People v. Hamm

SHINN, P. J.

Robert Donald Hamm was charged with the wilful, unlawful and felonious possession of a preparation of

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heroin (Health & Saf. Code, § 11500), and with a prior felony conviction, to wit, attempted robbery. Defendant denied the former conviction. Trial was to the court and the evidence consisted of that received at the preliminary hearing and additional evidence introduced at the trial. Defendant was represented by counsel. The court found defendant guilty and also found the charge of prior conviction to be true. He appeals from the judgment and an order denying him a new trial.

There was evidence of the following facts: At about 7 :30 p. m. on March 1, 1956, plain-clothes officers White and Northrup were driving northward in an unmarked ear on Towne Avenue in the city of Los Angeles. Officer White testified that it was dark and that the only artificial lighting came from the car headlights. He observed defendant and one Rollins walking southward on Towne. Defendant was nearest the curb. His attention was directed to the men by defendant’s apparent nervousness. As the car approached, White saw defendant make a backhand flipping motion with his right hand and noticed a light object leave his hand. Rollins did not make a throwing motion. White got out of the car and discovered a cellophane bindle lying on the parking strip in the dirt next to the curb. The bindle was beside a parked car about three feet from where defendant was standing when he threw it. Both men’s arms were examined; old needle marks were found on Rollins’ arms; none was found on defendant. Officer White placed the bindle in an envelope, sealed it and sent it to the central property police officer where it was examined the next day by Jay Allen, a police chemist. Allen testified that he opened the envelope and found it to contain seven paper bindles, each one holding a quantity of powder. He analyzed the powder and determined it to be heroin.

Defendant, testifying in his own behalf, stated that while he and Rollins were walking southward on Towne Avenue, they were stopped by two plain-clothes policemen. The officers asked him if he was a narcotics user. He told them he had been but had quit it. The officers then examined both men for needle marks. They found none on defendant, but one of the officers accused defendant of being under the influence of narcotics. The officers were about to let them go when one suggested that defendant and Rollins might have dropped something. The officer searched the area with a flashlight and discovered a small package by the curb. De