People v. Nordeste

VAN DYKE, P. J. Appellant was charged with having on January 21, 1953, and January 22, 1953, violated the provisions of section 11500 of the Health and Safety Code in that on those two occasions he unlawfully sold a derivative of morphine. He was defended by the public defender and was tried before the court, a jury having been waived by him. He was convicted on both counts. From the ensuing judgment sentencing him to state prison and from the order denying his motion for new trial he has appealed.

The evidence stated briefly was as follows; On the dates charged John Mendoza, a deputy sheriff of San Joaquin County, who was in Sacramento working with the State Division of Narcotic Enforcement, met the appellant at 328% K Street. Mendoza was in the company of an informant and at that time gave to appellant $8.00 and was told to wait. Appellant went into the building and returned, giving Mendoza a capsule. On the next day Mendoza met appellant on the street and asked him if he had anything on him. The appellant said he did not, but if Mendoza would come around later he would get some. Later in the day Mendoza again met the appellant at the same place where he had obtained the first capsule. No one was present at that time. Again the appellant went into the building, came back and delivered a capsule to Mendoza who again paid him $8.00. The two capsules were shown to have contained an unidentified derivative of morphine.

Appellant contends that the information was insufficient as a matter of law to charge the commission of a public offense, particularly in this that while charging that appellant sold a “derivative of morphine” such a substance is not one of the narcotics enumerated in section 11001 of the Health [464]and Safety Code since that section does not mention a “derivative of morphine.” It is true that the section defines narcotics as meaning any of a number of specified substances, including cocaine, opium, morphine, etc., and does not include .in the definition the derivatives of those substances. But the following section, 11002, adds a further definition of narcotics and therein includes “any of the salts, derivatives, or compounds of a narcotic or any preparation or compound containing a narcotic or its salts, derivatives, or compounds.” Appellant argues further that “opium is the mother of all narcotics and that morphine is an alkaloid of opium and cannot be refined into other narcotics.” In short, his argument is that there can be no derivative of morphine. The testimony of the duly qualified expert witness who analyzed the substance contained in the capsules which the appellant sold to Mendoza testified that the substance was “definitely a morphine derivative” although he further said that he had not determined just which one of the derivatives it was and that it might have been a mixture of several. However, he was definite that the capsules contained a derivative of morphine and this testimony squarely meets and refutes the argument of appellant upon this point. We hold that each of the two counts stated a public offense.