(dissenting) — Thomas Stanley Suleski, who was convicted of an attempt to obtain a narcotic drug by fraud, appeals from his conviction and the sentence imposed.
In order to understand the basis of appellant’s assignments of error, we must consider the rather unusual situation presented by the record.
Appellant was first charged with the possession of burglary tools. About 10 days later, he was charged in a second information with attempting to obtain a narcotic drug by fraud, deceit, misrepresentation or subterfuge and/or alteration of a prescription. By agreement of counsel, appellant, was tried on both charges simultaneously. As will be seen, this procedure gives rise to some complications in passing upon the assignments of error.
Prior to the trial, appellant filed a motion to suppress all evidence obtained by the state by means of an alleged *53illegal search of the automobile which he was driving at the time of his apprehension. This motion related solely to the first charge (burglarly tools) and had no bearing on the second charge.
By stipulation of counsel and with the permission of the trial court, it was agreed that the motion to suppress the evidence referred to would be decided by the court on the basis of the testimony admitted at the trial. Thus no affidavits were presented in support of, or in opposition to, the motion to suppress.
When the state rested its case, appellant presented his motion to suppress certain evidence in the absence of the jury. After hearing lengthy arguments by both counsel, the trial court ruled that appellant had been illegally arrested and granted his motion to suppress as evidence all items taken from the automobile which had been admitted in evidence over appellant’s objection. These items all related to the burglary tools charge, including a dismantled German Luger pistol, all of which were found in the car.
The trial court then dismissed the first charge against appellant for lack of sufficient evidence to go to the jury, but denied appellant’s motion to suppress the prescription for narcotics, which was the basis of the second charge.
At that time, the following colloquy took place between the court and counsel:
Mr. Nuxoll: Thank you, Your Honor, and I will prepare an Order accordingly. Next we move that all of the testimony as it relates to the possession of burglary tools be stricken and the Court instruct the jury to disregard all of that testimony. I think that properly would come in the instructions, but in the event the motion is necessary on this, I would like to make this motion at this time, Your Honor.
The Court: I assume an instruction will be presented to that effect. You may argue that motion now or take it up on objections to instructions, whichever way counsel prefers.
*54Mr. McMannis: It doesn’t matter to me so long as I reserve my objection.
Mr. Nuxoll: I feel that the ruling on the part of the Court dismissing the C-850 probably cures any problem I had as far as mistrial is concerned on the admission of the weapon and statements of counsel during the course of the opening statement, however, for the record I would like to renew those motions at this time, Your Honor.
The Court: They will be denied.
Appellant then rested without presenting any testimony. The jury was then instructed by the court, and, after hearing the arguments of counsel, the case was submitted to them on the second charge only. The jury returned a verdict of guilty. Appellant’s motion for a new trial was heard and denied and he was sentenced to 5 years’ imprisonment in the state penitentiary and to pay a fine of $2,000.
I now state in some detail the proceedings relating to the second charge of attempting to obtain narcotics by fraud, etc., in violation of RCW 69.33.380(1). The facts relating to this charge are substantially as follows:
August 14, 1962, appellant obtained a prescription for dolophine (a narcotic drug) from a doctor in the town of Palouse, claiming that he was suffering from a certain disease. Appellant gave his brother’s name instead of his own.3 Thereafter, he attempted to have the prescription filled at a drugstore in Pullman. Failing to get the prescription filled, because the drugstore did not have that particular drug, appellant proceeded to a second pharmacy in Pullman. The pharmacist at the second store (who likewise did not have the required drug) observed that the prescription seemed to have been altered by an ink spot which obliterated the part of the prescription relating to the amount of the drug to be dispensed. The second pharmacist became suspicious and informed the police of the attempt to use the prescription and also gave the *55license number of appellant’s automobile, which was an out-of-state license. Later, appellant was stopped by a police officer while driving on the Palouse-Moscow, Idaho, highway for going 30 miles per hour in a 60 m.p.h. zone, and, as the trial court ruled, was illegally arrested.
Appellant’s assignments of error No. 1 and No. 5 relate to the German Luger pistol (admitted in evidence in connection with the stricken charge of illegal possession of burglary tools) which would not now be involved in the case had the motion to suppress been considered and granted prior to trial, or had the two charges not been consolidated for trial. Appellant consented to this procedure.
The first assignment of error concerns the prosecutor’s reference in his opening statement to a “.38 caliber revolver” that was found in appellant’s automobile. The pistol (a German Luger) was among the items of evidence suppressed by the trial court, but appellant claims he could not have a fair trial on the second charge after the erroneous reference to and introduction of this immaterial and prejudicial evidence in regard to the first charge. The state claims the pistol was proper evidence relating to the charge of illegal possession of burglary tools, and, under RCW 9.19.050, it would be material for the purpose of showing an unlawful intent on appellant’s part to use the tools.
In my opinion, these two assignments are not available to appellant because, after the trial court had sustained his motion to suppress the items admitted in evidence relating to the burglary tools charge and had dismissed that charge, as shown in the above-quoted portion of the statement of facts, appellant’s counsel stated that he was of the opinion that the dismissal of the burglary tools charge cured any problem as to his objection to the admission of the weapon and his motions for mistrial. He nevertheless, renewed those motions for the record without argument and the court denied them.
Furthermore, the trial court instructed the jury very plainly that they were to disregard all evidence relating *56to the burglary tools charge. The pertinent portions of the court’s instructions are as follows:
In the first instruction the court read the information charging appellant with unlawful possession of burglary tools and then stated
This charge has been removed from your consideration by the Court. You are to wholely disregard it, together with all testimony or evidence relating to it.
The elimination from the jury’s consideration of all matters relating to the burglary tools charge was further emphasized in the following two instructions:
Instruction No. 12. You are the exclusive judges of the facts and of the effect and value of the evidence, but you must determine the facts from the evidence produced here in this Court. If any evidence was admitted and afterwards was ordered by me to be stricken, you must disregard entirely the matter thus stricken, and if any counsel intimates by any of his questions that certain facts exist or do not exist, you may disregard any such intimation and must not draw any inference from. it. You must not regard such statement of counsel as evidence; provided, however, if counsel for both sides have agreed upon and stipulated to any fact, you are to regard that fact as being conclusively proven; and, if in the. trial either party has admitted a fact to be true such • admission may be considered by you as evidence in the case.
Instruction No. 16. You are instructed that the charge of possession of burglary tools has been withdrawn from your consideration. All exhibits dealing with that charge have been stricken and are also withdrawn from your consideration. The only exhibits which remain to be considered by you are the following: Plaintiff’s Exhibits “A” and “B”, and Defendant’s Exhibits “1”, “2”, and “3”. You are instructed and admonished to disregard all exhibits and all information obtained from viewing any exhibits which have been stricken. You are further instructed and admonished to disregard all testimony concerning the stricken exhibits, or concerning the charge which has been withdrawn, together with any and all inferences, or insinuations from any such testimony. You shall confine your deliberations solely to testimony *57and/or evidence, if any, relating to the charge of attempting to obtain narcotics by fraud.
As indicated above, it was contemplated by both counsel and the trial court that these matters relating to the suppressed items of evidence and appellant’s various motions for mistrial in connection with the charge which was dismissed would be covered in the court’s instructions to the jury. Appellant took no exceptions to any of the court’s instructions.
In the absence of some basic reason for holding otherwise, this court will assume that the jury followed the trial court’s instructions. Regenvetter v. Ball, 131 Wash. 155, 229 Pac. 321 (1924). Under the record in this case, 1 am unable to say that the admission of the German Luger pistol in relation to the first charge (later dismissed) was so prejudicial that its effect upon the second charge, if any, could not have been cured by the clear and positive instructions above quoted.
My previous discussion concerning assignments No. 1 and No. 5 makes it unnecessary to discuss assignments No. 2 and No. 3 in any detail. These relate to appellant’s motions for mistrial based on the prosecutor’s references in his opening statement to appellant’s prior convictions for burglary. As above mentioned, appellant’s counsel apparently recognized that the trial court’s dismissal of the burglary tools charge “probably” cured any basis for a mistrial on the second charge. His motion was then renewed “for the record” and denied by the trial court. As I view it, there was clearly no error in this ruling.
There remains for consideration assignments No. 4 and No. 6, which have to do with the charge of attempting to obtain narcotics in violation of RCW 69.33.380(1), which reads as follows:
(1) No person shall obtain or attempt to obtain a narcotic drug, or procure or attempt to procure the administration of a narcotic drug, (a) by fraud, deceit, misrepresentation, or subterfuge; or (b) by the forgery or alteration of a prescription or of any written order; or (c) by the concealment of a material fact; or (d) by the use of a false name or the giving of a false address.
*58As to the charge of attempting to obtain a narcotic drug by alteration of a prescription in violation of the statute above quoted, there was substantial evidence which, if believed by the jury, would support its verdict of guilty.
I concur with the majority in holding that the trial court did not err in denying appellant’s motion to suppress the prescription as evidence because the record shows that it was admitted in evidence at the trial without objection. However, as indicated above, I find no adequate ground for reversing and granting a new trial in this case.
Under these circumstances, I think that this court should hold that the trial court did not err in denying appellant’s motion for mistrial at the close of the state’s case.
Since the majority is remanding this case for a new trial on the second information charging appellant with attempting to obtain a narcotic drug by fraud, deceit, misrepresentation or subterfuge and/or alteration of a prescription, one more matter should be mentioned. The state’s first witness, the doctor who issued the narcotics prescription, testified without objection that she did so because she feared violence from appellant based on her suspicion that he was possibly a narcotics addict. No error is assigned to the admission of this evidence. Nevertheless, the majority mentions this testimony twice as one of the reasons for granting appellant a new trial. Have we reached the point in criminal appeals where this court is going to consider as reversible error matters which have not been assigned as error by appellant’s counsel? Furthermore, on the new trial, is the trial court to consider itself bound to sustain an objection to this testimony of the lady doctor regarding this pertinent reason for her issuing the prescription. I think that the majority should make it clear that it is not prejudging the question of the admissibility of this testimony, if offered on the new trial.
Since I can find no reversible error committed in appellant’s trial. I would affirm the judgment and sentence.
Rosellint^ C. J., concurs with Donworth, J.
See State v. Lee, 62 Wn.2d 228, 382 P.2d 491 (1963).