People v. Wallace

PETERS, P. J.

Patricia Wallace, in a trial before the court without a jury, was found guilty of unlawful possession of narcotics in violation of section 11500 of the Health and Safety Code. From the judgment of conviction she appeals. She admits possession of the narcotics, but claims that the evidence1 shows, without contradiction, that the narcotics belonged to one Levy, who had secured them by prescription, and that they had inadvertently been left in her home by Levy, and that she was merely keeping them for him until he coxxld call for them. She xxrges that for this reason her possession of the narcotics was not illegal.

The record shows the following: On July 10, 1950, Dr. Anderson, in Berkeley, gave to one of his patients, Elious Levy, a prescription for 36 tablets of dolophine, a drug containing morphine. That same evening, or perhaps the next night, Levy and his wife visited Levy’s brother-in-law, one Morel Marshall, who lived in the Patri Hotel in San Francisco. That hotel was operated by the defendant Patricia Wallace, who leased the premises and owned the fxxrniture. She also resided at the hotel. Marshall and Wallace were friendly. The Levys visited with Marshall and Wallace for several hours. According to Levy, during the visit, and while Wallace was present, Levy gave the prescription to Marshall and asked him to have it filled at a drugstore adjoining the hotel. Marshall had the prescription filled, and delivered the bottle of tablets, 36 in number, to Levy in the presence of Wallace. Levy took two of the tablets, and set the bottle on the kitchen table. He testified that when he left that evening he forgot to take the bottle with him.

Defendant AVallace testified that she did not see the bottle of tablets on the table before Levy left, or after he left. The next day, according to her story, her 13-year-old son brought the bottle to her and told her that he had found it on the sink. Defendant then testified that she looked at the bottle, saw Levy’s name on the label and immediately telephoned to Mrs. Levy, who told her to put the pills away, and that

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when Levy, who was a Pullman porter, returned from a trip, they would come over and get the bottle. The bottle does not contain Levy’s name on the label. Moreover, it is of some significance that Mrs. Levy was not called to verify this telephone conversation.