Moore

Appellant was originally charged with 11 counts of violation of Health and Safety Code section 11170, subdivision (1), in that he ‘did willfully, unlawfully and feloniously obtain and attempt to obtain a narcotic, to wit, morphine, by fraud, deceit, misrepresentation and subterfuge”; also charged with seven counts of violation of Health and Safety Code section 11170, subdivision (2), in that he “did willfully, unlawfully and feloniously make a false statement in a prescription and order and report and record required by division 10 of the Health and Safety Code. ’ ’ Appellant was also charged with a prior conviction of abortion (a felony). Jury trial was waived.

Count I charged violation of section 11170, subdivision (1), of the Health and Safety Code in the language above quoted, but it was stipulated and ordered at the trial that Count I be amended by adding thereto the words, “and did then and there issue a prescription that was false and fictitious,” thus pleading a violation of section 11165, Health and Safety Code. 1 It was further stipulated that said section 11165 describes a lesser offense and one necessarily included in the one charged in Count I. Defendant was duly…