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COMMONWEALTH v. DABNEY (03/18/59)

March 18, 1959

COMMONWEALTH
v.
DABNEY, APPELLANT.



Appeal, No. 119, Oct. T., 1959, from judgment of Court of Quarter Sessions of Philadelphia County, Jan. T., 1957, No. 705, in case of Commonwealth v. Maurice B. Dabney. Judgment affirmed; reargument refused April 9, 1959.

COUNSEL

David H. Kubert, with him Matthew Kramer, for appellant.

James McGirr Kelly, Assistant District Attorney, with him Juanita Kidd Stout, Assistant District Attorney, James N. Lafferty, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).

Author: Ervin

[ 188 Pa. Super. Page 599]

OPINION BY ERVIN, J.

The defendant, Maurice B. Dabney, a druggist, was charged in five bills of indictment with the felonious sale of drugs on the following dates: February 28, March 3, March 4, March 10, 1956, and one omnibus bill alleging divers sales from September 29, 1955 to February 27, 1956. He was convicted on all five bills and after disposal of motions for new trial and for arrest of judgment he was sentenced on bill No. 705 (which alleged an illegal sale on March 4, 1956). Sentence was suspended on the other bills. From the judgment of sentence the defendant has appealed.

An addict, Theodore Wood, testified that he purchased morphine from the defendant, without any prescription, at the defendant's drug store several times a week beginning in September 1955 and continuing until the time he was arrested in March 1956. He specifically remembered purchases on March 4 and March 10, 1956. Wood, immediately after leaving the drug store, turned over part of his purchases to police officers who were waiting for him outside the drug store and he retained part of the purchases for his own use.

[ 188 Pa. Super. Page 600]

The police had the purchases analyzed by a chemist, who testified that the morphine was of a strength which could not lawfully be sold without a doctor's prescription. Wood also testified that he used some of the drugs purchased on March 4 and March 10 on himself and that they gave him the effect that morphine normally gave him and he described that effect. On March 13, 1956 the defendant reported to the police that his store had been burglarized on March 11 or 12 and that among the things taken was his narcotics supply. On March 13, 1956 the police went to the drug store and made an investigation. A druggist is required to preserve all written prescriptions for narcotics for two years in order to make them accessible to inspection by the proper authorities: Act of July 11, 1917, P.L. 758, as amended, 35 PS ยง 858. When the officers were making their inspection of the drug store on March 13, 1956 they asked the defendant to show them his narcotic reports to the state and his prescriptions for narcotics. Seven prescriptions were reported to the state but only one could be found. This was a prescription on the blank of Dr. Forrest H. Battis for, inter alia, four grains of "Morphine Sulph. Sulphatis" which originally was dated 9-10-55 but the defendant, in the presence of the police officers, changed the date to 3-10 (or 15)-56. The officer also testified that the number which had been on the prescription was "scraped" out by the defendant in his presence. The Battis prescription was marked Commonwealth's Exhibit No. 3. Counsel for the defendant objected to the entire line of questioning as to this prescription for the reason that it made an accusation against defendant of a crime other than those charged in the indictments. The court below overruled the objection, holding that the evidence was circumstantial and admissible in corroboration of the issues being tried. The officer also

[ 188 Pa. Super. Page 601]

    testified that this prescription did not appear in any of the monthly reports. The officer also testified that the defendant told them that he filled this prescription on Sunday, March 11, 1956, in his drug store and that he was under the influence of alcohol at the time. They then had him write on the back of the prescription "This Rx filled Sunday by me 3/11/56" and sign it. The defendant also wrote: "In making this Rx I used four grains of Morph. Sulph." and defendant again signed it.

On May 23, 1956, the witness Wood having plead guilty and having been sentenced to prison and having made a statement implicating the present defendant, the officers obtained a warrant and went to the drug store of the defendant and arrested him. While they were in the drug store waiting for the arrival of the federal narcotic agent, the defendant picked up a prescription and started to crumble it, whereupon Detective Ruane took the prescription from the defendant. This prescription was marked Commonwealth's Exhibit No. 4 and was upon a blank of Raymond M. Andries, M.D., for a Joseph Woodward, address 1720 So. Bancroft, and was dated 3/4/56 and was for morphine sulphate cubes (5) and purported to be signed by Raymond M. Andries, M.D. There was testimony that each cube contained approximately one grain of morphine. There was no objection made by counsel for the defendant to this testimony. In a short time Ira Coleman, the federal narcotic agent, arrived at the drug store and he asked the defendant "for his duplicate opium order forms, for his annual inventories, ...


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