*1 Apr. 30, No. 7267. Bank. [Crim. 1963.] PEOPLE, THE Plaintiff Respondent, v. WILLIAM
JACKSON, Appellant. Defendant and Supreme appointment McCaw, under Donald B. Appellant. Court, for & Barnum Defendant McCaw Mclnerny General, Mosk, Attorney John S. Stanley Attorneys General, Plaintiff O’Brien, Deputy P. Edward n Respondent. ., .. ... jury of of TRAYNOR, J. was convicted Defendant *2 11501 of the of section fering narcotics in violation to sell appeals judg from the Defendant Health and Code. denying motion the order ment conviction and from for a new trial.1 heroin shows offered to sell that defendant The evidence agent, that Of- Lawrence, an
to undercover Officer did gave $20, that defendant ficer Lawrence defendant anything heroin or else. not deliver en not Defendant that section 11501 does contends compass an offer to sell a narcotic when is delivered. delivery however, ele settled, It is not an essential offering (People v. to sell a ment of the offense Brown, narcotic. Cal.Rptr. ; 816, 357 55 Cal.2d P.2d 1072] [9 Shepherd, Cal.Rptr. People Cal.App.2d v. 311 [19 People Blake, Cal.App.2d v. 253-254 234]; Cal. Rptr. 749].) in Defendant also contends that the court erred trial following specific giving the instruction on intent: “The offering elements, crime of to sell a narcotic consists of two namely: specific an to make offer a nar intent to sell making expression a direct act cotic and done toward offering a offer to another. to sell [T]he a crime where indicates narcotic would constitute a intent to an to make offer sell the narcotic and certain step present an immediate execution of the itself is design. not an element of the with criminal offense charged not nec which the defendant is and therefore it is prosecution essary ever for the to the defendants perform act. is no defense to the offered charged exist in mind of the herein that there the crime unexpressed an an in person makes offer to sell heroin who ’’ perform offered act. never to tention only intent It states that the This instruction is erroneous. an intent to required an offer and that is the to make People Brown, necessary. is not v. make a sale 1072], “a Cal.Rptr. held that 816, we 64, 68 legislation appeal the effective date 1Notice of filed before 5.) nonappealable. (Stats. making ch. such an order sell a intent to narcotic is essential element of the crime make such sale under section 11501.” who offer Persons to sell narcotics no intention of performing engaged are narcotics traffic. Their be 1‘ materially havior is not different from that of other bunco subject penalties imposed offenders and is not to the severe (Compare Code, section 532, 490.) 11501. Pen. §§ Shepherd, Cal.App.2d Cal.Rptr. 306 [19 234], People Blake, Cal.App.2d 246 [3 749], disapproved they approve are insofar as instructions opinion. inconsistent with this testimony at evidence the trial was the of Officer Lawrence. He testified that defendant took the $20 left they go bar met, ostensibly where had across the street “get Defendant the stuff.” returned 10 minutes and again, that he said had made contact. He left and when he hour, had not returned after Officer Lawrence set him. he found find When defendant across the street from bar, did defendant said he not know Officer Lawrence away. and walked attempted When Officer Lawrence followed and him, officer, to talk to defendant cursed the went emerged into restaurant and a few minutes later brandish- *3 ing a 14-inch butcher then knife. Defendant away, walked attempt Officer and Lawrence did to follow him. The reasonably jury from could conclude this evidence that de- fendant's offer to sell was made without the intent perform. The error in the to instruction was therefore prejudicial. judgment and denying the order motion for new trial
are reversed.
Gibson, Peters, Tobriner, J., and J., J., Peek, J., C. con- curred. Dissenting.
SCHAUER, J., The majorityconcede that that “The evidence shows defendant offered to heroin to sell “delivery Lawrence” that is not an Officer essential ele offering ment of the offense of to sell a narcotic.” Neverthe less, majority judgment the ground the reverse on the give following it was error to that instruction: “The offering to crime of sell a narcotic of elements, consists two namely; intent to make offer to sell a narcotic making a expression direct act done toward the offer to another. . . . act of to sell a.narr [T]he a it indicates a crime where constitute would cotie the narcotic and an offer to sell to make certain present execution of step in the an immediate is itself with element of the offense not an design. is criminal it is not neces- charged and therefore defendant defendants ever prosecution to sary for the to the is no defense offered act. perform the per- in the mind of the exist charged there herein crime unexpressed inten- heroin an to an offer sell makes son who act. perform the offered to tion never am instruction, far as I quoted so The substance appellate by an questioned court informed, not been had “offering” was made a crime by judge (since a trial doubted (in by majority of this court a 1909) until the dictum conviction) judgment of v. Brown affirming the Cal.Rptr. 816, (1960) 66-68 1072]. majority margin Brown referred to appears in the As legislative (made 1953) stat subcommittee report of agrees sell, an “individual who that as to ing the view any narcotic, and then delivers some other . . . . furnish person, except nothing can be to that done material ” It will be charge with ‘bunco.’ remembered that [him] (Health Code, 11501) & Saf. of the statute the forerunner the defendant at allegedly Brown bench violated 67-68) (pp. pertinent in Brown dictum as follows: 1The with counsel’s contentions are consistent the In “Both defendant’s Assembly position on Narcotics taken the Subcommittee Judiciary proposed adoption in 1953 when it terim Oommittee of the Code, of the Health and one of which of two new sections it a to offer was enacted. Section makes crime to sell a narcotic 2 Proposed (§ Assembly a substitute. section then deliver Session) Bill No. would have made a crime to offer to coupled acceptance money, though sell a narcotic with the even there delivery recommending anything.3 no passage “In of section the subcommittee ‘ entirely will be law. This [This section] stated: dividual who new will cover the in- agrees sell, furnish, give transport, away any narcotic, liquid, substance, and then delivers some other or material. in- These position law; but, dividuals are known to in a they be to violate the for some may reason, they dealing feel that are with a law enforcement officer tobacco, water, thus and that deliver or some other substance the result they testing have had the commit intent to the crime but are present person, the officer. At the time can be done to that *4 except charge . [him] “bunco.’’ . .’ agree “We with defendant’s contention that a intent to sell a is narcotic an essential element of the crime to make such a (Italics added.) sale ....’’ (Footnotes quoting 2 and 3 from sections 11503 and 11509 of the Safety unnecessary here.) Health and Code have been deleted as 472 1909, 4). pointed (Stats. in 1909 As I
was enacted eh. opinion my concurring (p. in in limited Brown 75-of 55 out emphasis now, appear it Cal.2d), as bears does not and legislative opinion 1953 of a subcommittee should be persuasive as to the intent of considered as informative Legislature in 1909 it amended the when Poison Act to sell, give away’’ “to . offer to furnish or make it unlawful . . except conditions. under certain Legislature language used inclusive of the given defined the instruction which was in and intent language bench; the case at there is of the requires only prove which to not statute State (as defendant offered to sell narcotic but now go require) defendant—beyond farther and that the all reasonable doubt—was honest and ethical dealer dutifully contraband narcotics who intended to deliver full quality. measure standard Appeal As was said the District Court of v. Cal.App.2d 251 (1960) 749], 179 Blake [3 possession indicates that the of a nar “The statute sale separate is a distinct offense from an offer cotic to sell equally or furnish narcotics. clear from the above that place Legislature upon its condemnation separate part every distinct, coming each transaction within (Cf. the mischiefs intended to be reached remedied. States, Burton v. 50 United U.S. S.Ct. [26 Anything gives 1057].) sustenance, solace, . ‘. L.Ed. encouragement selling in the comfort of narcotics or in agreeing narcotics, condemned, prop to sell can be erly so, by Legislature (People Shepard, . .’ v. Cal.App.2d 283, 214].) P.2d [337 argument “Appellant’s is that section 11500 of the Health Code insofar as relates to the crime of unlaw- fully offering to sell narcotics is unconstitutional because the vagueness. pointed is void for As statute Lorenson Superior Court, 49, 60 859], P.2d in order comply requirements, for a statute to with constitutional necessary plans is not that it furnish . . it detailed specifications prohibited. (People acts or conduct Cal.App.2d Supp. Smith, 1039].) P.2d .. “ reasonably adequate ‘. . . Where a statute contains dis- legislative regarding closure of the evil to be com- language giving practices fair batted in notice of the
473 say that such statute be slow to avoided, a court will be complexities of the The to be enforced. indefinite is too by Legislature require that the problems dealt with social by language employed given to the be practical construction easily purposes be too legislation lest their the draftsmen meanings of inquiries the into overrefined nullified ” Superior (1962) 57 Benson Court Cal. (See also words.’ 116].) [4,5] 516, 2d scarcely law of contracts mentioned that as to the needs to be acceptance validity an article—or of an offer to sell the the at all affected the fact not of that offer—is own, know may possession or of, then have offeror not subject (See 46 may procure, of the offer. where he p. 216, cited.) Am.Jur., and eases § quickly be more com- opinion would The simply “offers” is sur- if stated that the word prehensible Health stricken from plusage is to be deemed successfully cannot be denied 11501. Code section today’s holding. This must be so be- effect of such is the goes than holding the offeror further under that unless cause actually goods offer; i.e., unless he delivers the make an honesty good delivery, in the act of apprehended isor scarcely proven beyond be all reasonable doubt. faith can apprehended in the act goods, if or is But he delivers obviously prosecution be liable to as one delivery, he will furnishes, gives transports sells, administers or . . . “who away” majority, therefore, must be under- the narcotic. Legislature intended the word “offers” to hold that stood independent surplusage and not to define mere to be may be convicted. which the offeror for 653f, Code section Speaking another statute—Penal appears no more than legislative intention which Traynor for a unanimous court 11501—Mr. Justice in section supra, Superior (1962), Court Cal.2d (Benson v. said “ designed prevent section is [4]) : That resulting in the commission crimes from solicitations solicited, being from protect ‘inhabitants of this state but to join in the commission to commit exposed to inducement (People Burt, specified. .’ Cal.2d the crimes ‘Purposeful 948].) solicita- 503, 51 A.L.R.2d P.2d preventive dangers calling for intervention and presents tion disposition towards criminal sufficiently of a indicative fortuity liability. Moreover, that the for activity to call person plainly agree solicited does not to commit the incited crime liability. should not relieve the solicitor of .’ (Model Code, 5.02, Draft Penal comment No. [Tent. prohibited 82.) . . Solicitation itself is the evil 1960] prosecution Legislature, particularly therefor appropriate very for case which the crime solicited place.” may paraphrase: “Offering does not take Here we transport itself sell furnish or or administer a [to narcotic] prohibited by prosecution is the Legislature, evil particularly appropriate very therefore is case in *6 completed purchase the crime solicited accept- or other [the ance of place.” not take Manifestly, does one narcotic] transport who sell, furnish, offers to or administer nar- another, soliciting cotic to purchase, such other accept or use the narcotic. my view given as instruction correct and the
judgment should be affirmed. Comb, J., Me concurred.