People v. Brown

THOMPSON (IRA F.), J.

The defendant was charged by an information with the possession of a preparation of morphine containing more than one-fourth grain of morphine to the avoirdupois ounce, and by a second count with the forgery of a prescription by which the preparation was obtained. He was convicted under both counts and sentenced as required by law. He then made a motion to annul, vacate and set aside the judgment, which motion was denied. He prosecutes this appeal from the order denying his motion.

The contentions made by the appellant here are the same as those advanced in support of his motion and may be stated as follows:

(1) A prescription for a narcotic drug is not the subject of forgery—hence count 2 of the information does not charge a public offense.

(2) Count 2 fails to allege an intent to defraud and hence it fails to allege an offense.

(3) Count 1 must fall because the instrument was not and could not have been forged (for reasons assigned above).

(4) The portion of the Poison Law which purports to make it a crime to forge or alter a prescription is unconstitutional because not embraced by the title of the act.

It is immediately apparent that the first three arguments may, 'for the purpose of our consideration, be grouped together. A portion of section 7 of “An act to regulate the sale and use of poisons in the state of California and providing a penalty for the violation thereof” (DBering’s Con-sol. Supp. 1925-27 to Codes and General Laws, p. 1722, Act 5994) reads as follows: “Any person who shall forge or alter any prescription for any narcotic drugs specified in section 8 of this act or who obtains any such drugs by any forged or altered prescription or who has in possession any such drugs secured by such forged or altered prescription shall upon conviction for the first offense be punished by imprisonment in the county jail or in the state prison for not less than six months nor more than six years, and

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for a second or subsequent offense in the state prison for not less than one year nor more than ten years.”