People v. Torres

BRAY, J.

Defendant appeals from a jury conviction of two counts of violation of section 11500, Health and Safety Code: first count, unlawful possession of heroin

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second count, unlawful possession of marijuana. He had admitted a prior conviction under the same section. He also appeals from an order denying his motion for new trial.

Questions Presented

Admission of evidence: (a) fresh needle marks; (b) evidence of prior acquaintanceship with the officers; (c) prior offense of possession of marijuana.

Evidence

June 7, 1955, about 10 p. m., Officers Hilliard and Myall of the Special Services Detail of the Oakland Police Department, while cruising in an unmarked police car, turned off Broadway into one-way 8th Street. They drove along the lane nearest the curb and saw defendant approaching them on the sidewalk about 125 feet away. When he was about 20 feet from them and apparently saw the officers, defendant quickened his pace and turned suddenly into a doorway which extended about 8 feet in from the sidewalk. The officers stopped opposite the doorway, next to some parked cars. Officer Myall turned his flashlight on defendant who was standing in the rear of the doorway facing a meter box located on the wall.

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Myall saw defendant’s left hand with a white object in it being raised above his head and over the top of the meter box, where the officer lost sight of the hand. It remained there not over five or six seconds and then defendant pulled it down empty. Officer Hilliard’s view of defendant at first was blocked by Myall. Hilliard saw defendant’s hand coming down empty from the meter box. The officers called defendant to their car. As Officer Hilliard started toward the meter box, defendant called to him, “Ted, I want to talk to you, come back . . . Why don’t you search me?” Hilliard, however, went to the box. It had no top on it. Opening the sliding door he saw a white object stuck between the box and the side of the building. It was a white paper napkin containing a “bindle” of heroin and marijuana cigarettes. An inspection of defendant’s left arm revealed fresh marks similar to those made by hypodermic needles. An inspection of his arm made three days prior revealed no such marks. Defendant denied that he had dropped the package in the box or knew anything about it or its contents. On the stand he testified that he went into the doorway because he was looking for his wife. Besides denying any connection with the package, he denied he had needle marks on his arm or even knew what heroin was.