 445; 2 Wharton's Criminal Law and Procedure 396; Perkins on Criminal Law pp. 290-292.) In California, 'forgery consists either in the false making or alteration of a document without authority or the uttering (making use) of such a document with the intent to defraud.' (People v. McKenna (1938) 11 Cal.2d 327, 332, 7. P.2d 1065, 1068; People v. Searcy (1962) 199 Cal.App.2d 740, 745, 18 Cal.Rptr. 779, 90 A.L.R.2d 814; People v. Hawkins (1961) 196 Cal.App.2d 832, 837, 17 Cal.Rptr. 66; Pen.Code, § 470.) In the case before us defendant contends, as we have already said, that the prescription could not be forged merely by talking on the telephone, thus arguing in effect that no writing existed which was the subject of the forgery. The People on the other hand maintain that the subject of the forgery was Schenone's written record of the prescription telephoned in, which record is within the meaning of section 4237.

Section 4215 which is found in Article 8 (Dangerous Drugs) of Chapter 9 (Pharmacy) of Division II (Healing Arts) of the Business and Professions Code provides: "Prescription' means an order given individually for the person for whom prescribed, directly from the prescriber to the furnisher or indirectly by means of an order signed by the prescriber and shall bear the name and address of the prescriber, his license classification, the name and address of patient, name and quantity of drug or drugs prescribed; directions for use and the date of issue.' ⁵

The statute thus delineates two general types of orders constituting prescriptions: one directly from the prescriber to the furnisher; the other indirectly by means of an order signed by the prescriber. Experience tells us that the first category embraces, though perhaps not exclusively, situations where the doctor or other authorized prescriber telephones the pharmacist and the second category embraces the more frequent and common situations where the doctor writes out the prescription and hands it to the patient who takes it to the pharmacy to be filled. In the instant case there was no written prescription signed by the prescriber and the alleged prescription purported to be a direct order from the prescriber to the furnisher.

Section 4227 provides in pertinent part that 'No person shall furnish any dangerous drug * * * except upon the prescription of a physician, dentist, podiatrist or veterinarian.' Section 4331 provides in pertinent part that 'All prescriptions filled shall be kept on file and open for inspection by duly constituted authorities for a...