People v. Meyer, Cr. 4235

CourtCalifornia Court of Appeals
Writing for the CourtAGEE; KAUFMAN, P. J., and SHOEMAKER
Citation216 Cal.App.2d 618,31 Cal.Rptr. 285
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Donald Duncan MEYER, Defendant and Appellant.
Docket NumberCr. 4235
Decision Date27 May 1963

Vincent Hallinan, Carl B. Shapiro, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Edward P. O'Brien, Derald E. Grandberg, Deputy Attys. Gen., San Francisco, for respondent.

AGEE, Justice.

Defendant, a licensed physician, was indicted and convicted on twenty-two counts, each charging a narcotic offense. He was sentenced on counts 1, 4, 5, 8, 9, 12, 13, 16, 17, 18, 20 and 22, the sentences to run concurrently. The other ten counts were dismissed by the court on its own motion, in compliance with the preclusion of double punishment for the same act. (Pen.Code § 654.)

Defendant has appealed from the judgment and from the order denying his motion for a new trial. The latter is no longer appealable except in certain circumstances not present here (Pen.Code § 1237, subd. 2; People v. Britton, 205 A.C.A. 626, 627, 22 Cal.Rptr. 921), but we may review it on the appeal from the judgment (People v. Lessard, 58 Cal.2d 447, 450, 25 Cal.Rptr. 78, 375 P.2d 46).

The counts in the indictment relate to ten prescriptions written by defendant, as to each of which he is charged in separate counts with a violation of section 11170, subdivision (2) 1 and a violation of section 11170.5 2 of the Health and Safety Code. The additional two counts (17 and 20) each charges a violation of section 11500 3 of the Health and Safety Code. Number 17 relates to the same incident upon which counts 15 and 16 are based. Number 20 is similarly related to counts 18 and 19.

The evidence as to each prescription showed a uniform pattern, that defendant had written a narcotic prescription in the name of a person who usually was or had been a patient of his, that the prescription had been filled by some pharmacy, but that the person for whom the prescription was purportedly written never received either the prescription or the prescribed narcotics.

Evidence was also produced to show that the defendant had on occasions made illicit sales of fairly large quantities of narcotics to an acknowledged user.

The prosecution's theory was that the defendant used the prescriptions as a means of procuring narcotics which were subsequently used to supply persons other than those named on the prescriptions.

Sufficiency of the Evidence

Defendant argues, as to the twenty prescription counts, that no crime was committed because each of the ten prescriptions in question bore the true name of some person and that same person's true address. Thus, defendant continues, he did not violate either section 11170, subdivision (2) (making of any false statement in a prescription) or section 11170.5 (giving of a false name or address in connection with the prescribing of a narcotic), even though the prescriptions were not in fact written for the persons for whom they purported to be written.

Understandably enough, the point has never before been made to an appellate court of this State. Under similar circumstances, the use of an actual person's name on a prescription was held to be as much of a falsification as would have been the selection of a fictitious name. (State v. Harkness, 1 Wash.2d 530, 538, 96 P.2d 460, 464.) We do not believe that it is necessary to labor the point.

Defendant also argues the insufficiency of the evidence as to the possession counts, numbered 17 and 20. Count 17 relates to the unlawful possession of 48 Dilaudid tablets which were delivered to defendant's office by the Apothecary Pharmacy on May 19, 1961. Defendant telephoned the prescription in to the pharmacy. He told the pharmacy, which was concerned about delivery because the patient lived in Pacifica, to send it to his office C.O.D. and that he would get it to her since he intended to make a house call the following day. Defendant admitted writing the prescription and that someone from the pharmacy picked it up at his office. The prescription is in evidence. The person for whom the prescription was purportedly written, Mrs. Mary Castro, testified that she had never received the prescription or the prescribed narcotics. In fact, she was not treated by defendant after May 14, 1961. On May 19, 1961, she was taken to the San Mateo County Hospital by ambulance, where she remained until September 16, 1961.

Defendant's contention is that there is no direct evidence that he personally received the drugs in question. His counsel's cross-examination of the pharmacist brought out the point as follows: 'Q. Do you know who received it in his office, was there any receipt? A. That I cannot tell you. I know it was delivered to the office and it was paid for in the office.'

However, it is well established that mere constructive possession of a narcotic constitutes a violation of the possession statute. (People v. White, 50 Cal.2d 428, 325 P.2d 985; People v. Cahill, 163 Cal.App.2d 15, 328 P.2d 995.) It is likewise true that such constructive possession can be proved by circumstantial evidence. (People v. Cahill, supra, pp. 20-21, 328 P.2d p. 999-1000; People v. Blinks, 158 Cal.App.2d 264, 267, 322 P.2d 466.)

Here, the narcotics left the pharmacy under an arrangement made by the defendant that it was to be delivered to him at his office and that he, in turn, would deliver it in person on the following day to the partient at her home in Pacifica. Defendant had dominion and control over the narcotics when it arrived at his office and it is not necessary that he personally receive it or know of its arrival. (People v. White, supra, 50 Cal.2d p. 431, 325 P.2d p. 986.)

The defendant also questions the sufficiency of the evidence as to the felonious nature of the possession. In so doing he presumably relies upon the privilege to possess narcotics which is afforded to physicians. It is true that certain privileges with respect to the possession of narcotics are afforded to physicians and others engaged in the care and treatment of the sick. However, these privileges are not absolute, and the statutes and cases carefully circumscribe the possession and use of narcotics by such persons to the purpose of the privilege (People v. Marshalk, 206 A.C.A. 433, 437, 23 Cal.Rptr. 743). When the possession of the narcotics is for a purpose not connected with the privilege, the possession is unlawful (People v. Marshalk, supra, 437, 23 Cal.Rptr. 746; People v. Silver, 176 Cal.App.2d 377, 379-380, 1 Cal.Rptr. 179).

Under the facts and circumstances as presented at the trial, virtually the only inference the jury could draw as to the nature of the possession was that it was unlawful and that the defendant had written the prescription as a means of acquiring the narcotics for his own illicit purposes. The jury was presented with instance after instance in which the defendant had written prescriptions which were later filled by various pharmacies and yet the person for whom the prescription was supposedly written received neither the prescription nor the narcotics. The jury had also received evidence of illicit sales of narcotics by the defendant to an acknowledged user. Under such facts, the jury quite properly concluded that the defendant's possession of the narcotics was an unlawful one.

Count 20 relates to the unlawful possession of 40 Dilaudid tablets covered by a prescription dated August 3, 1961, written by defendant. On said date he presented the prescription at the Day Drug Company and personally received the narcotics which it called for.

The prescription was purportedly written for a Maude Heady. On July 27, 1961, she had been removed from her hotel room on Powell Street, San Francisco, to San Francisco General Hospital. She remained there until transferred to Napa State Hospital on September 11, 1961. During the period when she was at the General Hospital, defendant was not allowed to treat her because the hospital rules provided that only physicians on its staff were authorized to treat patients confined there.

The defendant admitted knowing that this was the rule. Nevertheless, he testified that he delivered the narcotics to Mrs. Heady at the hospital. Mrs. Heady died on January 22, 1962. The jury was thus left with the admitted possession of the narcotics by the defendant, his uncorroborated explanation of what he did with them, and the reasonable inferences that could be drawn from all of the surrounding circumstances, including his course of conduct in numerous other similar instances.

We cannot say that the jury was unreasonable in drawing the inference that this was but another instance in which the defendant had used a prescription supposedly written for a patient as a means of acquiring narcotics for his own purposes. Such a possession does not come within the purpose of the privilege afforded to him as a physician and consequently it was an unlawful possession. (People v. Marshalk, supra, 206 A.C.A. 437, 23 Cal.Rptr. 746.)


(a) Credibility of narcotics user as a witness. One Harry Chapman was called by the prosecution as its witness. He admitted being a user of narcotics, giving as an excuse that he had injured a leg in an accident. He admitted taking a narcotic on the morning of the day he testified.

The court refused to give the following instruction proposed by defendant 'You are instructed that the inordinate use of a narcotic drug tends to create an irrestible [sic] craving and forms a habit for its continued use until one becomes an addict, and he respects no convention or obligation and will lie, steal, or use any other base means to gratify his passion for the drugs, being lost to all considerations of duty and social position.' (Emphasis ours.)

The factual situation contemplated by this requested instruction refers to the veracity of an addict when seeking 'to gratify his passion for the drugs.' There is no...

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