People v. MacCagnan

Convicted of having had in his possession “flowering tops and leaves of Indian Hemp,” familiarly called “marijuana,” (Health & Saf. Code, §11500) a narcotic, defendant seeks a reversal on the grounds of (1) the insufficiency of the evidence to prove he had knowledge of his possession of the contraband; (2) errors in rejecting appellant’s offered instructions on (a) knowledge, (b) giving other instructions, (e) accusatory statements; (3) error in receiving evidence of value of contraband; (4) error in the prosecutor’s telling the jury defendant admitted his guilt; (5) error in proceeding on an indictment (No. 160110) charging same offense as that alleged in the information (No. 157170) which had been based upon the commitment by the municipal court and which information was still pending; (6) error in denying motion for new trial.

Before relaying the story of appellant’s experiences and his clash with the law, it will serve to illuminate other refer

Pacts Prove Knowledge

Officer Cowan accompanied by officer Samuelson arrested appellant in a drunken condition at 11:45 p.m. June 7, 1953 at a cafe in Long Beach. They transported him to the city jail and escorted him to the booking lobby. Appellant seated himself on a bench where Cowan observed him fumbling with his right sock. He told the jailers to look in the prisoner’s hosiery. As he removed his right sock, pursuant to the jailer’s instructions, Officer Turley asked to see what the accused had. Not only did the latter refuse to display the object he held, but thrust his hands into his pockets and refused to withdraw them. When Officer Leslie attempted to take appellant’s hands from his pockets, in the midst of the violent struggle of the jailers with the prisoner, Officer Cowan reached through the slit in the coveralls and removed the red package of “Pall Mall” from the crotch of the

The foregoing recital was substantially the evidence of officers Cowan, Leslie and Turley. Officer Simonds, expert chemist, testified that the leafy material of the cigarettes was marijuana.

Appellant resisted search; attempted to conceal the cigarettes and exerted himself to the limit to prevent their recovery by the officers and never denied that the red package was his own. The lawful right to search a prisoner at the time of arrest (Bruce v. Sibeck, 25 Cal.App.2d 691 , 696 [ 78 P.2d 741 ]) implies the correlative duty on the part of the prisoner to submit to the search. When one owes a duty to the state and defies its agencies to enforce performance of such duty, no reasonable inference can be drawn other than that the prisoner was conscious of a knowledge of his guilt. Appellant’s refusal to deliver the red package to his captors, and his resistance to search in the city jail, justified the jury in finding (1) that he knew his package contained the narcotic, which fact the chemist discovered (Pe ople v. Gory, 28 Cal.2d 450 , 454 [ 170 P.2d 433 ]), and (2) that his wilful interference with the performance of official duty was proof of his wilful possession of the contraband. (P eople v. Tomalty, 14 Cal.App. 224 , 235 [ 111 P. 513 ].) A prisoner’s secret knowledge of the illegal character of narcotics in his possession is “sufficiently shown by the conduct and behavior” of the accused in attempting to secrete them. (People v. Tennyson, 127 Cal.2d 243 , 246 [ 273 P.2d 593 ]; People v. Batwin, 120 Cal.App.2d 825 , 827 [ 262 P.2d 88 ]; People v. Walker, 121 Cal.App.2d 173 , 175 [ 262 P.2d 640 ].) That the conduct of a person accused of crime immediately after his commission of the act charged is proper evidence, is too well established to be challenged. (People v. Flannelly, 128 Cal. 83 , 87 [ 60 P. 670 ].) Attempts to escape, to hide, to evade a peace officer or to conceal from an arresting officer a contraband object in his possession are pertinent proofs of a guilty mind. (Ibid.) Consciousness of guilt may be inferred from an attempt to avoid apprehension. (People v. Dabb, 32 Cal.2d 491 , 500 [ 197 P.2d 1 ].)

Appellant takes comfort from his assumption that the jury knew that he had no knowledge of the presence of the marijuana cigarettes in his red package. He contends that, because

Instructions Not Prejudicial

Appellant assigns as prejudicial the alteration of his instruction 33 as follows:

“It is an essential fact which must be proved beyond a reasonable doubt that the Defendant had knowledge that the article found on him was marijuana. You must acquit the Defendant if the People fail to prove beyond a reasonable doubt that he knew this article was marijuana while it was in his possession-, if you find it was in his possession.”

Before the modification, the italicized phrase “while it was in his possession” was “at the time it came into his possession.” The change was proper. There is no evidence of when, where or how the marijuana reached appellant’s possession. Because there was proof that it was in his possession, the change was free from error.

The giving of C-35 is assigned as prejudicial. It is as follows: .

“You are instructed that a violation of Section 11500 of the Health and Safety Code, does not require that the defendant acted with any particular purpose, motive, or intent. All that is required, is for you to find, beyond a reasonable doubt, that the defendant knowingly possessed a narcotic. That is, that he knew he had the substance and that he knew it was a narcotic.”

No suggestion is made as to how the instruction prejudiced appellant. Standing alone it is harmless; when read as a part of the entire charge, its benefit is readily apparent. (People v. Tolmachoff, 58 Cal.App.2d 815 , 825 [ 138 P.2d 61 ].) Guilt is founded upon defendant’s conscious possession of a substance he knew to be a narcotic. (People v. Gory, supra; People v. Martin, 76 Cal.App.2d 317 , 319 [ 172 P.2d 910 ].) “The statute provides that mere possession of marijuana shall subject the possessor to the penalties prescribed.” (People v. Rumley, 100 Cal.App.2d 6 , 9 [ 222 P.2d 913 ].)

Complaint is made of the court’s rejection of nine

The instructions found on pages 32 and 39 of the clerk’s transcript, given at appellant’s request, fairly cover the points embraced in the above nine rejected instructions. Those two directed the jury that to justify a conviction they must find from the evidence (1)' that defendant knew he had marijuana in his possession, (2) that he knew it while he had possession; (3) that he was physically and mentally conscious and capable at the time of perceiving and understanding the presence and nature of the narcotic he had.

The instructions given adequately cared for the fact of defendant’s conscious knowledge. Their significance and value were not erased by virtue of the court’s instructing on the law with reference to voluntary intoxication’s not rendering an offense anytheless criminal when committed during intoxication. No instruction given violated the doctrine announced in People v. Gory, 28 Cal.2d 450 , 455 [ 170 P.2d 433 ].

Appellant contends that it was prejudicial error to reject his proposed instruction “that if you have a reasonable doubt that defendant . . . was given or received marijuana cigarettes in a package of one of the standard brands of cigarettes made of tobacco and retained it in his possession in the honest and innocent belief that it was a package of that brand of cigarettes, then you must find defendant . . . not guilty. ’ ’ He asserts that the error lies in the- fact that the “evidence shows that marijuana cigarettes were contained in a package of one of the standard brands of cigarettes and there is a reasonable doubt that defendant must have retained that package in his. possession in the honest and innocent

No Error in Admitting Evidence of Value of Marijuana

Assignment is made of the court’s having received over objection testimony that the four marijuana cigarettes found in appellant’s possession on the day of his arrest were worth one dollar each. There was no error in the ruling. The purpose of the evidence was to rebut the suspicion that some one might have made a gift of the cigarettes without telling appellant. If there was error in the admission of the evidence or in the court’s instruction thereon, still the jury could have acquitted. The testimony might have suggested to the jury that the court believed some stranger slipped

Instructions on Accusatory Statements Not Erroneous

The only spoken words of appellant after arrest were his reply to officer Samuelson when the officer asked the accused whether the red package was the latter’s cigarettes. The reply, “I don’t smoke that brand” was an evasive answer. The officer’s question to appellant was whether the cigarettes in the red package were his. There was no reference to brand. But the prisoner, sober enough to engage in subterfuge, avoided giving a direct answer. The jury were there to determine whether the “conditions in which appellant was confronted with it” (the question) fairly afforded “him an opportunity to reply by reason of the fact of his drunken condition. ’ ’ They were fairly instructed with reference thereto : “if you should find that he heard the accusations and understood its nature, the circumstances of his silence (and conduct) may be considered against him as indicating an admission that the accusation thus made was true.” Declarations of a prisoner under the influence of intoxicants are not rendered inadmissible by reason of his drunkenness. That condition “would go only to the weight of the evidence.” (People v. Sameniego, 118 Cal.App. 165 , 176 [ 4 P.2d 809 , 5 P.2d 653 ]; People v. Dorman, 28 Cal.2d 846 , 854 [ 172 P.2d 686 ].)

Trial on Indictment, Information Pending

Appellant deems himself aggrieved because the court received and filed on November 10, 1953, the indictment charging the same facts and offense alleged in the pending information, filed early in the same year. His grievance is augmented by the fact that for five weeks both accusations were pending and appellant was under bail in both; that in October 1953 respondent filed a request that the Supreme Court issue a peremptory writ, without prejudice to proceeding by means of a new preliminary hearing or indictment.

On December 16, 1953, the information (No. 157170) was dismissed in the interest of justice. Since the trial court was authorized so to dismiss the information (Pen. Code, §§ 1385, 1387) no prejudice was suffered by its dismissal. That the offense alleged in the indictment was the identical crime charged in the information was not material to the proceedings on the indictment. Hence the trial on the indictment was in order. The mere fact that the same offense was

Motion fob New Trial Properly Denied

Appellant based his motion upon the affidavits of witnesses O’Donnell, Shibley and Attorney Marshall, counsel for defendant. O’Donnell deposed that during early June 1953 he was a prisoner in the Long Beach jail; saw an officer strike appellant; watched appellant and the officers; saw no one take anything out of appellant’s shoes or clothing; never saw an officer show appellant a package of cigarettes; never heard a mention of any narcotic. But when he was called to the stand, O’Donnell testified he “was not paying too much attention” and “I can’t be too definite about it.” From the affidavit and testimony of O’Donnell and Shibley, it was made clear that O’Donnell was in the “tank” during the trial, February 10 and 11, 1954, and that the court had on the application of Attorney Marshall, signed an order for the production of O’Donnell as a witness. Therefore, he was available as a witness at the trial. The jailer of Long Beach testified that O’Donnell was not in that jail when appellant was booked. Withal, the court found from the jail’s records and O’Donnell’s testimony that he was not there and could not have seen anything that occurred to appellant in the jail at Long Beach June 7 or 8, 1953. Therefore, since the affidavit of O’Donnell was overcome by his own testimony and by other proof (People v. Curtis, 104 Cal.App.2d 219 , 223 [ 230 P.2d 877 ]; People v. Rushing, 130 Cal. 449 , 454 [ 62 P. 742 , 80 Am.St.Rep. 141 ]), and since the “new evidence” was not true, the motion for a new trial was properly denied. (People v. Ross, 120 Cal.App.2d 882 , 889 [ 262 P.2d 343 ]; People v. Frankfort, 114 Cal.App.2d 680 , 706 [ 251 P.2d 401 ]; People v. Freeman, 92 Cal. 359 , 365 [ 28 P. 261 ].)

The judgment and the order denying appellant’s motion for a new trial are affirmed.

McComb, J., and Fox, J., concurred.

A petition for a rehearing was denied December 2, 1954, and appellant’s petition for a hearing by the Supreme Court was denied December 22, 1954. Schauer, J., was of the opinion that the petition should be granted.