People v. Jackson
| Decision Date | 15 August 1951 |
| Docket Number | Cr. 750 |
| Citation | 234 P.2d 766,106 Cal.App.2d 114 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE v. JACKSON. |
Thomas Whelan, San Diego, Hugh E. Macbeth, Sr. and Curtis C. Taylor, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen. and William E. James, Deputy Atty. Gen., for respondent.
Defendant, who was a physician licensed to practice medicine in the State of California, was accused of the crime of sale of narcotics, in that on or about the 6th day of July, 1950, he did wilfully, unlawfully and feloniously sell a certain narcotic, to wit, morphine. The information contained a second count in which it was alleged that the defendant was guilty of furnishing narcotic by a physician to one not under treatment for pathology, in that on or about the 6th day of July, 1950, he did wilfully, unlawfully and feloniously and not in the regular practice of his profession as a medical practitioner prescribe, administer and furnish a narcotic, to wit, morphine, to or for a person who was not at said time under his treatment for a pathology or condition other than narcotic addiction.
A jury returned a verdict of guilty as charged in the first count of the information, recommending leniency, and was unable to agree upon a verdict as to the second count. Following the denial of a motion for a new trial, the defendant was given a sentence of imprisonment for a period of six months and this appeal followed.
The first ground of appeal is that the verdict is contrary to the law. The contention is that the provisions of the Health and Safety Code of the State of California, as of July, 1950, did not contemplate the prosecution of a duly and regularly licensed physician and surgeon under the facts and circumstances presented in the case at bar.
Section 11500 of the Health and Safety Code provides as follows: This statute provides that 'no person' shall sell a narcotic except upon a written prescription. Physicians are not excluded from the definition of the word 'person' and it is apparent that all persons, including physicians, are thereby forbidden under liability of criminal prosecution to furnish or sell any narcotic except as otherwise provided in the statute.
Section 11330 of the Health and Safety Code, provides that a physician may prescribe for, furnish to, or administer narcotics to his patient when the patient is suffering from a disease, ailment, injury, or infirmities attendant upon old age, other than narcotic addiction. The physician shall prescribe, furnish or administer narcotics only when in good faith he believes the disease, ailment, injury or infirmity, requires such treatment.
Defendant argues that when a physician attends a patient it is presumed that whatever treatment he gives is given in good faith; that when a physician administers or dispenses narcotics in good faith in the treatment of a patient there can be no unlawful intention and no crime committed. Evidence was introduced by both the prosecution and defense that the defendant gave the complaining witness a hypodermic injection of morphine. Whether such act was performed in good faith was a question for the jury to determine from the evidence, including any presumption available to the defendant.
The appeal herein is from a judgment rendered on the first count of the information, which charges an unlawful sale of morphine on a specific date. The defendant denied this allegation. His testimony was that he did not furnish, prescribe, administer or sell the two tablets of morphine sold to the complaining witness and found in her possession after such sale.
The applicable provisions of the Health and Safety Code, section 11000 et seq., do not exempt a physician from prosecution for unlawful sale of narcotics and where the evidence fairly sustains the verdict of a jury, the conviction of one who is a physician must be upheld. People v. Kinsley, 118 Cal.App. 593, 601, 5 P.2d 938.
The evidence, briefly summarized, is as follows: The prosecuting witness, Norine Marie Monroe, first met the defendant during the latter part of January or the first part of February, 1950, through a colored porter, one George Brooks. She testified that at that time she bought some small tablets from the defendant at $5 each; that she was not then under treatment for any condition; that she had a sty on her eye and the defendant lanced it; that she saw the defendant on July 3, 1950, in a liquor store in San Diego, at which time and place she purchased 7 pills or tablets at $5 a tablet; that she saw the defendant many times during January of 1950 through July 3rd and that on each occasion she purchased certain pills from him at $5 a pill; that on the 4th of July her brother-in-law in San Diego found narcotics in her handbag which she had purchased from the defendant; that he called the police and she was placed under arrest; that after her arrest, she had a conversation with certain police officers concerning her purchase of narcotics and on July 6th she, in company with two officers, drove within approximately two blocks of the defendant's office; that the officers gave her $20 in the form of $5 bills with which to make a purchase from the defendant; that she entered the defendant's office and purchase 4 tables from him, two of which were given to her in a hypodermic and the other two to take out; that she paid $5 for each of these tablets; that the defendant obtained the tablets from a brown bottle in his jacket pocket; that she asked the defendant to give her a shot as she was ill and could not make it back to her hotel without some narcotics; that she told him she was having withdrawl symptoms very badly; that he put the 4 tablets on a Kleenex in front of her, took 2 of them into the other room and came back with a prepared hypodermic and gave her an injection in the hip; that during the course of her various visits to defendant she was never treated for any condition other than a sty on the eye and when she was asked if she had ever requested Dr. Jackson to treat her for a particular condition, she replied 'The only treatment I asked for was narcotics.'
A San Diego police matron testified that on July 6th she examined the prosecuting witness in the city jail about 11:15 A.M.; that she gave her a 'skin test', removed her clothing, made a thorough examination of it and of the complaining witness and that she found nothing other than the items of clothing.
W. L. Wilson, a police officer, testified that at about 11:00 o'clock A.M. on July 6th, immediately after the matron had searched the complaining witness, he and officer Keyes gave her four $5 bills; that after taking the numbers from the bills, they drove with the witness to within approximately two blocks of the defendant's office, where they let her out and instructed her to walk to and enter the defendant's office; that they followed and watched her enter; that after about 30 minutes, she came out the front door and handed officer Wilson Kleenex which contained 2 tablets. (These tablets were admitted in evidence as an exhibit for the people and were shown to contain morphine.)
The complaining witness was then placed under arrest. Officers Wilson and Keyes then entered the building and searched the defendant. In the lefthand pocket of his trousers they found a brown bottle containing 4 tablets which contained morphine. The defendant then reached into his pocket and said 'Is this what you are looking for?', and brought out four folded $5 bills; that the numbers on the bills taken from the defendant were identical with those on the bills theretofore furnished the complaining witness. Dr. Jackson stated he had received the $5 bills from the girl who was in the office a short while previously; that he did not know the girl's name; that he had given her one-fourth grain of morphine and some adrenalin by hypodermic. He was asked if he had entered this in his date book and he replied that he had not; that he did not know why; that he had given the girl narcotics because she stated she had asthma; that he had opened up the front of her clothes and gone over her chest with a stethescope. Upon being asked what kind of clothes she wore, he replied that he did not know.
The officers further testified that they searched the record books in defendant's office and that the name Norine Monroe was not found, although the search made covered a period from January 1, 1950, to and including the 6th day of July, 1950; that order forms and prescription blanks issued by the State to physicians were examined and the name Norine Monroe was not found therein; that from an examination of the doctor's record books it appeared that there were approximately 200 morphine pills unaccounted for.
The defendant testified that he first saw the complaining witness in the early part of June, 1950; that he was introduced to her by George Brooks; that she gave the name of Clarice Goodall; that she was having difficulty with her respiratory organs and was wheezing when she breathed; that he gave her adrenalin, morphine and atropine to ease her pain and enable her to sleep. He denied that he met or saw her in his liquor store on July 3, 1950. He admitted that he had examined Miss Monroe in his office on July 6th, 1950 and stated that while she was in the room, he obtained from her the information that she was staying at the Pickwick Hotel at that time and her name was Clarice Goodall; that he took a morphine tablet from a bottle, went into the next room to dissolve the...
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