People v. Tipton

• Decision Date: 29 March 1954
• Docket Number: Cr. 2965
• Citation: 124 Cal.App.2d 213,268 P.2d 196
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. TIPTON et al.

Page 196

268 P.2d 196

124 Cal.App.2d 213

PEOPLE v. TIPTON et al.

Cr. 2965.

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

March 29, 1954.

Sol A. Abrams, San Francisco, for appellants.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Clayton R. Janssen Jr., Deputy Atty. Gen., San Francisco, for respondents.

PETERS, Presiding Justice.

John and Jeanette Tipton were charged and convicted of four separate violations of that portion of section 11714 of the Health and Safety Code which declares that any person 'who unlawfully sells, furnishes, administers, gives, or offers * * * any narcotic to a minor, is guilty of a felony punishable by imprisonment in the state prison for not less than five years * * *.' In addition, John Tipton was convicted on a separate count of pimping, as that felony was defined in Statutes of 1921, Chap. 100, p. 96. ¹ John was sentenced to four consecutive terms of imprisonment on the four narcotic counts, it being provided that the sentence for pimping should run concurrently with one of the sentences on the narcotic charges. As to Jeanette, her sentences on counts one and three were made to run concurrently as were those on counts two and four, it being provided that the terms on counts two and four should not commence until the expiration of the terms on counts one and three. Both defendants appeal from the judgment.

The principal witness for the prosecution was Clarice Strange, aged 17, the minor to whom appellants furnished the narcotics. She testified that she lived in a named San Francisco hotel in January of 1953. There is some conflict as to how long Clarice stayed at this hotel, and as to the precise dates of her occupancy, but the evidence is undisputed that she occupied the room continuously for at least one week. She testified that she had known the Tiptons, who lived across the street from the hotel in question, before she moved to that hotel; that during all the time she lived there she was practicing prostitution, from which activity she made from $30 to $60 per day; that no one solicited for her; that during all of this period she was using heroin daily which she secured from the Tiptons who were both addicts and sellers; that she had been a heroin user for two and a half years; that she took three to six hypodermic shots of heroin every day; that Jeanette Tipton was also a prostitute; that during all of the period in question she turned over her entire earnings from the prostitution to John Tipton who returned to her three or four dollars daily with which she purchased food; that in return the Tiptons furnished her daily with all of the heroin she needed; that she secured the heroin from both the Tiptons daily in the Tiptons' apartment over a period of several weeks under this arrangement, and took her shots in their presence, they frequently also taking shots with her. She estimated that she received heroin each day that would otherwise have cost her $50. The heroin was furnished to her on more than four separate days.

No heroin was produced at the trial. Clarice, however, testified that it was heroin she received from the Tiptons. She testified, in some detail, how she administered the drug to herself, how she felt if she did not have a shot when needed, and how she felt after administering the drug. A doctor, who qualified as an expert on drug addiction, testified as to the chemical nature of heroin, its effect on individuals, and the usual method employed by addicts in self-administering the drug. Then, in response to a hypothetical question, he stated that it was his opinion from Clarice's testimony that she had been using narcotics, was an addict, and that the drug could have been heroin.

Neither appellant challenges the sufficiency of the evidence on the four narcotic charges, except in connection with the sufficiency of the evidence to prove the corpus delicti. Their basic contention is that their acts in furnishing narcotics to the minor on four consecutive days constituted but one continuing offense and not four separate offenses. Their argument is that the gist of the four narcotic charges was the contributing to the delinquency of a minor by furnishing her narcotics, and that was but one offense, continuous in nature, which acts cannot be broken up into separate crimes with separate sentences.

There is no merit to these arguments. Section 11714 of the Health and Safety Code makes it a felony to furnish narcotics to a minor. The indictment charges that on four separate days appellants furnished narcotics to Clarice, a minor. The evidence supports the charges. Each time heroin was furnished, the act defined in the section was committed and completed. Each time heroin was furnished to her it was, therefore, a complete and separate offense. It is immaterial that the act was committed each time at the same place by the same people. While no case has been called to our attention dealing with this section of the code, there are several cases so holding in analogous situations. In People v. Phillips, 76 Cal.App.2d 515, 173 P.2d 392, defendant was charged in two counts with the crime of offering a bribe to a prize fighter. The evidence was that on two separate occasions he had offered a bribe to a fighter to induce him to throw a fight. Both times the offer was rejected. Both offers related to the same fight. Conviction of two separate offenses was upheld, it being held that two offenses had been charged and proved. In People v. Rhoades, 93 Cal.App.2d 448, 209 P.2d 33, and in People v. Von Mullendorf, 110 Cal.App.2d 286, 242 P.2d 403, it was held that a physician who twice attempted to produce a miscarriage on the same...