
    The People of the State of New York, Respondent, v. Ernest Klein, Appellant.
    Argued October 25, 1965;
    decided December 1, 1965.
    
      Michael I. Winter for appellant.
    I. The writing, uttering and procurement of drugs on prescriptions made and signed by a duly licensed physician is not forgery by false making of a doctor’s prescriptions, in violation of section 889-b of the Penal Law, although the prescriptions name as the patient one for whom the medication prescribed is neither intended nor used by the physician. (People v. Esrig, 240 App. Div. 300; Manufacturers & Traders Trust Co. v. Meyer Malt & Grain Corp., 132 Misc. 138; People v. Filkin, 83 App. Div. 589, 176 N. Y. 548; Ex parte Hibbs, 36 F. 421; People v. Underhill, 142 N. Y. 38; International Union Bank v. National Sur. Co., 245 N. Y. 368; People v. Cantor, 134 Misc. 357; People v. Clurman, 290 N. Y. 242; People v. Levitas, 40 Misc 2d 331; People v. Miles, 289 N. Y. 360; Ex parte Bain, 121 U. S. 1; People v. Smith, 232 N. Y. 239; Matter of Tonis v. Board of Regents of Univ. of State of N. Y., 295 N. Y. 286; United States v. Tommasello, 160 F. 2d 348; People v. Budner, 15 N Y 2d 253.) II. Appellant was brought to trial for and convicted of forgery in the third degree. He was, however, actually tried and sentenced for injecting his patient with excessive quantities of narcotics, although no such charge is made in the indictment. The course of the trial and the prosecutor’s statement in summation deprived appellant of a fair trial. (People v. Miles, 289 N. Y. 360; Todd v. United States, 158 U. S. 278; People v. Jackson, 7 N Y 2d 142; People v. Meyer, 14 A D 2d 241, 11 N Y 2d 162.) III. The court’s charge was inadequate and, in part, erroneous. The jurors’questions were not answered. (People v. Gonzalez, 293 N. Y. 259; People v. Gezzo, 307 N. Y. 385; People v. Miles, 289 N. Y. 360; Ex parte Bain, 121 U. S. 1; People v. Smith, 232 N. Y. 239.)
    
      Frank D. O’Connor, District Attorney (Benj. J. Jacobson of counsel), for respondent.
    I. A doctor who writes a prescription containing a false statement of fact — particularly one for narcotics, the prescribing and dispensing of which is subject to governmental restrictions—violates section 889-b of the Penal Law. (United States v. Tommasello, 160 F. 2d 348; International Union Bank v. National Sur. Co., 245 N. Y. 368.) II. Neither the references to narcotics at the trial nor any statement by the prosecutor in summation was improper. In any event, these incidents in the trial are not reviewable by this court for no objection was made to any of them. (People v. Cohen, 5 N Y 2d 282; People v. Feld, 305 N. Y. 322; People v. Bester, 297 N. Y. 408; People v. Bresler, 218 N. Y. 567; People 
      v. Pindar, 210 N. Y. 191.) III. The charge to the jury was adequate and correct, and the jurors’ questions were adequately answered. In any event, since no exception was taken to the charge nor any requests to charge were made, in this respect, the claimed errors—which are not errors — are not reviewable by this court. (People v. Feld, 305 N. Y. 322; People v. Bresler, 218 N. Y. 567.)
   Dye, J.

Section 889-b of the Penal Law, entitled “ Forging doctor’s prescription ”, provides: “ A person who shall falsely make, alter, forge or counterfeit a doctor’s prescription, or utter the same, shall be guilty of forgery in the third degree.” (L. 1954, ch. 494, eff. July 1,1954.) Forgery in the third degree is defined in section 889 of the Penal Law.

The situation presented on this appeal is novel in that the instruments allegedly forged by the defendant, a licensed doctor, in violation of section 889-b of the Penal Law, were on the doctor’s own authorized prescription forms and were regular in all respects except that the patient named in four instances was deceased and the patient named in one instance was fictitious. These prescriptions had been presented by the doctor at various pharmacies and the narcotic drug called for was received by the doctor who then administered or gave the same to an addicted person whose identity he thus sought to conceal.

The question is whether such conduct amounts to the crime of forgery as a felony within the meaning of section 889-b of the Penal Law. Under the literal language of that section, it seems manifest that the person intended to be reached is not the doctor, but the person impersonating a doctor, “ who shall falsely make, alter, forge or counterfeit a doctor’s prescription, or utter the same ”. Such a reading accords with the classic meaning of forgery as an act “ of another * * * ‘ [someone] other than the one actually making the signature * * * [and] that it shall pass and be received as the [instrument] of some other party ’ ” (International Union Bank v. National Sur. Co., 245 N. Y. 368, 373). When the doctor signed his own name to an authorized prescription blank to obtain narcotics, his attempt to conceal the name of the patient by use of a false name was not the forgery contemplated by section 889-b, but more like the fraud and deceit proscribed by section 3351 (subd. 1, par. [a], cl. [4]) of the Public Health Law, which provides in pertinent part:

“ 1. No person shall:
“ (a) obtain or attempt to obtain a narcotic prescription or a narcotic drug, or procure or attempt to procure the administration of a narcotic drug, * # * (4) by the use of a false name or the giving of a false address; ” (L. 1961, ch. 884 eff. July 1, 1961).

The judgment of conviction should be reversed and the indictment dismissed.

Chief Judge Desmond (dissenting).

I dissent and vote to affirm.

For a century, from McCluskey v. Cromwell (11 N. Y. 593) to Matter of Roosevelt Raceway v. Monaghan (9 N Y 2d 293, 304), the appellate courts of New York have been stating with emphasis and applying with consistency the first, best rule of statutory construction: “ if the language of a statute is plain and unambiguous, there is neither need nor warrant to look elsewhere for its meaning”. Section 889-b of the Penal Law is too clear for misreading and it fits the facts of this case like a glove, yet the conviction is reversed and the indictment dismissed. The statute incriminates one who shall falsely make, alter, forge or counterfeit a doctor’s prescription ’ ’. Defendant variously filled in a fictitious name and the name of a person who was dead on prescription blanks for narcotics, had the prescriptions filled at pharmacies and then gave the drugs to an addict. If he did not thus 1 ‘ falsely make ” a “ doctor’s prescription ”, words have lost their meaning. That there is another statute (Public Health Law, § 3351, subd. 1, par. [a], cl. [4]) which also penalizes this conduct is interesting but legally of no consequence. If defendant had been convicted under that other law, he would, I suppose, defend on the ground that section 889-b of the Penal Law is more appropriate for his offense.

Judges Fuld, Van Voorhis, Burke and Bergan concur with Judge Dye; Chief Judge Desmond dissents and votes to affirm in an opinion; Judge Scileppi taking no part.

Judgment reversed, etc.  