A-5827313.
Decided by Board August 26, 1954.
Crime involving moral turpitude — Forgery of narcotic prescription — Section 11715 of the Health and Safety Code of California.
Forgery of a narcotic prescription in violation of section 11715 of the Health and Safety Code of California is a crime involving moral turpitude for the purposes of section 19 of the Immigration Act of 1917, as amended.
CHARGE:
Warrant: Act of 1917 — Sentenced more than once for crimes, to wit: Attempted burglary, 2d degree, and forgery of narcotic prescription.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of the hearing officer finding the respondent deportable and directing deportation on the charge stated in the warrant of arrest.
The respondent is a 45-year-old divorced male, a native and citizen of Canada. He last entered the United States at Port Huron, Michigan on May 7, 1923, and was admitted for permanent residence.
The record shows that the respondent was convicted on July 30, 1948, in California for violation of section 459 of the California Penal Code — attempted burglary of the second degree, committed on or about June 6, 1948. For this offense he was sentenced on September 3, 1948, to imprisonment in the state prison for the term prescribed by law. The term prescribed by law for such crime is from zero to seven and one-half years.
The record also shows that the respondent was convicted on December 27, 1943, on his plea of guilty to count one of a four count information, count one alleging that he committed a crime in violation of section 11715, California Health and Safety Code, a felony, in that on or about July 23, 1943, he did willfully, unlawfully, and feloniously forge and alter a prescription for a narcotic, to wit: morphine. For this offense, the respondent was sentenced to imprisonment in the California State Prison for the term prescribed by law on February 7, 1944. Such term was from zero to six years. There is included in the court record relating to this conviction a statement under 1199-a P.C. furnished the adult authority pursuant to that code section and to aid in determining the length of confinement and hearing on application for parole.
This statement contains spaces for the signatures of the trial judge and the district attorney, but is signed only by a deputy district attorney for the district attorney. This statement reads in pertinent part as follows:
This defendant stole a pad of narcotic prescription blanks from the office of Dr. S---- M---- at 4413 W. Adams Street, Los Angeles, and thereafter began to obtain morphine sulphate. Such use of aforesaid prescription blanks constitutes the basis for the four counts of the information.
Count one charged a transaction on the 23d day of July 1943, wherein this defendant forged the signature of Dr. M---- and obtained 56 half-grain morphine sulphate tablets, representing himself to the druggist to be the person named as patient in the blank. Defendant had used a fictitious name and a fictitious address as patient.
In a decision dated July 18, 1951, remanding the case to the field for further hearing, the Assistant Commissioner stated that the question as to whether a violation of the State Narcotic Act is an offense involving moral turpitude is a matter that is not entirely settled. The Assistant Commissioner further stated that leaving aside the question as to whether the narcotic law of California is a criminal statute rather than a licensing or regulatory statute, an intent to defraud is not an essential element of the forgery of the narcotic prescription under section 11715 of the Health and Safety Code of California and it cannot therefore be concluded that the offense committed by the respondent was one involving moral turpitude. The Assistant Commissioner pointed out that in People v. Beesly, 119 Calif. A. 82, 6 P. (2d) 114, 970 (December 9, 1931), the court held that whereas the General Forgery Law under the Penal Code of California requires an intent to defraud, forgery under the narcotic law does not require an intent to defraud as an element of the crime.
Section 11715 of the Health and Safety Code of California under which the respondent was convicted for forgery of a narcotic prescription does not contain the words "with intent to defraud" and reads as follows:
Every person who forges or alters a prescription, or who issues a prescription bearing a forged or fictitious signature for any narcotic or who obtains any narcotic by any forged, fictitious or altered prescription, or who has in possession any narcotic secured by such forged, fictitious or altered prescription, shall for the first offense be punished by imprisonment in the county jail for not less than six months nor more than one year, or in the State prison for not more than six years, and for each subsequent offense shall be imprisoned in the State prison for not more than ten years.
In our opinion, forgery of a narcotic prescription in violation of section 11715 of the Health and Safety Code is a crime for the purposes of section 19 of the Immigration Act of 1917 providing it involves moral turpitude. Our position is supported by the decision in Meyer v. Board of Medical Examiners, 206 P. (2d) 1085 (1949), which involved a physician who had been convicted of the unlawful sale of a narcotic in violation of another section of the Health and Safety Code of California (section 11164). In the Meyer case the court referred to the proceeding as a criminal proceeding and to the violation as a criminal dereliction and held that the conviction was within the meaning of a California statute where a conviction of an offense involving moral turpitude was required.
The defendant in People v. Beesly, ( supra), charged with forgery of a narcotic prescription, filed a demurrer alleging that the information was defective on the ground that it did not, among other things, allege an intent to defraud. The court in commenting on this contention stated: "The point that the information fails to charge an intent to defraud is without merit, as the crime defined in section 7 of the Poison Act does not include an intent to defraud as one of the elements of the corpus delicti. The cases cited, involving the charge of forgery under section 470 of the Penal Code are, therefore, not in point, since in forgery the intent to defraud is an element of the crime."
Section 470 of the California Penal Code dealing with general forgeries, titled "Forgery of wills, conveyances, etc." begins with the words "Every person who, with intent to defraud, signs the name of another person * * *." Since section 7 of the Poison Act did not contain the words "with intent to defraud" we can understand the decision of the court in the Beesly case that the information was not defective although it did not charge an intent to defraud.
Unlike the general forgery statute, the forgery of a narcotic prescription does not involve fraud against any particular individual. This very point was raised in People v. Brown, 113 Calif. A. 492, 298 P. 503 (April 17, 1931), where the defendant claimed that since the information alleging possession of a narcotic and forgery of a narcotic prescription did not allege an intent to defraud, it failed to allege any offense. The court in People v. Brown, ( supra), stated:
The argument of appellant proceeds upon the assumption that there is no one to be defrauded by the prescription, and that in the absence of intent to defraud, there can be no forgery. The assumption, however, is false. * * * We have been so prone to think of forgery as defined and announced in our Penal Code (section 470 et seq.) as being an act designed to injure a particular individual or set of individuals that it is not surprising that the appellant has indulged the fallacious assumption. However, we find pertinent language in volume 2, Bishop's New Criminal Law, Section 531, as follows: "If forgery when prejudicial to an individual is indictable, a fortiori, it may be when tending to the harm of many or the public. Indeed, this is the kind of common law forgery mostly spoken of in the olden books." * * * We entertain no doubt whatever that a prescription for a poisonous or narcotic drug is the subject of forgery. The intent to defraud is unmistakably made manifest by the act of obtaining the narcotic by means of the false writing. * * *
It is apparent from the opinion of the court in People v. Brown, ( supra), that a conviction for forgery of a narcotic prescription in California requires a willful act. Forgery generally includes acts of deception deliberately practiced with a view of gaining a wrong or unfair advantage. The Attorney General has held forgery to be a crime involving moral turpitude (38 Op. Atty. Gen. 128, 130). In Matter of A----, A-4789121, 5 IN Dec. 52 (January 8, 1953), we stated that where fraud or forgery is involved, it is clear that a finding of moral turpitude is required. It is our conclusion that the conviction of the respondent on December 23, 1943, for violation of section 11715 of the Health and Safety Code of California was for a crime involving moral turpitude. Since he has been sentenced more than once to imprisonment for terms of one year or more because of conviction in this country of crime involving moral turpitude, committed after entry, we find that he is subject to deportation on the charge stated in the warrant of arrest.
The respondent, a narcotic addict, has been convicted on other occasions for narcotic violations in addition to the two convictions mentioned above. On April 1, 1938, in California on his plea of guilty, he was convicted of forgery and uttering of a narcotic prescription and was sentenced to imprisonment in Los Angeles County Jail for one year. On April 7, 1938, probation which had been granted him on August 13, 1934, in connection with a conviction for a narcotic law violation, possession of heroin, was revoked and he was sentenced to be punished by imprisonment in the state prison of California for the term prescribed by law, which sentence was ordered to run concurrently with the county jail sentence entered on April 1, 1938. On February 20, 1952, he was convicted for unlawfully securing narcotics by fraud, deceit, misrepresentation and subterfuge in violation of section 11170 of the Health and Safety Code of California and was granted probation for five years with the stipulation that within 30 days he must cause himself to be committed to a state or federal hospital for treatment of narcotic addiction.
Since the respondent is deportable as found by the special inquiry officer, the appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.