People v. Jackson
| Decision Date | 30 April 1963 |
| Docket Number | Cr. 7267 |
| Parties | , 381 P.2d 1 The PEOPLE, Plaintiff and Respondent, v. William JACKSON, Defendant and Appellant. |
| Court | California Supreme Court |
Donald B. McCaw, San Francisco, under appointment by the Supreme Court, and McCaw & Barnum, San Francisco, for defendant and appellant.
Stanley Mosk, Atty. Gen., John S. McInerny and Edward P. O'Brien, Deputy Attys. Gen., for plaintiff and respondent.
Defendant was convicted by a jury of offering to sell narcotics in violation of section 11501 of the Health and Safety Code. Defendant appeals from the judgment of conviction and from the order denying his motion for a new trial. 1
The evidence shows that defendant offered to sell heroin to Officer Lawrence, an undercover narcotics agent, that Officer Lawrence gave defendant $20, and that defendant did not deliver heroin or anything else.
Defendant contends that section 11501 does not encompass an offer to sell a narcotic when nothing is delivered. It is settled, however, that delivery is not an essential element of the offense of offering to sell a narcotic. (People v. Brown, 55 Cal.2d 64, 68, 9 Cal.Rptr. 816, 357 P.2d 1072; People v. Shepherd, 200 Cal.App.2d 306, 311, 19 Cal.Rptr. 234; People v. Blake, 179 Cal.App.2d 246, 253-254, 3 Cal.Rptr. 749.)
Defendant also contends that the trial court erred in giving the following instruction on specific intent:
This instruction is erroneous. It states that the only intent required is the intent to make an offer and that an intent to make a sale is not necessary. In People v. Brown, 55 Cal.2d 64, 68, 9 Cal.Rptr. 816, 818, 357 P.2d 1072, 1073, we held that 'a specific intent to sell a narcotic is an essential element of the crime of offering to make such a sale under section 11501.' Persons who offer to sell narcotics with no intention of performing are not engaged in narcotics traffic. Their behavior is not materially different from that of other 'bunco' offenders and is not subject to the severe penalties imposed by section 11501. (Compare Pen.Code, §§ 532, 490.) People v. Shepherd, 200 Cal.App.2d 306, 19 Cal.Rptr. 234, and People v. Blake, 179 Cal.App.2d 246, 3 Cal.Rptr. 749, are disapproved insofar as they approve instructions inconsistent with this opinion.
The only evidence at the trial was the testimony of Officer Lawrence. He testified that defendant took the $20 and left the bar where they had met, ostensibly to go across the street and 'get the stuff.' Defendant returned in ten minutes and said that he had made contact. He left again, and when he had not returned after an hour, Officer Lawrence set out to find him. When he found defendant across the street from the bar, defendant said he did not know Officer Lawrence and walked away. When Officer Lawrence followed and attempted to talk to him, defendant cursed the officer, went into a restaurant and emerged a few minutes later brandishing a 14-inch butcher knife. Defendant then walked away, and Officer Lawrence did not attempt to follow him. The jury could reasonably couclude from this evidence that defendant's offer to sell narcotics was made without the intent to perform. The error in the instruction was therefore prejudicial.
The judgment and the order denying motion for new trial are reversed.
The majority concede that 'The evidence shows that defendant offered to sell heroin to Officer Lawrence' and that 'delivery is not an essential element of the offense of offering to sell a narcotic.' Nevertheless, the majority reverse the judgment on the ground that it was error to give the following instruction:
The substance of the quoted instruction, so far as I am informed, had not been questioned by an appellate court or doubted by a trial judge (since 'offering' was made a crime in 1909) until the dictum by a majority of this court (in affirming the judgment of conviction) in People v. Brown (1960) 55 Cal.2d 64, 66-68, 9 Cal.Rptr. 816, 357 P.2d 1072. 1 As appears in the margin the Brown majority referred to a report of a legislative subcommittee (made in 1953) stating the view that as to an 'individual who agrees to sell, furnish * * * any narcotic, and then delivers some other * * * material * * * nothing can be done to that person, except to charge (him) with 'bunco. " It will be remembered that the forerunner of the statute (§ 11501, Health & Saf. Code) allegedly violated by Brown and by the defendant at bench was enacted in 1909 (Stats.1909, ch. 279, § 4). As I pointed out in my limited concurring opinion in Brown (p. 75 of 55 Cal.2d, p. 823 of 9 Cal.Rptr., p. 1079 of 357 P.2d), and as bears emphasis now, it does not appear that the 1953 opinion of a legislative subcommittee should be considered as informative or persuasive as to the intent of the Legislature in 1909 when it amended the Poison Act to make it unlawful 'to offer to sell, furnish or give away' narcotics except under certain conditions.
The language used by the Legislature is inclusive of the act and intent defined by the instruction which was given in the case at bench; there is nothing in the language of the statute which requires the State to not only prove that the defendant offered to sell a narcotic but (as the majority now require) to go farther and prove that the defendant beyond all reasonable doubt was an honest and ethical dealer in contraband narcotics who dutifully intended to deliver full measure of standard quality.
As was said by the District Court of Appeal in People v. Blake (1960) 179 Cal.App.2d 246, 251, 3 Cal.Rptr. 749, 'The statute indicates that the possession or sale of a narcotic is a separate and distinct offense from an offer to sell or furnish narcotics. It is equally clear from the above that the Legislature intended to place its condemnation upon each distinct, separate part of every transaction coming within the mischiefs intended to be reached and remedied. (Cf. Burton v. United States, 202 U.S. 344, 377 (26 S.Ct. 688, 50 L.Ed. 1057).) '* * * Anything which gives sustenance, solace, comfort or encouragement in the selling of narcotics or in the agreeing to sell narcotics, can be condemned, and properly so, by the Legislature * * *' People v. Shepard, 169 Cal.App.2d 283, 288 (337 P.2d 214).)
'Appellant's argument is that section 11500 of the Health and Safety Code insofar as it relates to the crime of unlawfully offering to sell narcotics is unconstitutional because the statute is void for vagueness. As pointed out in Lorenson v. Superior Court, 35 Cal.2d 49, 60 (216 P.2d 859), in order for a statute to comply with constitutional requirements, '* * * '* * * it is not necessary that it furnish detailed plans and specifications of the acts or conduct prohibited.' (People v. Smith, 36 Cal.App.2d Supp. 748, 752 (92 P.2d 1039).) * * *
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