People v. Nunn
| Decision Date | 08 May 1956 |
| Docket Number | Cr. 5748 |
| Citation | 296 P.2d 813,46 Cal.2d 460 |
| Court | California Supreme Court |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Leslie Robert NUNN, Defendant and Appellant. |
Morris Lavine, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for respondent.
After trial before a jury defendant, an osteopathic physician, was convicted on four counts of prescribing narcotics for a person not under his treatment for a pathology, in violation of section 11163 of the Health and Safety Code. 1
He was also convicted of one count of prescribing a narcotic for a person 'who represented himself to be an addict,' in violation of section 11164 of the same code. 2
He appeals from the judgment and order denying his motion for a new trial.
About 3 p. m. on February 3, 1954, pursuant to instructions from his superior officer, who directed him to use the name 'Joe Dillon,' State Narcotics Inspector Clarence A. Shaw went to the office of defendant, who was an osteopathic physician and surgeon licensed to practice in the State of California. Inspector Shaw entered the waiting room. Shortly thereafter defendant came from his private office, whereupon Inspector Shaw said 'I am Dillon,' and defendant asked, 'Are you the one Walter sent?' The inspector said he was.
The inspector and defendant went into the doctor's private office where defendant asked the inspector his first name, to which he replied that it was 'Joe.' Defendant asked him his address and was told that it was '2903 Rodeo Road, Los Angeles.' The doctor entered this information on his patient's history card, together with the inspector's age, sex and race. Defendant then handed the card, which had no writing on it other than that heretofore mentioned, to the inspector, requesting him to sign it on the line where he had placed an 'x.' Defendant asked the inspector what he was using, to which he replied, 'I am using H,' which in the vernacular means heroin. Defendant said 'I cannot write a prescription for heroin, but I can write for some legitimate drug like morphine or dilaudid.' The inspector said that would be all right.
Defendant then wrote and signed a narcotics prescription calling for 60 tablets of 1/16 grain dilaudid to be taken one or two every four hours as needed. Defendant handed the prescription to the inspector and charged him $20.
On the patient's history card which was received in evidence there had been filled in and below the space provided for 'Diagnosis.'
On February 11, 1954, at about 2 p. m., Inspector Shaw went to defendant's home at 99 Las Flores Canyon Road, Malibu. Defendant was fixing the mail box on his property by the main road. Inspector Shaw said to defendant 'Hello,' and defendant asked him if he had a pen. The inspector replied that he did not, and defendant said, 'My prescription books are in the car, but I will have to get my pen.'
They both went in separate cars to the house, which was a short distance from the mail box. At the house defendant wrote and signed a prescription in a prescription book. Defendant asked for the inspector's address again, and the inspector said it was 2903 Rodeo Road. Defendant asked him if 80 tablets would hold him for a week, to which the inspector replied that it would. The inspector told defendant that he liked that very mcuh, and asked him if he could come there again the next week. Defendant replied that it would be all right.
Defendant gave the prescription, which called for 80 1/16th grain tablets of dilaudid, to the inspector, who paid $50 for it.
On February 18, 1954, at about noon, Mr. Shaw drove to defendant's home in Malibu. Defendant answered the inspector's knock at the door and they both walked out to the car, where defendant asked Mr. Shaw if 85 tablets would hold him. The inspector said that it would and that he would be out of town the next week so he wanted to go to defendant's office on the 24th of February. Defendant said that would be all right.
Defendant then wrote and signed a prescription for 85 tablets of 1/16th grain dilaudid and gave it to the inspector, who paid him $40 for it.
On February 24, 1954, Mr. Shaw went to defendant's office in West Los Angeles about noon. There the doctor started to write a prescription and asked him if his address was 2903 Rodeo Road. The inspector said that it was, and the defendant said that as soon as they got the physical examination out of the way he could write a prescription for more than 100 tablets. This was the only time in the various interviews that there was any mention of the inspector's physical condition.
He was then given the prescription, which called for 85 1/16th grain dilaudid tablets, and he paid defendant $40 for it.
Defendant never made any physical examination of Inspector Shaw nor did the inspector ever tell defendant that he had any physical ailment other than that he was using heroin. He never at any time told defendant that he suffered from migraine headaches or any physical ailment, nor was he during this period confined in any medical institution of the state, county or city, and he was not under treatment in any institution for any ailment or for narcotic addiction. He in fact did not use narcotics.
Defendant relies for reversal of the judgment upon these grounds:
First: That the evidence was insufficient to support the verdicts.
This contention is devoid of merit. From the facts set forth above, the jury was fully justified in believing that defendant had on four different occasions violated section 11163 of the Health and Safety Code by prescribing a narcotic to or for a person not under treatment for a pathology or condition other than narcotic addiction. (Cf. People v. Whitlow, 113 Cal.App.2d 804, 807(6), 249 P.2d 35; Davis v. State Board of Medical Examiners, 108 Cal.App.2d 346, 352, 239 P.2d 78.) Also that defendant had violated the provisions of section 11164 of the Health and Safety Code in that he had prescribed a narcotic for a person representing himself as a narcotic user. (Cf. Davis v. State Board of Medical Examiners, 108 Cal.App.2d 346, 350 et seq., 239 P.2d 78.)
Defendant asked Inspector Shaw 'What are you using?' and the inspector said 'I am using H', which in the vernacular means heroin. Defendant clearly understood that it meant heroin, which is a contraband drug, because he answered 'I cannot write a prescription for heroin but I can write for some legitimate drug like morphine or dilaudid.' He then wrote a prescription for dilaudid and gave it to the inspector. The conclusion is inescapable that Inspector Shaw represented himself to be an addict, that defendant believed he was an addict and prescribed a narcotic for him in a manner not permitted by law.
Second: That the court committed prejudicial error in the admission of evidence.
Defendant contends that Inspector Blanchard was improperly permitted to give his opinion that most narcotic addicts are caused by criminal association and not by the medical profession, because it was rebuttal of a collateral matter brought out on cross-examination by the proscecution and was immaterial to the issues of the trial.
This contention is untenable. Defendant on direct examination testified that he believed on February 3, 11, 18 and 24, 1954, that 'Dillon' was suffering from a migraine headache for which he had previously taken heroin and might be an addict, and that he prescribed the narcotic in the belief that he was properly treating Dillon for a pathology by relieving his pain.
The People were justified in believing it would be contended, defendant was acting reasonably and in the ordinary practice of his profession in prescribing the narcotic in the amounts that he did, since he had no reason to know or believe that such pathology did not exist but had reason to believe that it did.
It was therefore appropriate to ask defendant concerning the reasonableness of his conduct and to bring out in connection with such reasonableness that defendant believed it was quite possible that a person using narcotics for the relief of a pain would become addicted to the narcotic. Also that he believed the majority of narcotic addicts were produced that way. The deduction could then be made by the jury that most narcotic addicts suffered from pain for which they had first taken the narcotics to which they became addicted, and that it was more likely a person who was addicted would suffer from a painful pathology. This would support defendant's position that he believed that 'Dillon' was suffering from a painful pathology.
This deduction could reasonably be controverted by showing that it was not true that most addicts are created by the medical profession through the use of narcotics to relieve pain.
To forestall such a deduction and not to impeach defendant, the People properly presented the opinion of Inspector Blanchard on the subject.
The evidence disclosed that Inspector Blanchard had a knowledge of the causes of narcotic addiction, gained through experience in interviewing addicts and study, not possessed by the average man. He thus qualified as an expert and as such his opinion was properly received. (People v. Ernst, 121 Cal.App.2d 287, at page 292, 263 P.2d 114; People v. Horowitz, 70, Cal.App.2d 675, 689(13), 161 P.2d 833.)
Third: That section 11163 of the Health and Safety Code is unconstitutional because the term 'except in the regular practice of his profession' is too vague, indefinite and uncertain to give notice of what constitutes the act sought to be prohibited.
This proposition is devoid of merit. To comply with the constitutional requirement of due process of law, the crime for which defendant is being prosecuted must be clearly defined, but it is only necessary that the words used in the statute be well enough known to enable those...
To continue reading
Request your trial
-
People v. Privitera
...the delivery of health services. (Barsky v. Board of Regents, 347 U.S. 442, 449, 74 S.Ct. 650, 654, 98 L.Ed. 829; People v. Nunn, 46 Cal.2d 460, 469, 296 P.2d 813.) This broad premise authorizes the invasion of the doctor-patient zone of privacy by the state to prohibit the doctor prescribi......
-
People v. Williams
...that a person is under the influence of a narcotic requires expert qualifications on the part of the witness"].) People v. Nunn (1956) 46 Cal.2d 460, 466-467, 296 P.2d 813, on which defendant relies is not contrary. In that case we held that the court properly admitted opinion testimony of ......
-
People v. Privitera, Cr. 8323
...of health services. (Barsky v. Board of Regents of University, 347 U.S. 442, 449, 74 S.Ct. 650, 654, 98 L.Ed. 829; People v. Nunn, 46 Cal.2d 460, 469, 296 P.2d 813.) This broad premise authorizes the invasion of the doctor-patient zone of privacy by the state to prohibit the doctor prescrib......
-
People v. Benford
...the intent to commit the crime originated in the mind of defendant or in the mind of the entrapping officer (People v. Nunn (1956), 46 Cal.2d 460, 471(17), 296 P.2d 813; People v. Terry (1955), supra, 44 Cal.2d 371, 372(2), 282 P.2d 19; People v. Jackson (1954), 42 Cal.2d 540, 547(3, 4), 26......