State v. Harkness

• Decision Date: 07 September 1938
• Docket Number: 27150.
• Citation: 82 P.2d 541,196 Wash. 234
• Parties: STATE v. HARKNESS et al.
• Court: Washington Supreme Court

82 P.2d 541

196 Wash. 234

STATE v. HARKNESS et al.

No. 27150.

Supreme Court of Washington

September 7, 1938

Department 1.

Appeal from Superior Court, Kitsap County; E. D. Hodge, Judge.

Rex Harkness and Lyle Harkness were charged with presenting prescriptions for a narcotic drug to a druggist with knowledge that prescriptions were falsely made, and P. L Sanders was charged with falsely making the prescriptions for the narcotic drug, and the three defendants were charged with a conspiracy to procure narcotic drugs from druggists by the use of falsely made prescriptions. From an order of dismissal on ground of misjoinder of parties, the State appeals.

Order affirmed.

Ralph E. Purves, of Bremerton, for the State.

Frederick B. Cohen and Marion Garland, both of Bremerton, for respondents.

GERAGHTY Justice.

Rex Harkness, Lyle Harkness, and P. L. Sanders were charged, in a single information, with the violation of § 3 of chapter 47 Laws of 1923, p. 133 (Rem.Rev.Stat. § 2509-3).

In each of three counts, identical in language except as to dates, it is charged that the defendant Rex Harkness, intending to commit a crime, '* * * did, unlawfully and feloniously present to a druggist * * * a physician's prescription signed by one P. L. Sanders, a physician, for one half grain sulphate morphine and issued in the name of one O. H Anderson, with intent by means thereof to procure from said druggist a narcotic drug * * * to-wit, sulphate morphine; and the said defendant did then and there sign said certificate as O. H. Anderson and did procure from said druggist one half grain sulphate morphine; the said defendant then and there knowing said physician's prescription to have been falsely made and forged in the name of one O. H. Anderson * * *.'

Lyle Harkness was charged in three counts identical in language except as to dates and fictitious names, with similar offenses.

In six counts, identical in form except as to dates and names, it is charged that P. L. Sanders, with intent to commit a crime, '* * * did, unlawfully and feloniously falsely make a physician's prescription as set forth in Count I herein; the said defendant, P. L. Sanders, then and there knowing that the said O. H. Anderson was a fictitious person and that the said physician's prescription was to be forged and presented in the name of O. H. Anderson by the said Rex Harkness with an intent to procure narcotic drugs * * * to-wit, sulphate morphine; the said defendant, P. L. Sanders, then and there intending by means of said physician's prescription to procure from said druggist narcotic drugs * * * to-wit, sulphate morphine, contrary to the form, force and effect of the statute in such cases made and provided * * *.'

The information contained a thirteenth count, in which it is charged that the three defendants '* * * did on the dates mentioned in Counts I, II, III, IV, V and VI herein, conspire to accomplish a crime or unlawful purpose, to-wit: to procure narcotic drugs, as defined by Chapter 47, Laws of the 1933 [1923] session of the Legislature of the State of Washington, from druggists by aid of physician's prescriptions executed falsely by the said defendant, P. L. Sanders, and forged and presented by the said defendants, Rex Harkness and Lyle Harkness as set forth in Counts I, II, III, IV, and VI herein * * *.'

The defendants filed separate demurrers to the information, based upon the insufficiency of the facts charged to constitute a crime, and improper joinder. The court sustained the demurrers, and entered an order of dismissal. The state appeals.

The question on appeal is whether the information is demurrable on any of the grounds specified.

The first twelve counts of the information, that is to say, the three counts against each of the respondents Harkness and the six counts against respondent Sanders, are, substantially, in the language of the statute, and sufficiently charge the respondents severally with its violation. The pertinent provisions of Rem.Rev.Stat. § 2509-3, follow:

'It shall be unlawful for any person to sell, furnish, or dispose of, or have in his possession with intent to sell, furnish, or dispose of any narcotic drug or drugs, except upon the written and signed prescription of a physician regularly licensed to practice medicine and surgery who has complied with the regulations of, and is duly registered under the laws of the state of Washington, and the laws of the Congress of the United States. All such prescriptions shall be written with ink or indelible pencil, must be signed by the physician issuing the same, and must contain the name and address of the person for whom prescribed. * * *

'Any person violating any of the provisions of this section and any person who shall falsely make, forge or alter or knowing the same to have been falsely made, forged or altered shall present to any druggist a physician's prescription with intent by means thereof to procure from such druggist any narcotic drug as defined in this act shall be guilty of a felony * * *.' (Italics ours.)

Clearly, under the language of this section, a physician who issues a prescription in the name of a fictitious person and delivers it to a person not named, knowing and intending that the person to whom it is given will, by a fictitious endorsement, procure narcotics from a druggist, in violation of the statute, must be held to have falsely made the prescription; carrying a falsehood on its face, the prescription is falsely made.

The statute makes it an offense for any person knowing a physician's prescription to have been falsely made to present it to a druggist with intent to procure a narcotic drug. The respondents Harkness are charged in the information with having presented the prescriptions to a druggist with intent, by means thereof, to procure narcotics, knowing the prescriptions to have been falsely made. They are properly charged under the statute.

We are of the opinion that the first twelve counts of the information, that is to say, the three against each of the respondents Harkness and the six against respondent Sanders, are good as against demurrer.

Under the rule announced in State v Brunn, 145 Wash. 435, 260 P. 990, the counts charging the respondents could have been joined in a single information against them severally under Rem.Rev.Stat. § 2059, as being of the same class of crimes; and it would seem that this section also warrants the joining in one information of the counts against the respondent Sanders and the counts against the other respondents severally,...