Opinion by
Thе defendant was convicted on bill 168, charging the unlawful possession and sale of heroin, a derivative of opium, in violation of the Act of July 11, 1917, P.L. 758, as- amended, 35 PS §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, accоrding 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 necessаry 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 PS §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 *209 not raised below and it is now contended for tbe first time that since the evidence is not specific that the capsules contained heroin in a mixture in excess of the above proрortion 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 circumstancеs. 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 sеll 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 offensеs 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 definе the offense constitutes fundamental error.
Commonwealth v. McDermott,
The charge was not argumentative and prejudicial as the defendant now, also for the first time, contends. He did not except specifically to any of the court’s instruсtions on that ground nor take a general exception to the charge as a whole. While a defendant in the absence of exceptions may nevertheless complain of errors in the charge of the court which are fundamental
(Commonwealth v. Lehman,
Defendant questions, again without exception, the charge of the court on the defense of an alibi. He testified that he was in his home at the time of the alleged commission of the offenses. As to рroof of an alibi his testimony stands alone; he did not call one witness in corroboration although he said there were a “dozen” who would support his testimony. Nevertheless the trial judge, out of consideration for the rights of the defendant, charged: “There was a further factor brought out, namely, alibi. . . . Bozzi testified that on a certain day he did not leave his store. Evidence of that kind is in the nature of an alibi, because, of cоurse, we know that if a man is at some place over there he cannot, at the same time, be committing a crime here. But the burden of proving an alibi rests upon the defendant who asserts it. There is no burden on the Commonwealth in connection with that. Of course, if they establish it by a preponderance of evidence, then there would be a burden on the Commonwealth to rebut it, but I shall discuss a little further the evidence as to alibi. If it is strong enough, and all-inclusive enough, it might be sufficient in itself to convince you that the man wasn’t at the place and therefore did not commit the crime. Even where it is • not so strong as that, nevertheless, along with othеr evidence, it might be sufficient to raise a reasonable doubt, In such event, you must give the benefit- of that *212 reasonable doubt to the defendant.” The defendant has no just complaint as to this instruction.
The defendant did sрecifically except to the charge of the court in two respects, viz: the instructions as to the character testimony on behalf of the defendant and, the testimony of bad reputation of Belko fоr truth and veracity. The defendant produced four of his customers, who dealt with him at his grocery store and his family doctor, all of whom testified that his reputation was good. As to the effect of this testimony the trial court properly charged the jury: “In this case there is also the factor of character evidence. Character evidence is really evidence of good reputation. The law says that if it is strong enough in itsеlf it is substantive proof on behalf of a defendant [which] may, of itself, be sufficient to justify a verdict of acquittal. Even if it doesn’t, it might be sufficient, along with other evidence, to raise a reasonable doubt.” The evidencе of good reputation in this case clearly was not impressive and under the circumstances the trial judge was justified in this additional comment: “But you have a right to consider the people who came in here and gave that character evidence. You saw them upon the witness stand and you saw what kind of witnesses they were. You have a right to consider whether a customer, for example, going into a grocery store to buy provisions, would know anything about the owner’s reputation for conducting a business in narcotics. That is something you have a right to take into consideration.” The trial judge properly raised the question; he left the answer entirely with the jury.
Appellant does not now question the charge as to the effect of the testimony of Belko’s reputation for truth and veracity. But he now contends that the court improperly" restricted his cross-examination of Belko which if allowed would have discredited him. The *213 opinion of President Judge Olivek who was also the trial judge, completely refutes this contention, thus: “The bill under which defendant Bozzi was sentenced was supported not only by the testimony of Belko but also by the testimony of Lt. Linehauser and detective Begler. However, it is only as to Belko that defendant claims his right of cross-examination was curtailed. Belko was arrested as a user on July 10 but the evidence showed that the police surgeon examined him at that time and pronounced him negative. Any intimation that, under such circumstances, Belko- had an interest in testifying falsely agаinst Bozzi is utterly unfounded. Under cross-examination Belko testified freely that he was a self-confessed user of narcotics and that he had been arrested and convicted 21 times. Although the district attorney objectеd to the last question, he made no motion to strike out the answer. There it is in the record and it is difficult to understand why appellant in his brief prints the question and omits the answer. Counsel for defendant asked the question ‘And you arе awaiting a deferred sentence for the use and sale of narcotics?’ [This was not a correct statement; he was awaiting trial and merely as an alleged user of narcotics]. The question was objected to. However, a moment later the district attorney said, ‘I will withdraw my objection.’ And the court said to defense counsel, ‘Go ahead’, but defense counsel did not go ahead. Instead he abandoned that line of examination and asked an entirely different question. The assertion that the cross-examination of Belko was improperly restricted is entirely without merit.”
The testimony was more than sufficient to Sustain the verdict, and we are unable to find error in this .record; this appellant had a fair trial.
- Judgment: and; sentence affirmed and it is' ordered that the defendant appear in the court bélow at such *214 time as lie may be there called, and that he be by that court committed until he has complied with the sentence, or any part of it, which had not been performed at the time the appeal was made a supersedeas.