State v. Sutton, 39727
| Decision Date | 12 November 1965 |
| Docket Number | No. 39727,39727 |
| Citation | 138 N.W.2d 46,272 Minn. 399 |
| Parties | STATE of Minnesota, Respondent, v. Wallace W. SUTTON, Appellant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. Testimony identifying an accused charged with a crime need not be positive and certain, and any uncertainty and indefiniteness affect its weight rather than its admissibility.
2. In a prosecution for uttering a forged prescription for a narcotic drug, evidence identifying defendant as the person who committed the offense examined and held sufficient to sustain the conviction.
Robert W. Beedle, St. Paul, for appellant.
Robert W. Mattson, Atty. Gen., St. Paul, William B. Randall, County Atty., Henry W. Pickett, Jr., Asst. County Atty., St. Paul, for respondent.
Defendant, aged 20, was convicted by a jury of uttering a forged prescription for a narcotic drug. He rests his appeal from the judgment solely on the claim that the evidence was insufficient to identify him as the person who committed the offense charged.
The information charged defendant with uttering a forged prescription for a narcotic drug to Abe Orenstein, a registered pharmacist, on January 13, 1964, in violation of Minn.St. 618.18 of the Uniform Narcotic Drug Act.
There is no dispute in the record that the offense charged took place in the afternoon of January 13, 1964, at the Snyder Drug Store, 409 Robert Street, St. Paul, Minnesota, and that a prescription introduced in evidence bearing that date for 4 milligrams of dilaudid, an opium derivative, containing a fictitious name and address in St. Paul and purportedly signed by a Minneapolis physician was a forgery. Further, that a young man, seeking to have the prescription filled for his mother, presented the forged prescription to Mr. Orenstein in the presence of Mrs. Ruby Kaplan, also on duty as a pharmacist at the store. The disputed issue raised by the testimony was whether defendant is the person who committed the offense.
Mr. Orenstein testified that he became suspicious when he saw the prescription was by a Minneapolis doctor. He inquired 'why a Saint Paul patient would want to go way over to Minneapolis to get a Dilaudid prescription,' to which the young man replied that his 'mother was a patient of this doctor for many years.' On the pretense of filling the prescription, Mr. Orenstein ascertained from the telephone directory that the name and address were fictitious. While he was thus engaged, the person disappeared from the store. Mr. Orenstein stated that he could not make a 'definite, positive identification' but that defendant 'very much' resembled the person presenting it. He similarly identified defendant both at the police lineup and at the preliminary hearing.
Mrs. Kaplan also expressed the opinion that the defendant 'resembles the person that brought in the prescription.' The state called three other pharmacists employed by three different drugstores in the downtown St. Paul area who gave identification testimony. One identified defendant both at the police lineup and at trial as the person who presented a dilaudid prescription to him on the afternoon of the same day as the offense charged. He testified, Another had a prescription, very similar to the one forming the basis for the charge and also received in evidence, presented to him on January 9, 1964. He testified that, while he could not positively identify the person, defendant 'resembles him very much.' The third pharmacist was asked to fill a prescription on January 16, 1964, for the same quantity of dilaudid and purportedly signed by the same Minneapolis doctor. He identified the defendant, and on cross-examination stated that 'he resembles him quite a deal,' but conceded that he could not...
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