People v. Wallace, Cr. 2752

• Decision Date: 12 March 1952
• Docket Number: Cr. 2752
• Citation: 241 P.2d 264,109 Cal.App.2d 676
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. WALLACE.

Page 264

241 P.2d 264

109 Cal.App.2d 676

PEOPLE v. WALLACE.

Cr. 2752.

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

March 12, 1952.

Leslie C. Gillen, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., David K. Lener, Deputy Atty. Gen., for respondent.

PETERS, Presiding Justice.

Patricia Wallace, in a trial before the court without a jury, was found guilty of unlawful possession of narcotics in violation of section 11500 of the Health and Safety Code. From the judgment of conviction she appeals. She admits possession of the narcotics, but claims that the evidence shows, without contradiction, that the narcotics belonged to one Levy, who had secured them by prescription, and that they had inadvertently been left in her home by Levy, and that she was merely keeping them for him until he could call for them. She urges that for this reason her possession of the narcotics was not illegal.

The record shows the following: On July 10, 1950, Dr. Anderson, in Berkeley, gave to one of his patients, Elious Levy, a prescription for thirty-six tablets of dolophine, a drug containing morphine. That same evening, or perhaps the next night, Levy and his wife visited Levy's brother-in-law, one Morel Marshall, who lived in the Patri Hotel in San Francisco. That hotel was operated by the defendant Patricia Wallace, who leased the premises and owned the furniture. She also resided at the hotel. Marshall and Wallace were friendly. The Levys visited with Marshall and Wallace for several hours. According to Levy, during the visit, and while Wallace was present, Levy gave the prescription to Marshall and asked him to have it filled at a drugstore adjoining the hotel. Marshall had the prescription filled, and delivered the bottle of tablets, thirty-six in number, to Levy in the presence of Wallace. Levy took two of the tablets, and set the bottle on the kitchen table. He testified that when he left that evening he forgot to take the bottle with him.

Defendant Wallace testified that she did not see the bottle of tablets on the table before Levy left, or after he left. The next day, according to her story, her thirteen-year old son brought the bottle to her and told her that he had found it on the sink. Defendant then testified that she looked at the bottle, saw Levy's name on the label and immediately telephoned to Mrs. Levy, who told her to put the pills away, and that when Levy, who was a pullman porter, returned from a trip, they would come over and get the bottle. The bottle does not contain Levy's name on the label. Moreover, it is of some significance that Mrs. Levy was not called to verify this telephone conversation.

Defendant further testified that, after her telephone call to Mrs. Levy, she locked the bottle up in a jewelry box for the reason that she wanted to keep it away from her son.

The bottle of narcotics was found on July 26, 1950, when the police apparently found Marshall and others in unlawful possession of other narcotics in the hotel, and upon searching defendant's room found the bottle under Wallace's bed in the locked jewelry chest. Rinken, one of the officers, testified to finding the bottle in the locked chest in the room occupied by defendant. He testified that defendant then told the officers that the bottle was hers; that the pills were medicine used by her to pass kidney stones, and that it was called dolophine. The label on the bottle had the word 'dolophine' written on it in ink when the bottle was introduced into evidence, but it had no such word on it when it was found by the police, that word having been written on the label by the police chemist when he examined the contents of the bottle. When discovered by the police, the bottle had but twenty-seven tablets in it. Defendant also told the arresting officers, according to Rinken, that she had a prescription for the tablets which had been filled 'downstairs.'

Defendant denied this conversation almost in its entirety. She denied telling the police officer that the prescription was hers, that the bottle was hers, or that she used the medicine herself to pass kidney stones, or for any other reason. She stated that she could not have made such a statement because Levy's name was on the bottle--but, as already pointed out, it was not. She denied stating to the police, or even knowing, that the bottle contained dolophine. She denied that she had ever taken any of the pills. She admitted that she had not asked her boy if he had taken any of the pills.

As already pointed out, the bottle originally contained thirty-six tablets. Levy took two. When found by the police the bottle contained but twenty-seven tablets. Defendant could not explain this discrepancy.

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