State v. Harkness
| Decision Date | 01 December 1939 |
| Docket Number | 27586. |
| Citation | 1 Wn.2d 530,96 P.2d 460 |
| Parties | STATE v. HARKNESS et al. |
| Court | Washington Supreme Court |
Department 2.
Rex Harkness and Lyle Harkness were convicted of illegally procuring narcotics by false physician's prescriptions and were found to be habitual criminals, and they appeal.
Judgment in the prosecution against Rex Harkness affirmed, and judgment as to Lyle Harkness reversed, in so far as the habitual criminal charge was concerned, and otherwise affirmed.
Appeal from Superior Court, Kitsap County; H. G Sutton, judge.
Frederick B. Cohen, of Bremerton, and Adam Beeler, of Seattle, for appellants.
Ralph E. Purves, of Bremerton, for respondent.
In January, 1938, defendants in the actions now Before us were by the prosecuting attorney for Kitsap county, charged in a single information, in six different counts, with illegally procuring narcotics, in violation of Rem.Rev.Stat. § 2509-3. Doctor P. L. Sanders was also charged in the same information with having illegally made the prescriptions. The counts in the first information, in so far as these defendants are concerned, were in the same language, except as to names and dates, as the language in the informations now Before us. Defendants demurred to the first information claiming that the information did not charge a crime. The demurrer was sustained by the lower court, and, the state having elected to stand on its complaint, the action was dismissed, and the state appealed. This court affirmed the judgment, on the ground of misjoinder of parties, but we specifically stated in the opinion that the information properly charged the defendants with a crime under the statute. State v. Harkness, 196 Wash. 234, 82 P.2d 541.
The prosecuting attorney then, by separate information, charged each of the defendants with a violation of Rem.Rev.Stat. § 2509-3. In count one of the amended information in case No. 13964, now Before us, Lyle Harkness was charged as follows: 'That he * * * 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 R. C. Love, 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 R. C. Love 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 R. C. Love. * * *'
Counts two and three of the information were in the same language as count one, except that the prescriptions were issued in the name of Jerry Donovan, and on different dates.
In case No. 13965, defendant Rex Harkness was charged in three counts, in the same language as that used in the counts in the Lyle Harkness information, except that in the Rex Harkness case in all three counts the prescriptions were issued in the name of Ray Douglas, and on different dates.
A demurrer was interposed to the amended information in each case, and overruled. The defendants were granted separate trials, and thereafter Lyle Harkness, after a plea of not guilty had been entered, went to trial, and on April 14, 1939, was by a jury, found guilty on counts one and three of the amended information.
Upon the return of the verdict, the prosecuting attorney immediately filed an habitual criminal charge against Lyle Harkness, by a supplemental information, using as a basis for such charge the judgment just rendered in Kitsap county, a judgment of the superior court of the state of Washington for Okanogan county, rendered June 29, 1925, wherein a person by the name of Lyle Harkness was convicted of burglary in the second degree, and a judgment rendered in the superior court for Chelan county, on March 21, 1925, wherein one Lyle Harkness was convicted of the crime of unlawfully having in his possession narcotics, with intent to sell same.
After the filing of this supplemental information, defendant was placed on trial Before the same jury on the habitual criminal charge, and thereafter, on April 14, 1939, was found guilty on this charge. Alternative motion in arrest of judgment and for new trial was made and denied, and thereafter, on April 24, 1939, judgment was entered, adjudging the defendant guilty of the substantive offense and also of the habitual criminal charge, and defendant was sentenced to life imprisonment in the state penitentiary at Walla Walla. Defendant has appealed.
Defendant Rex Harkness, after a plea of not guilty, went to trial on the amended information in case No. 13965, and thereafter was found guilty on counts one and three of the information.
Immediately upon the return of the verdict in this case, habitual criminal charges were filed against Rex Harkness, by a supplemental information, and he thereafter went on trial, and was convicted of this charge. As no error is based upon the conviction of this defendant on the habitual criminal charge, no further reference will be made thereto. Alternative motion in arrest of judgment and for new trial were made and denied, and on April 24, 1939, defendant was sentenced to the state penitentiary at Walla Walla for life. Defendant has appealed.
It was stipulated that these two appeals would be submitted on one statement of facts and one brief.
The error assigned relative to the Rex Harkness case pertains only to his conviction on the information charging him with a violation of the narcotics act.
The first assignment of error is based upon the court's refusal to sustain a demurrer to the information in each case charging a violation of the narcotics law. It is contended here, as it was contended in State v. Harkness, supra, that there is a clear distinction between the false making of an instrument and the making of a false instrument, and that the provision in Rem.Rev.Stat. § 2509-3, that '* * * 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,' applied only to a false making of an instrument, as distinguished from the making of a false instrument.
Appellant Rex Harkness admits that the evidence is sufficient to prove that he signed the name of Ray Douglas to the prescription referred to in counts one and three, and admits that these particular prescriptions were made out to him in the name of Ray Douglas.
Appellant Lyle Harkness admits that the prescription referred to in count one was made out to him in the name of R. C. Love, and was signed and endorsed by him as R. C. Love; and admits that the prescription referred to in count three was made out to Jerry Donovan, for Jerry Donovan, and that appellant signed the name of Jerry Donovan on the prescription.
Rem.Rev.Stat. § 2509-3, in so far as pertinent, provides:
The contention made herein by appellant under assignment of error No. 1 was presented in the former case of State v. Harkness, supra, and we there held the information properly charged a crime. We are satisfied with our former decision, and we are therefore of the opinion the information in each of the cases being considered herein charged a crime, and that the trial court properly overruled the demurrer in each case.
Under assignment of error No. 2, appellant Rex Harkness claims the court erred in refusing to give requested instruction No. 5, and under assignment of error No. 3, this appellant contends the court erred in refusing to give requested instruction No. 11.
Appellant Lyle Harkness, under the fourth and fifth assignments of error, contends the court erred in refusing to give requested instructions Nos. 4 and 9.
Assignment of error No. 6 is based upon the exclusion by the court of evidence to prove that Doctor P. L. Sanders was treating the appellants in the course of his professional practice, and that the narcotics were obtained for their personal use in pursuance of such treatment.
Instruction No. 5, as requested by appellant Rex Harkness, is the same as instruction No. 4 requested by appellant Lyle Harkness, and is as follows:
'I instruct you that the word 'patient' means one who applies to a physician for the alleviation of pain or disease.
'It is the duty of a physician to relieve the pain and suffering of his patient when such relief can be effected by the use of morphine in quantity proportionate to the needs of such patient.
'In this case there is a presumption that the defendant, P. L Sanders, as a physician was acting in the course of his practice as a doctor, and that he was prescribing morphine for a legitimate purpose, and Before this...
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