People v. Bass

FOURT, J. This is an appeal from a judgment of conviction and “the denial of probation” in a case involving a violation of the provisions of section 118 (perjury).

In an information filed in Los Angeles County, it was charged that the appellant did, on or about April 22, 1958, in the Superior Court in Los Angeles County, in a criminal trial wherein he was the defendant (charged with the possession of narcotics) after being duly sworn, testify falsely; that the false testimony was material to the issues tendered in the ease. The appellant pleaded not guilty and the cause was tried without a jury. The case was submitted upon the transcript of the testimony taken at the preliminary hearing and additional testimony taken at the time of trial. The appellant was found guilty, probation was denied and he was sentenced to the state prison.

A résumé of the facts is as follows: Appellant admittedly possessed some narcotics and he was charged with a violation of section 11500 Health and Safety Code. He was on trial therefor in the superior court and took the witness stand in his own behalf. He testified in effect that he had secured the narcotics in question from a Dr. McCowan at his office on November 2 in Pasadena; that he had had an operation on his finger earlier that day and that the narcotic was to be used as a pain killer; that the doctor had given him a sort of prescription.

Dr. McCowan testified that he had never seen the appellant prior to the date of the preliminary hearing, that the form of the prescription blank which was introduced into evidence [385]was one which he had used at a former place of practice, that neither the signature nor the handwriting on the blank were his nor had he authorized anyone to use his signature.

At the place where Dr. McGowan formerly was located (California Emergency Hospital), Dr. Gillette was on duty on the day in question but he testified that he had never seen the appellant before, nor had he written the prescription or given the appellant any pills.

Dr. Elmer Anderson treated the appellant for his injured finger and gave him 20 Percodan tablets. Dr. Anderson did not write the prescription in question. He further stated that the finger was operated on in August, not on November 2, as testified to by the appellant.

At the time of the arrest of the appellant he was asked where he got the prescription blank with the note written on the face thereof and he replied, “Ask my attorney.” Later, at the Hall of Justice Building, the appellant said that the doctor had given it to him and when asked to describe the doctor, he said he could not remember because he was intoxicated at the time. He did not know what side of the street the doctor’s building was on, nor did he know whether it was a one, two or three-story building. The appellant admitted a prior felony conviction and that “I had a narcotic record before.”