People v. Beesly

Appellant was charged with violating the State Poison Act by forging a prescription for *Page 84 narcotics and appeals from the judgment of imprisonment in the state prison on the grounds that the court erred in overruling his demurrer to the information and that the sections of the State Poison Act (secs. 7 and 8, Act 5994, General Laws, as amended) upon which the prosecution is based are unconstitutional.

[1] The information charges the defendant with the "crime of violation of the State Narcotic Act" and alleges that defendant, "with intent then and there to obtain narcotic drugs, did wilfully, unlawfully, fraudulently and feloniously make, forge and counterfeit a certain prescription and order in writing for the delivery of narcotics, and did then and there utter, publish and pass the same, knowing said prescription to be false, forged and counterfeited, as aforesaid, with intent then and there to obtain narcotic drugs as aforesaid", and then sets out in haecverba a physician's prescription for "H.M.C. No. 1 Tablets No. XX". Appellant relies basically upon the failure of the pleading to set forth that the drug called for by the forged prescription was one of those enumerated in section 8 of the Poison Act. The information quite evidently was intended to charge a violation not of the general forgery law, section 470 of the Penal Code, but of section 7 of the Poison Act, which makes it a felony to forge a prescription "for any narcotic drugs specified in section eight of this act or who obtains such drugs by any forged or altered prescription . . ."

The sufficiency of an indictment or information is not to be tested by the rule of the common law nor by the rules which existed prior to the amendments of 1927 and 1929 of our statutes relating to pleading in criminal cases. The true rule can be determined only by a consideration of all of the statutes affecting the subject as they exist since those amendments. The purpose of an indictment or information is to inform the accused of the charge which he must meet at the trial. At common law, where this information came solely from the indictment, much particularity was required. Thus, in charging murder, it was necessary to charge the manner in which the murder was committed and the means used but, long before the present form of pleading, our Supreme Court in People v. King, 27 Cal. 510 [87 Am. Dec. 95], said: "If the defendant is guilty he *Page 85 stands in need of no information to be derived from a perusal of the indictment as to the means used by him in committing the act or the manner in which it was done for as to both his knowledge is quite as reliable as any statements contained in the indictment. If he is not guilty, the information could not aid him in the preparation of his defense." As a part of the accusatory procedure the law now provides that in every case the accused is entitled to a copy of the testimony given before the grand jury or the committing magistrate, as the case may be (secs. 870, 925, Pen. Code), and he is to-day better informed as to the case he must meet than was an accused under the detailed form of pleading required at common law. By section 959 of the Penal Code as amended in 1927 (Stats. 1927, p. 1041) we have the statutory provision that an information is sufficient if it can be understood therefrom that it is entitled in a court having authority to receive it, that the defendant is named, or, if his name is not known and that fact is pleaded, he may be charged by a fictitious name, that the offense is one of which the court has jurisdiction and that the offense was committed prior to the filing of the information. The former requirements of subdivisions 6 and 7 of section 959, that the act or omission charged must be clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended and to enable the court to pronounce judgment upon conviction, were repealed by the 1927 amendment and are no longer a part of that section. In so far as section 950 of the Penal Code seems to conflict with the rule laid down by section 959 as amended, the latter section must control in view of the evident intent of the legislature to remove the former requirements of subdivisions 6 and 7 by their repeal. Section 952, which formerly required the pleading to set forth the particular circumstances of the offense charged, as amended, declares that it shall be sufficient if it be "in any words sufficient to give the accused notice of the offense of which he is accused". There, in a nutshell, is stated the principle of our present simplified form of pleading a criminal offense — the accused is entitled to notice of the offense of which he is charged but not to the particular circumstances thereof, such details being *Page 86 furnished him by the transcript of the testimony upon which the indictment or information is founded.