
    SUPREME COURT — APPELLATE DIVISION.— SECOND DEPARTMENT.
    December I7, I9I5.
    THE PEOPLE v. JAMES DAVICO.
    (170 App. Div. 337.)
    Seeling cocaine—Evidence not justifying conviction—Erroneous CHARGE.
    A person cannot be convicted of the crime of selling cocaine contrary to the provisions of section 1746 of the Penal Law (as added by Laws of 1913, chap. 470) on mere proof that he entered the rear room of a saloon, handed to a police officer a package which was afterwards shown to contain cocaine, and when asked what it was, replied, “ Why, this is the coke,” there being no proof from whom the defendant received the package, what his business was, by whom ;he was employed, or in what capacity or for whom he was acting in delivering the package.
    Moreover, it is reversible error for the court to charge in such action that the owner of the saloon was the defendant’s employer, when there is no proof whatever of that fact.
    Appeal by the defendant, James Davico, from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 11th day of March, 1915, convicting him of the crime of selling cocaine, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial.
    
      George W. Martin (David F. Price with him on the brief), for the appellant.
    
      
      Ralph E. Hemstreet, Assistant District Attorney (James C. Cropsey, District Attorney, and Harry G. Anderson, Assistant District Attorney, with him on the brief), for the respondent.
   Rich, J.:

The defendant was indicted jointly with Dominic Carlucci, but was tried separately.

On the evening of August 29, 1914, one Waitword, a policeman, accompanied by.a woman of the street, visited a saloon owned and conducted by Carlucci, at 30 Flushing avenue. Waitword did not know the appellant, and had never seen him prior to the time when he entered the saloon. He says that while seated in the rear room the appellant entered and handed him a parcel; that he asked, “ What’s this ?” and the appellant replied, “ Why, this is the coke.” ¡Nothing further was said, and there was no conversation between Waitword and Carlucci in the presence of the appellant. ¡No money was paid to the appellant or to any one else in his presence, and Waitword did not see the appellant again until September third, when he arrested him. ¡No conversation was had with him on that occasion, but in his presence Carlucci, after being arrested, said to Waitword: “ Well, Danny, I am surprised at you double-crossing me like that.” This is the entire evidence against the appellant, with the exception of that of the chemist, who testified that the parcel contained cocaine hydro-chloride, one of the salts of cocaine.

Section 1746 of the Penal Law (as added by Laws of 1913, chap. 470), in regulating the possession of cocaine, provides: “(g) Any person who shall sell, offer to sell, furnish, dispose of or give away alkaloid cocaine or its salts * * * except under the conditions and to the persons authorized by this section shall be guilty of a felony.” And it is under the provisions of this section that the appellant has been convicted.

In granting a certificate of reasonable doubt, Mr. Justice Blacicmar, after considering the statute says: “ The general rule is that it is necessary to negative exceptions in order to charge a crime. In this case there was neither a demurrer nor a motion in arrest of judgment. But the same question is presented by the exceptions taken on the trial. Can the crime be established without either direct or circumstantial evidence tending to show that the act of the defendant did not fall within the exceptions contained in the law defining the crime? I think not. As there are many circumstances and conditions, under which the selling, giving away, furnishing and disposing of cocaine is innocent, mere proof of the handling of a package containing cocaine by one person to another does not establish a crime, when dissociated from all circumstances tending to show that it was done in violation of the statute. Ho verb used in the statute as defining the crime, to wit: sell, furnish, dispose of, or give away,’ is satisfied by proving simply the handing of a package containing cocaine by one person to another without a single circumstance from which an inference as to the purpose and intent with which it is to be used can be drawn.” (See People v. Stedeker, 175 N. Y. 57, 17 N. Y. Crim., 326; Rowell v. Janvrin, 151 id. 60.)

I think the evidence is insufficient in other particulars to sustain the conviction. It is not shown that the appellant had any business relations with his codefendant Oarlucci, or that he even knew him. His entire connection with the transaction, so far as appears, was to enter t-he room where the police officer was sitting and hand him a package and say: “Why, this is the coke.” It is not shown when or from whom he received the package, what his business was, by whom he was employed, and in what capacity or for whom he was acting in delivering the package. There is no evidence to establish that he knew that the package contained cocaine, in the absence of proof that the words “ cocaine ” and “ coke ” are understood to mean the same substance. Repeatedly during his charge the learned trial court mistakenly asserted that the appellant was working in the saloon kept by his codefendant Carlucci; that he was employed in such saloon; that Carlucci was his employer, and the jury was instructed that if the appellant was assisting or advising his codefendant in the commission of the crime he was a principal; he charged that the defendant’s counsel admitted “ that these one or two boxes of this powder obtained in this saloon where this defendant here was working as barkeeper, contained cocaine.” I am unable to find any such admission in the record, and I think the charge was so prejudicial to the appellant in the respects indicated as to require a new trial both as matter of right and in the interest and furtherance of justice. As was said in People v. Gorman (83 Hun, 605) the charge having .asserted the existence of facts which, if true, necessarily had an important influence upon the minds of the jury, when there was no evidence before the court to support such assertions, presents such error as to demand reversal.

The judgment of conviction of the County Court of Kings county is reversed and a new trial ordered.

Jehics, P. J., Carr, Mills and Put ham, JJ., concurred.

Jiidgment of conviction of the County Court of Kings county reversed and new trial ordered.

NOTE ON SALE OF COCAINE, ETC.

There seems to .be very few cases on this subject since section 1746 of the Penal Law was added by Laws of 1913, eh. 470, and the position taken by Federal authorities on this subject may be found useful.

The U. S. statute requiring persons who import or deal in opium or coca leaves to register and pay a special tax, and punishing infractions thereof, is a criminal statute, and must be strictly construed. (U. S. v. Wilson [D. C., 1915], 225 Fed. 82.)

Consumers are not required to register or pay tax, nor is their possession of the drug unlawful. (U. S. v. Woods [D. C., 1915], 224 Fed. 278.)

The license is a mere form of imposing an internal revenue tax and implies nothing more than that the license shall not be subject to the penalty of the act. (Tucker v. Williamson [D. C., 1915], 229 Fed. 201.)

The mere keeping of a small amount of opium for personal use does not constitute an offense under sections 6287g and 6287n. (U. S. v. Wilson [D. C., 1915], 225 Fed. 82.)

Section 6287h does not limit the amount of the enumerated drugs a physician may subscribe. (U. S. v. Freedman [D. C., 1915], 224 Fed. 276. See Tucker v. Williamson [D. C., 1915], 229 Fed. 201.)

Physician, issuing prescription for unusually large amount of drugs to which section 6287-h applies-, or dealer filling it, held guilty of offense unless prescription indicates necessity for such unusual quantity. (U. S. v. Curtis [D. C., 1916], 229 Fed. 288.)

Section 6287n, relative to having possession of opium or coca leaves, etc., held to have no relation to failure to keep duplicate order on record. (U. S. v. Chartee [D. C., 1915], 227 Fed. 276.)

It is held in People v. Donnelly (173 App. Div. 713) that a defendant could not be held of a notation' of section 1746 of Penal Law, for possessing heroin hydro-chloride, as that was not an element of any of the substances enumerated in section 1746.

An indictment charging prescribing not in good faith more- than was necessary is demurrable. (U. S. v. Freedman [D. C., 1915], 224 Fed. 276.)

An indictment charging a physician with failure to preserve duplicate of order for drugs specified, and failure to keep- record of o the -amount dispensed, held, not in the alternative or duplicitous. (U. S. v. Chartee [D. C., 1915], 227 Fed. 331.)

Under section 6287n, upon proof that defendant was doing any of the things mentioned in the first clause of section 6287g, he is presumptively guilty if a narcotic is found in his possession, when the burden is in him to show affirmatively that he is not within the prohibition of the statute. 
      
       See People v. Hoyt, ante, Vol. 34; People v. Donnelly, post.
      
     