State v. Harkness

HOLCOMB, J., dissents. Rex Harkness, Lyle Harkness, and P.L. Sanders were charged, in a single information, with the violation of § 3 of chapter 47, Laws of 1923, p. 134 (Rem. Rev. Stat., § 2509-3 [P.C. § 4071-3]).

In each of three counts, identical in language except as to dates, it is charged that the defendant Rex Harkness, intending to commit a crime,

". . . did, unlawfully and feloniously present to a druggist .. . a physician's prescription signed by one P.L. Sanders, a physician, for one half grain sulphate morphine and issued in the name of one O.H. Anderson, with intent by means thereof to procure from said druggist a narcotic drug . . . to-wit, sulphate morphine; and the said defendant did then and there sign said certificate as O.H. Anderson and did procure from said druggist one half grain sulphate morphine; the said defendant then and there knowing said physician's prescription to have been falsely made and forged in the name of one O.H. Anderson, . . ."

Lyle Harkness was charged in three counts, identical in language except as to dates and fictitious names, with similar offenses.

In six counts, identical in form except as to dates and names, it is charged that P.L. Sanders, with intent to commit a crime,

". . . did, unlawfully and feloniously falsely make a physician's prescription as set forth in Count I herein; the said defendant, P.L. Sanders, then and there knowing that the said O.H. Anderson was a fictitious person and that the said physician's prescription was to be forged and presented in the name of O.H. Anderson by the said Rex Harkness with an intent to procure narcotic drugs . . . to-wit, sulphate morphine; the said defendant. P.L. Sanders, then and there intending by means of said physician's prescription to procure from said druggist narcotic drugs . . . to-wit, sulphate morphine, contrary to the form, force and effect of the statute in such cases made and provided, . . ."

The information contained a thirteenth count, in which it is charged that the three defendants

". . . did on the dates mentioned in Counts I, II, III, IV, V and VI herein, conspire to accomplish a crime or unlawful purpose, to-wit: to procure narcotic drugs, as defined by Chapter 47, Laws of the 1933 [1923] session of the Legislature of the State of Washington, from druggists by aid of physician's prescriptions executed falsely by the said defendant, P.L. Sanders, and forged and presented by the said defendants, Rex Harkness and Lyle Harkness as set forth in Counts I, II, III, IV, and VI herein, . . ."

The defendants filed separate demurrers to the information, based upon the insufficiency of the facts charged to constitute a crime, and improper joinder. The court sustained the demurrers and entered an order of dismissal. The state appeals.

The question on appeal is whether the information is demurrable on any of the grounds specified.

[1] The first twelve counts of the information, that is to say, the three counts against each of the respondents Harkness and the six counts against respondent Sanders, are, substantially, in the language of the statute, and sufficiently charge the respondents severally with its violation. The pertinent provisions of Rem. Rev. Stat., § 2509-3, follow:

"It shall be unlawful for any person to sell, furnish, or dispose of, or have in his possession with intent to sell, furnish, or dispose of any narcotic drug or drugs, except upon the written and signed prescription of a physician regularly licensed to practice medicine and surgery who has complied with the regulations of, and is duly registered under the laws of the state of Washington, and the laws of the Congress of the United States. All such prescriptions shall be written with ink or indelible pencil, must be signed by the physician issuing the same, and must contain the name and address of the person forwhom prescribed. . .

"Any person violating any of the provisions of this sectionand any person who shall falsely make, forge or alter or knowingthe same to have been falsely made, forged or altered shallpresent to any druggist a physician's prescription with intent bymeans thereof to procure from such druggist any narcotic drug as defined in this act shall be guilty of a felony, . . ." (Italics ours.)

Clearly, under the language of this section, a physician who issues a prescription in the name of a fictitious person and delivers it to a person not named, knowing and intending that the person to whom it is given will, by a fictitious endorsement, procure narcotics from a druggist, in violation of the statute, must be held to have falsely made the prescription; carrying a falsehood on its face, the prescription is falsely made.

The statute makes it an offense for any person knowing a physician's prescription to have been falsely made to present it to a druggist with intent to procure a narcotic drug. The respondents Harkness are charged in the information with having presented the prescriptions to a druggist with intent, by means thereof, to procure narcotics, knowing the prescriptions to have been falsely made. They are properly charged under the statute.

We are of the opinion that the first twelve counts of the information, that is to say, the three against each of the respondents Harkness and the six against respondent Sanders, are good as against demurrer. [2] Under the rule announced in State v. Brunn, 145 Wash. 435,260 P. 990, the counts charging the respondents could have been joined in a single information against them severally under Rem. Rev. Stat., § 2059 [P.C. § 9272], as being of the same class of crimes; and it would seem that this section also warrants the joining in one information of the counts against the respondent Sanders and the counts against the other respondents severally, because of the close connection between the issue of a false prescription and its presentation with knowledge of its falsity.

But we see no ground upon which the counts against both the Harknesses can be included in the same information. While they are charged with crimes of the same class, the crimes are alleged to have been committed independently and at different times. The crimes are related to each other only by the fact that the prescriptions used were issued by the same physician.

[3] It was, doubtless, to justify what would otherwise be an improper joinder that the thirteenth count was embodied in the information. We find ourselves unable to agree with the appellant that the misjoinder is cured by the conspiracy charge. It is doubtful if the count is sufficient in form to charge a conspiracy. State v. Scollard, 126 Wash. 335, 218 P. 224, 32 A.L.R. 1082; State v. McGonigle, 142 Wash. 465, 253 P. 655. Reference is made in the count to counts one to six, inclusive, for a specification of the acts constituting the conspiracy. When these counts are examined, it will be seen that they charge separate substantive offenses without alleging any concert of action between the Harknesses.

If conspiracy appears, it is a dual conspiracy, one between Sanders and Rex Harkness, and another between Sanders and Lyle Harkness; in other words, two conspiracies whose only connection is the fact that Sanders participated in both. If we are to assume that the information sufficiently charges two separate conspiracies, there is still a misjoinder.

"If, however, the charge of conspiracy in the indictment is merely that all the defendants had a similar general purpose in view, and that each of four groups of persons were co-operating without any privity each with the other, and not towards the same common end, but toward separate ends similar in character, such a combination would not constitute a single conspiracy, but several conspiracies, which not only could not be joined in one count, but not even in one indictment. Section 1024, R.S.; McElroy v.U.S., 164 U.S. 76, 17 Sup. Ct. 31, 41 L. Ed. 355, Frohwerk v.United States, 249 U.S. 204, 39 Sup. Ct. 249, 63 L. Ed. 561;United States v. Clark (D.C.) 125 Fed. 92." United States v.McConnell, 285 Fed. 164.

Since there was a misjoinder of parties, the demurrer to the information was properly sustained by the trial court, and its order of dismissal must be affirmed.

STEINERT, C.J., MAIN, and SIMPSON, JJ., concur.