State v. McFall , 103 Ariz. 234 ( 1968 )

STRUCKMEYER, Justice.

Richard McFall was indicted, tried and convicted on five counts of obtaining narcotics by forgery of prescriptions, A.R.S. § 36-1017, as amended by Laws of 1963, Ch. 59. The Court of Appeals affirmed the convictions. Opinion 5 Ariz.App. 539, 428 P.2d 1013 vacated.

Defendant McFall urges that his statements made to the arresting officers and a written statement in his handwriting, a duplicate of the forged prescriptions, were involuntary. He testified that he was a narcotic user and when arrested had in his possession some narcotic “tablets and pills”. Then:

“Q Did you feel that you needed to use some of the tablets ?

“A Yes.

“Q When you were arrested did you inform the officers of this fact?

"A Yes. I requested some of the tablets.

“Q Did you believe they were going to let you have some of them ?

“A At the time that I asked for the tablets, we were — the second time — the first time I asked for them was when we were in the car, the second time I asked for my tablets was at the office in the police intelligence unit, and they told me that that matter would be discussed after we had taken care of the business at hand, going through the search and their asking questions of me.

“Q Did this conversation take place before you filled out the prescription form?

“A Yes. * * *”

Police officers Jack Hitchcock and Robert J. Grant arrested the defendant and interrogated him at the police station. At the trial both responded in the negative to the leading question of whether there were any threats or promises of reward made. However, both testified on cross-examination that while they did not recall the defendant asking for drugs, it was possible that he did. Officer Grant, on cross-examination:

“Q Did he ask permission to use any of the drugs in your presence down at the police station?

“A Not that I recall.

“Q Is it possible that he could have?

“A It’s possible.”

Officer Hitchcock, on cross-examination:

“Q Now, at the police station did Mr. McFall request to use some pills or tablets ?

“A I don’t recall him requesting that, no, sir.

“Q Could it have been possible?

“A Possible, yes, sir.”

An answer by a witness that he does not remember whether an event occurred is not a denial that the event did not occur. Such an answer does not contradict the defendant’s positive assertion that when he asked for the tablets the officers replied, “that matter would be discussed after we had taken care of the business at hand * * The defendant’s testimony is unimpeached, either by the officers’ testimony or other testimony or circumstances in the case. It should have been accepted at face value.

A confession to be free and voluntary within the meaning of the Fifth Amendment to the Constitution of the United States must not have been obtained by “ ‘any direct or implied promises, however slight* * *.’ ” Malloy v. Hogan, 378 U.S. 1 at p. 7, 84 S.Ct. 1489 at p. 1493, 12 L.Ed.2d 653. There was, in the instant case, a clear insinuation that defendant might be given drugs implied from the fact that he was led to believe his request would be considered later. It became the immediate duty of the officers to tell him, plainly, and unequivocally, that they would not give him any of the drugs taken from his possession at the time of arrest. Because they did not give him an unequivocal refusal, a forthright rejection, he was left with some hope of obtaining drugs if he cooperated. That defendant, as he testified, “might be reading something, speaking truthfully, something into there that wasn’t there,” is not relevant to this determination. The hope of reward was there, induced by the equivocal answer.

Moreover, the fact that defendant was not actually suffering acute withdrawal symptoms is of little significance. An addict lives with the certain knowledge that the time must inevitably come when another “shot” or more drugs must be taken and, in dreadful anticipation of that time, must necessarily prepare for it. We are constrained to say that a trial judge can only meaningfully implement the decision in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, at the state level if he realistically and objectively appraises the possible compulsive circumstances surrounding the procurement of a confession. For the foregoing reason, it is our view that this cause must be reversed for a new .trial.

There are other claims of error which we reject. Defendant asserts that his arrest was made without probable cause. A.R.S. ■§ 13-1403, as amended, provides:

“A peace officer may, without a warrant, arrest a person:

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“3. When a felony has in fact been committed, and he has probable cause to believe that the person to be arrested has committed it.”

Prior to the time of the defendant's apprehension on December 14, 1965, the arresting officer determined that narcotics had been obtained by forged prescriptions. Defendant had been identified by two druggists as the person who presented prescriptions at their stores, and the license number of defendant’s car had been supplied by one of the druggists. On the strength of this information the officers had probable cause to believe that defendant had forged the prescriptions. The .arrest was legal. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; State v. Musgrove, 2 Ariz.App. 505, 410 P.2d 127. The search and seizure were clearly incidental to a lawful arrest, Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed. 2d 726; State v. Musgrove, supra; State v. Randall, 94 Ariz. 417, 385 P.2d 709, and defendant’s motion to suppress was properly denied.

Defendant complains of the modification by the trial judge of two of his requested instructions by the addition of the words “or deceive.” For example, in defendant’s requested instruction No. 8:

“Thus in the crime of forgery, a necessary element is the existence in the mind of the perpetrator of the specific intent to defraud or deceive, and unless such intent so exists that crime is not committed.” (Emphasis supplied.)

As an abstract proposition, defendant is correct. The crime of forgery is defined in A.R.S. § 13-421.

“A. A person is guilty of forgery who, with intent to defraud:

“1. Signs the name of another person, * * *_»

The mens rea must include the intent to defraud. An intent to deceive is not alone sufficient to constitute the crime.

However, we do not think that under A.R.S. § 36-1017, the offense here charged, the forgery referred to is the same statutory forgery defined in A.R.S. § 13-421. A.R.S. § 36-1017, as amended, provides:

“A. No person shall obtain or attempt to obtain a narcotic drug, or procure or attempt to procure the administration of a narcotic drug by:

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“2. The forgery or alteration of a prescription or of any written order.”

As stated, forgery in the criminal law and as a prohibited act requires an unlawful intent to defraud and the crime does not exist unless the act of forging is accompanied by the criminal intent. State v. Maxwell, 95 Ariz. 396, 391 P.2d 560. While Webster’s Third International Dictionary defines forgery as the “crime of falsely and with fraudulent intent making or altering a writing” etc., it also defines forgery as “something produced by forging, fabricating or counterfeiting.” It is in this latter sense, we think, that the statute § 36-1017 uses the word “forgery.”

Examination of the statute establishes that the act prohibited is obtaining narcotics by a forged or altered prescription. If an intent to defraud is to be implied, the statute would take on an unreasonable and absurd meaning; that is, the crime prohibited is either obtaining narcotics with the intent to defraud by forging a prescription or obtaining narcotics by forging a prescription with intent to defraud. Courts will not place an absurd and unreasonable construction on statutes. City of Phoenix v. Superior Court in and for Maricopa County, 101 Ariz. 265, 419 P.2d 49; State Board of Dispensing Opticians v. Schwab, 93 Ariz. 328, 380 P.2d 784; Local 266, Intern. Broth, of Elec. Workers, A. F. of L. v. Salt River Project Agri. Imp. and Power Dist., 78 Ariz. 30, 275 P.2d 393. By requiring an intent to defraud to accompany the act of fabricating or counterfeiting, the statute is deprived of all virility since manifestly no person can be pointed to who is defrauded or who the legislature believed could be defrauded.

We conclude that the court erred in instructing the jury as to the elements of the crime of forgery because thereby it implied that the word “forgery” as used in § 36-1017 required a “specific intent to defraud.” Since the court erred in this respect, it likewise erred in adding the words “or deceive” for neither is essential to complete the offense prohibited by the statute. However, the error is one which plainly imposed a greater burden of proof upon the State than is required, and, accordingly, we hold that it was not prejudicial and therefore not reversible error.

Finally, defendant complains that the introduction into evidence of State’s exhibit No. 9, a narcotics kit, found in the possession of defendant was error as having no materiality to the issues of the crimes charged. Possession of the narcotic kit tends to connect the defendant with the offenses charged because of the high degree of probability that a narcotic user would be likely to forge narcotic prescriptions to obtain a supply.

Inasmuch as this cause must be reversed for the reason previously set forth, we find it unnecessary to discuss the claimed failure to establish Pima County as the venue of the offense.

Judgment reversed.

McFARLAND, C. J., and BERNSTEIN and LOCKWOOD, JJ., concur.