People v. Rose

WHITE, J.

In an amended information appellant and one John Radcliff were jointly charged with a violation of the State Narcotic Act, for having in their possession a preparation of opium containing “more than two grains of opium to the avoirdupois ounce”. It was also alleged that prior to the commission of the substantive offense charged, appellant had suffered a prior conviction in the United States District Court for violation of the Harrison Narcotic Act, and that pursuant to judgment therein pronounced he served a term of imprisonment therefor in a federal prison.

The language in the amended information in this case to the effect that the preparation of opium contained “more than two grains of opium to the avoirdupois ounce”, being beyond and without the provisions of the State Narcotic Act, was merely surplusage and of no legal effect.

(People

v.

Handley,

100 Cal. 370 [34 Pac. 853].) The act does not permit the sale or possession of preparations containing opium in any amount, except under certain stated conditions.

After trial before the court sitting without a jury, defendant Radcliff was acquitted, while appellant was convicted of the crime charged, and the court further found for the prosecution on the issue of the prior conviction. Prom the judgment, sentence, and the order denying his motion for a new trial, appellant prosecutes this appeal.

Briefly, the facts are that on the evening of November 18, 1937, police officers arrested defendant Radcliff. While they were questioning him, appellant came into the room and was placed under arrest. A search of appellant by the officers revealed five suppositories in his right-hand leather jacket pocket. At the trial a police department chemist testified that he held one of the suppositories taken from appellant over a gas flame and smelled the odor of opium. He also testified that he was present when another city chemist took

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another of the suppositories and melted it over a gas flame in a test tube, and he 'recognized opium in the bottom of the tube. This witness, qualified as an expert, gave it as his opinion that the suppository contained more than twenty grains of opium to the avoirdupois ounce. With reference to the prior conviction, defendant took the stand in his own behalf and admitted that he had been previously convicted of violating the Harrison Narcotic Act in the federal court as charged in the amended information.