This is a writ of error from a conviction under the Harrison Anti-Narcotic Law (Comp. St. §§• 6287g-6287q). The indictment was upon three counts alleging possession, sale and purchase respectively. The conviction was upon all three counts and the sentences were imprisonment for three years on each count, to run concurrently.
The first error alleged is that of insufficient evidence to sustain the verdict. As the verdict was upon all three counts, as the only punishment was imprisonment, as the punishment on each count was the same and as the terms were to be served concurrently, it is unnecessary to examine this point further than to ascertain if there is sufficient testimony as to any count. We have no question that the evidence is sufficient as to the second count, which was for sale. The evidence was clear that a man named Gordon had been searched and sent with marked bills into this drug store; that three officers had remained in a position where they could observe him going into and remaining in the drug store until he came out, when he gave a prearranged signal; that upon receipt of this signal the three officers went at once into the drug store, finding defendant and several frequenters; that the informer had in • his possession there a package of morphine unstamped; that defendant, after being told by one of the officers to sit down and remain seated, arose and rushed to a sink and turned on the water; that one of the officers ran to the sink and succeeded in rescuing several of the marked bills from the drain down which they had been washed an inch or so; that defendant had then stated to one of the officers that she thought she had been double-crossed and did not want to have any marked money found on her. This evidence was sufficient to prove a sale of this morphine by this defendant to the informer. The contention that the informer may have secured the morphine from one of the other persons found in the drug store is not to be taken very seriously. Not only is it absurdly *232improbable, but defendant was caught trying to make way with the marked money.
The other objections are to the charge of the court. The first of these objections is that the eourt assumed that the defendant was a dealer when that was a matter of proof and would have to be shown by evidence of previous transactions. Such is not the law, but, if it were, there was evidence introduced of other sales by accused to other persons. It is also objected that the court assumed that the defendant was in possession of the money because of her actions in connection with it. We think the court followed the evidence in this matter and that it would be impossible, rationally, to conclude, from the evidence, that she was not in possession of it. It is also- objected that the charge was, in substance, that possession of narcotics as matter of law constituted the accused a dealer. Possession, under the statute, was evidence that accused was a dealer and made out a prima facie case to that effect. It is objected that there is no evidence of possession. This can hardly be true in face of the evidence concerning the purchase and the finding of the morphine in the possession of the informer. The matter of entrapment urged is not well taken, because the defendant specifically denied any reliance upon that defense; because there was no evidence of entrapment but on the contrary a showing that there was probable cause for the officers to believe accused was disposing of narcotics unlawfully ; because this portion of the charge is correct. It is objected that the charge was unduly argumentative and prejudicial to the accused. It seems to us that the eourt did not exceed the proper limits of comment. Objection to the expressions of the court concerning the alleged acts of the officers in disarranging, if not destroying property while in the store, is not well taken. What the eourt tried, in his charge, to do was to eliminate from the issues of this trial these acts of the officers. Obviously, such was the duty of the eourt. However reprehensible these officers may have been in their acts in that respect, such acts had nothing to do with the guilt or the innocence of this accused and should not have been allowed to confuse or mislead the jury. We think the objections to the charge, which are urged, are not well taken. Another reason is that most of these objections were in no manner brought to the attention of the trial court or properly preserved in the record.
We think the convictions on the first and second counts, which are for possession and sale respectively, should be sustained. Probably the third count, for purchase, is properly sustainable on the basis of a prima facie case based on possession; but it malees no difference what may happen to any two of the three counts in the indictment because the sentences are identical and concurrent and if one count is good, the conviction should be sustained.
The judgment should be and is affirmed.