People v. Bigelow

HOUSER, J.

Defendant was convicted on an information which charged him with the offense of violating the State Poison Act (Stats. 1907, p. 124, as variously amended), a felony. At the conclusion of the trial, under the provisions of section 969a of the Penal Code, added by Stats. 1927, p. 1064, the information against defendant was amended so that in addition to the charge contained in the original information he was charged with a “previous con

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viction,” which latter fact was admitted by defendant. He appeals from the judgment and from an order denying his motion for a new trial.

The gist of the offense alleged to have been committed by defendant was the unlawful possession by him of certain morphine and heroin. From the record it appears that when arrested defendant had a considerable quantity of each of the drugs on his person. Although the defense consisted of an attempt to show that at the time of his arrest defendant was lawfully acting in conjunction with federal officers for the purpose of entrapping and causing the arrest and conviction of certain persons suspected of being unlawful dealers in drugs, on cross-examination defendant admitted that the morphine and heroin in his possession were purchased by him and intended to be used by him personally. It is therefore clear that appellant’s contention that the evidence did not support the verdict cannot be sustained.

Appellant also urges the point that the trial court erred in imposing sentence upon defendant as for one who theretofore had been convicted of a felony.

By sections 666, 667, and 668 of the Penal Code, in substance it is provided that one who has been convicted of a former offense, which, if committed within this state, would be punishable by imprisonment in the state prison, is punishable for any subsequent crime committed by him within this state by a punishment more severe than though theretofore he had not suffered such prior conviction. As hereinbefore stated, defendant admitted his former conviction of a felony, to wit, under the so-called Harrison Narcotic Act, for which he served a term of eighteen months’ imprisonment in the Leavenworth Penitentiary, at Leavenworth, state of Kansas. The penalty for violation of the federal statute (sec. 5460, Barnes’ Fed. Code, 1919 [26 U. S. C. A., sec. 705]), is “not more than five years” imprisonment; and by section 10038 of the same code [18 U. S. C. A., sec. 541] it is provided in effect that all offenses which may be punishable by imprisonment for a term exceeding one year shall be deemed felonies. It would follow that so far as the federal statutes are concerned, defendant was convicted of a felony. While the so-called State Poison Act (Stats. 1907, p. 124, as variously amended) is not the