Jacob Kossman, Philadelphia, for appellant.
Maurice W. Sporkin, Asst. Dist. Atty., John H. Maurer, Dist. Atty., Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Ross, Arnold and Gunther, JJ. Dithrich, J., absent.
[ 169 Pa. Super. Page 208]
The defendant was convicted on bill 168, charging the unlawful possession and sale of heroin, a derivative of opinion, in violation of the Act of July 11, 1917, P.L. 758, as amended, 35 P.S. § 851 et seq., and was sentenced. He is here seeking a new trial. We are not concerned with his convictions by the same jury of similar charges on seven other bills.
At the trial, in support of the charges, there was direct and positive evidence that the defendant sold five capsules to one John Belko, a known drug addict, on July 13, 1950, for $10. The sale was observed by detective Regler who was in hiding nearby. Both Belko and Regler testified to the sale. Each of the five capsules, according to the testimony of the chemist to whom they were delivered for analysis, contained 1.3 grains of a mixture of heroin hydrochloride and milk sugar. The chemist testified that the milk sugar was added to give the heroin the bulk necessary for manipulation by a user. He described the mixture in the capsules as the 'general article of commerce' used by dope addicts.
Drugs, the possession and sale of which are prohibited by the Act, include all derivatives of opium but, under § 2 of the Act as amended, 35 P.S. § 852, exclude compounds, among others, which do not contain more than one-eighth of a grain of heroin, if a solid as here, in one avoirdupois ounce. The question was
[ 169 Pa. Super. Page 209]
not raised below and it is now contended for the first time that sine the evidence is not specific that the capsules contained heroin in a mixture in excess of the above proportion per ounce, the conviction of defendant must be set aside for want of proof that he possessed and sold heroin in violation of the Act. There is no merit in this contention under the circumstances. In the supplemental record, which defendant neglected to print, there is an admission, read into the record at the outset of the trial of this case, that this defendant has 'no right to be in possession of or sell or dispose of or dispense the drug or drugs which will now be discussed by the witnesses' if it be found that he did possess or sell them. This is an admission, and was so intended by the Commonwealth and the defendant, of a heroin content in the mixture in the 5 capsules here involved, in excess of that allowed by law, which could be legally possessed and sold only by druggists or other qualified dispensers. And if the defendant possessed and sold the heroin, as the jury found, he on the above admission is guilty of violations of the Act.
The above consideration has a bearing also on defendant's complaint that the court in its charge did not define the crimes charged in the indictment. The trial judge did explain the charges and instructed the jury as to the nature of the offenses but without specific reference to the provisions of the Act. On the admission of an unlawful heroin content in this case, the offenses of possession and sale became self-defining. And in the light of defendant's admission the charge substantially covered the issues involved. It is only where the issues are not clear that the failure of the court to define the offense constitutes fundamental error. Commonwealth v. McDermott, 152 Pa. Super. 208, 31 A.2d 601. In any view since the defendant through his counsel did not request further instructions he cannot now complain of inadequacy in definition
[ 169 Pa. Super. Page 210]
of the crimes, in the absence of a showing that the alleged omissions contributed to the jury's verdict. Commonwealth v. Bruno, 316 Pa. 394, 175 A. 518. Defendant did not raise the question at the trial of this case either by requesting additional instructions or by exception to the charge and he therefore cannot raise the question here. Commonwealth v. ...