Appeals, Nos. 37 to 50, inclusive, April T., 1957, from judgments of Court of Quarter Sessions of Allegheny County, May T., 1952, Nos. 263, 265, 266, 267, 268, 269, 270, 272, 273, 274, 275, 290, 291, and 292, in case of Commonwealth v. Harry Olitzky. Judgments affirmed.
Charles B. Jarrett, for appellant.
William Claney Smith, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Ervin, and Watkins, JJ.
[ 184 Pa. Super. Page 147]
Appellant was found guilty on 14 indictments, 11 of which charged forgery and fraudulently altering and uttering a written instrument, two of which charged unlawful sale of narcotic drugs without a prescription and one of which charged unlawful sale of hypnotic drugs. While sentence was imposed upon each indictment, we are primarily concerned with Indictment No. 290 May Sessions, 1952, charging the sale of narcotic drugs, to wit: opium, to one Alice Brewster without a prescription, and Indictment No. 291 May Sessions, 1952, charging the sale of hypnotic drugs to one Alice Brewster without a prescription, because in the first
[ 184 Pa. Super. Page 148]
indictment a sentence of not less than two and one-half years nor more than five years was imposed and on the second indictment a fine of $1,000.00 was imposed. On each of the other 12 indictments, the defendant was sentenced to pay a fine of six and one-quarter cents and to undergo imprisonment for not less than two and one-half nor more than five years, to run concurrently with the first sentence above mentioned. Alice Brewster was the chief witness for the Commonwealth on Indictments Nos. 290 and 291 May Sessions, 1952, charging the sale of narcotic and hypnotic drugs to her without a prescription. She testified that she was 44 years old and had been a drug addict since she was 14 1/2 years old; that she had known the defendant for five years; that she dealt at his drug store; that she had been for many years an habitual user of opium but that she had ceased using it for the last two and one-half years prior to the trial. She testified that, on October 17, 1951, she entered the defendant's drug store and purchased from him five grains of powdered opium, paying him a dollar a grain for the opium. She stated that she did not have a doctor's prescription for the opium. She explained in detail how she prepared and used the drug. She also described its effect upon her and, as an habitual user, stated that she knew the drug was opium. She also testified to a further purchase on October 20, 1951 without a prescription. She testified that on November 12 and 13, 1951 she purchased certain hypnotic drugs (nembutal and tuanol) from the defendant without prescriptions. She also testified that she had been arrested for stealing mail and removing the contents and she admitted that she had spent 16 months in jail. Although she was subjected to a searching cross-examination by counsel for the defendant, the court below stated in its opinion that "Her testimony was clear and credible." The uncorroborated testimony
[ 184 Pa. Super. Page 149]
of a drug addict is sufficient to support a conviction for the unlawful sale of drugs. Com. v. Aikens, 179 Pa. Superior Ct. 501, 118 A.2d 205. In that case, at page 507, President Judge RHODES said: "If the trier of fact, who sees and hears the witness, is satisfied that the witness was testifying truthfully, even though a drug addict, then such testimony may be sufficient to warrant a conviction of a defendant for the sale of drugs in contravention of the Anti-Narcotics Act of 1917." The defendant took the stand and denied that he had sold the drugs to Alice Brewster without a prescription.
The appellant argues that the court below erred in refusing defendant's demurrer to the evidence and motion for binding instructions at the close of the defendant's case. We are convinced that there was sufficient evidence to submit to the jury on the indictments charging the sale of the drugs to Alice Brewster without a prescription. The credibility of the witnesses was for the jury and the charge of the court with reference to the witness Alice Brewster was sufficient. The court reviewed the testimony of Alice Brewster as follows: "On cross-examination by counsel for the defendant she admitted very freely that she had been in jail, that she had been in poor health from 1948 on, that she was a habitual user, she had been arrested on March 1st, 1952 for forgery and false pretense and taken before Squire Newell on one charge of forgery and two charges of false pretense. These charges were on the same prescriptions as are involved in the case against Harry Olitzky. She also testified that she was arrested for ...