Beesly

Appellant was charged with violating the State Poison Act by forging a prescription for *Page 84 narcotics and appeals from the judgment of imprisonment in the state prison on the grounds that the court erred in overruling his demurrer to the information and that the sections of the State Poison Act (secs. 7 and 8, Act 5994, General Laws, as amended) upon which the prosecution is based are unconstitutional. [1] The information charges the defendant with the "crime of violation of the State Narcotic Act" and alleges that defendant, "with intent then and there to obtain narcotic drugs, did wilfully, unlawfully, fraudulently and feloniously make, forge and counterfeit a certain prescription and order in writing for the delivery of narcotics, and did then and there utter, publish and pass the same, knowing said prescription to be false, forged and counterfeited, as aforesaid, with intent then and there to obtain narcotic drugs as aforesaid", and then sets out in haec verba a physician's prescription for "H.M.C. No. 1 Tablets No. XX". Appellant relies basically upon the failure of the pleading to set forth that the drug called for by the forged prescription was one of those enumerated…

The petition is largely a restatement of the argument presented in appellant's brief. The argument that no case has as yet been decided involving the sufficiency of an information charging the precise offense here involved is not at all persuasive. As to the case of People v. Horiuchi, 114 Cal.App. 415 [ 300 P. 457 , 460], the statement quoted from the opinion in the petition that, "Such statement must be in ordinary and concise language and made in such manner as to enable a person of ordinary understanding to know what was intended. But, above all things, the charge must be so certain that a court would be enabled to pronounce judgment upon conviction," we cannot but feel that the learned court rendering the opinion could not have had in mind the fact that by the amendment of 1927 to section 959 of the Penal Code those requirements for the sufficiency of an indictment or information were removed from our rules of pleading. The facts of the Horiuchi case have no resemblance to the facts here. [8] Petitioner is in error in the assertion that the amendment of the information, by changing the allegation of the information that the defendant was accused of forgery to the averment…