People v. Fong

WOOD (Fred B.), J.

Fong was convicted on two counts, one for violating section 11163 of the Health and Safety Code, unlawfully prescribing a narcotic, the other for violating section 11500 of the code, unlawful sale of a narcotic.

The sole point upon this appeal is the claim that evidence of similar offenses was erroneously admitted as a part of the People’s case in chief. This evidence was received for the limited purpose of such bearing, if any, as it might have on the question whether defendant entertained the intent to commit the offense charged in the first count (unlawfully prescribing a narcotic).

Defendant claims the element of his intent was not in issue.

He directs attention to the rule that in this type of ease the good faith of the physician in prescribing or furnishing a narcotic (see Health & Saf. Code, § 11330) is a matter of defense; i.e., the State need not, as a part of its case in chief, prove that the defendant physician did not act in good faith. (See

People

v.

Kinsley,

118 Cal.App. 593, 597-598 [5 P.2d 938].) Without such proof, says the defendant, the State makes out a sufficient case and, therefore, is precluded from introducing evidence of similar offenses “in the absence of the defendant testifying that he believed he was prescribing for a patient who needed such medication” (defendant did not take the witness stand); the “fact that defendant was a doctor did not change the character of the offenses charged”; the “State could not anticipate and negative, by proof of so-called similar offenses, the possibility that Dr. Pong might take the stand and claim the relationship of physician and patient existed between him and Gazzola,” the person for whom he prescribed; and “where a defendant . . . testifies to facts in an attempt to prove good faith and lack of criminal intent . . . such testimony may be rebutted by the State introducing evidence of similar offenses but, in the absence of these conditions, it is error to permit the State to prove similar offenses.”

There are two ready answers to this argument.

[669]

Defendant also prescribed certain nonnareotie medicines but before prescribing anything he examined Gazzola by applying the stethoscope to his chest and saying, “It appears you have a cold.” He also took a patient record card and entered Gazzola’s name and address upon it. During a later visit the doctor, before prescribing, examined Gazzola’s nostrils and said, “It appears like you still have your sinus.” These examinations were not very thorough, it would seem, yet defendant’s counsel made a good deal of them, with emphasis by repetition, while cross-examining the witness Gazzola. That evidence bore upon the intent which accompanied the act. It tended to indicate that the doctor might be acting in good faith. In this manner an issue concerning defendant's state of mind came into the case and justified the proof of similar prior offenses to negative an innocent state of mind and to prove criminal intent. That issue was potentially present all the time under defendant’s plea of “not guilty.” No additional plea upon defendant’s part was necessary. His mere failure to take the stand and, by his own testimony, to undertake the burden of proving his good faith did not remove good faith as an issue, an issue which some of the prosecution’s evidence had already brought into the ease.