People v. Galli

PLUMMER, J.

The defendant was tried and convicted upon an information charging him with the crime of unlawfully having in his possession, selling, furnishing, pedling, etc., a preparation of morphine, contrary to the provisions of the act of March 6, 1907, and the amendments thereto. From the order of the court denying his motion for a new trial and the judgment entered upon the verdict of guilty, the defendant appeals to this court. Only one point is stressed by the appellant in support of his contention that the judgment and order herein referred to should be reversed. It is that the trial court erred in failing to instruct the jury on the law concerning the testimony of accomplices and the necessity for the testimony of an accomplice to be corroborated. The instructions which were proposed by the defendant covering these points are indorsed by the trial judge as “refused, substance given elsewhere.” We have carefully read the instructions and fail to find any instructions covering the points mentioned. The instructions were all asked in relation to the testimony of the witness G. B. McDonald. This testimony, however, is set out in the transcript and, also, in appellant’s brief and shows that the witness McDonald was simply a purchaser. His part in the transaction is testified to as follows: “Q. Now, on the date, •his last date in February, 1924, did you purchase anything

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from the defendant on that date? A. I did. Q. And what was it ? A. Morphine. Q. Do you recall what time of day ? A. Well, it was around about between 4 and 5 o ’clock. . . . Q. And whom did you get that morphine from? A. The defendant. Q. And did he give it to you or did you purchase it from him? A. Purchased it. Q. What did you pay him for it? A. Between three and four dollars, I forget just which. Cross-examination by Martin I. Welsh: Q. You knew, of course, when you bought this morphine from the defendant that' it was illegal to do that, didn’t you? A. I did.”

Upon this testimony it is contended that the witness McDonald was an accomplice within the terms of section 1111 of the Penal Code. In this contention, however, the appellant is laboring under a misapprehension, or a confusion of ideas. That section defines an accomplice “ ... as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” After the purchase of the morphine, the witness was, of course, in possession of the drug illegally and could have been prosecuted for the illegal possession, but similarity of offenses is not the same as identity. The mere fact that the witness, after his purchase, had illegal possession of morphine, though similar to the offense of possession by the defendant from whom the drug was purchased, does not make it identical. In other words, it is not the self-same offense, although it is of the same kind. The possession of each is separate and distinct from the possession of the other and the offenses are likewise separate and distinct. We think the rule applied to the sale and purchase of intoxicating liquors is applicable here. The authorities are almost unanimous in holding that: “A purchaser of intoxicating liquors is not guilty of inciting, aiding, or abetting, counselling, or procuring the sale thereof to himself.” (33 C. J. 617; 46 L. R. A. (N. S.) 409, and notes;