People v. Johnson

GOODELL, J.

This is an appeal from a judgment of conviction entered on a verdict, and from an order denying a new trial.

By an amended information appellant was accused of the sale of marijuana (Health & Saf. Code, § 11500) to which charge he pleaded not guilty.

Appellant was represented on his arraignment and throughout the trial by an assistant public defender, but filed this appeal in propria persona and prosecutes it without the aid of counsel.

On July 14, 1949, between 9 and 10 p. m., Officer Finis of the San Francisco Police Department’s Bureau of Special Services, or “Vice Squad,” dressed in plain clothes, while standing in the doorway of a poolroom in San Francisco, was spoken to by appellant who, according to the officer’s testimony, asked him if he was “straight.” This expression, according to the testimony of another witness means colloquially “ ‘Have you some narcotics,’ or ‘do you want some,’ it is

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used interchangeably. That is an opening statement to the prospective customer or to someone you would like to buy from ...” The officer replied that he wanted a can of marijuana cigarettes, not just a few, as he was a merchant marine and had a chance to make some money with them on the ship; appellant responded that “he might be able to fix me up” and that the can would cost $20 but he would have to go and get it; they “argued about the price and finally rather than go off, I agreed to take six marijuana cigarettes for $5 . . . He sold me the cigarettes in the men’s toilet in the back of the pool room.” A $5.00 bill was paid by the officer, with no third person present. The officer testified that he took the cigarettes and left, agreeing to meet appellant the following day at 1:15 or 1:30, at which time appellant said he could procure the can of marijuana. The officer testified that at the appointed time the next day appellant failed to show up.

The six cigarettes were analyzed and identified as marijuana.

The officer next saw appellant on the evening of July 18 at the same poolroom. Again the officer was alone and in plain clothes but Inspector Noel of the State Narcotics Department was waiting down the street. On this occasion appellant said he could still get the can of marijuana and that it would cost $20. The officer then said, “I don’t have enough to make a $20 purchase, but my partner is out on the street on the corner waiting and perhaps we can pool our money to buy enough.” Officer Finis and appellant then joined Inspector Noel on the street and appellant told them he would have to go to Third Street to get the stuff. As appellant hailed a taxicab the two officers placed him under arrest for selling narcotics. They searched him but found no marijuana. Inspector Noel testified that appellant said “Can you give me a break” to which he replied “Give you a break, what for— for selling marijuana? . . . why did you sell marijuana to this San Francisco Police Officer previously?” to which appellant replied “Well, he was a colored man and I was a colored man and I was just trying to do him a favor. ’ ’