People v. Day

BARNARD, P. J.

The defendant was charged with a violation of section 11170.5 of the Health and Safety Code in that on March 21, 1957, he gave a false name and a false address in connection with the prescribing of a narcotic. A jury found him guilty as charged, his motion for a new trial was denied, and he was sentenced to prison. He has appealed from the judgment and from an order denying his motion for a new trial. The attorney who represented him at the trial was appointed by this court to represent him on this appeal.

A practicing physician in San Diego testified that the defendant came to his office on March 21 complaining of severe headache and nausea, and that he had not been able to sleep the preceding night; that the defendant said he had been taking treatments for this headache for several years and had been using pantopon; that he diagnosed this as a migraine headache and gave the defendant a prescription for 40 pantopon tablets, each containing one-third of a grain; that pantopon is a derivative of opium but “more refined”; that the defendant said his name was James C. Connor and that he lived at 2030 32d Street in San Diego, and he wrote this name and address in the prescription; and that he made the prescription in triplicate, giving two copies to the defendant and keeping the other copy in his book. He further testified that this occurred sometime after 12 noon that day, or a very short time before 12, and that he was not positive as to the exact time.

The original prescription was introduced in evidence and it was stipulated that the name on the prescription, James C.

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Connor, was not the name of the defendant and that he had never lived at 2030 32d Street. A clerk in a pharmacy testified that the defendant came in on March 21 and handed her this prescription, which she gave to the pharmacist; that she told the defendant that it would take about five' minutes to fill the prescription; and that the defendant waited for it. In reply to a question as to whether she could recall the approximate time this occurred she replied “I would say it was middle afternoon. I am not sure, but I would say it was. ’ ’

The pharmacist testified that he saw the defendant in this pharmacy on March 21; that this clerk handed him this prescription and he placed his mark on it; that he filled the prescription and handed the narcotic to the defendant, keeping the original prescription and a duplicate; and that three or four days later he identified a picture of the defendant. When asked what time it was when he delivered the narcotic to the defendant he replied “I am not sure. I believe it was in the afternoon.” When asked if there was any way he could estimate the approximate time, he replied “I can’t tell you for sure what time of the day he was in. I "don’t know.”