People v. Silvestri

KAUFMAN, P. J.

Defendant appeals from a judgment of conviction entered on a jury verdict finding him guilty of possessing heroin in violation of Health and Safety Code, section 11500.

At approximately 7:30 p. m. on January 4, 1956, the defendant, Joseph Silvestri was standing on the corner of First and Willow Streets, in San Jose, with his brother, Ralph Silvestri. Ralph Silvestri was ill and vomiting. This caught the attention of Police Officer Barnett who then approached the defendant and his brother and inquired who they were and what they were doing in San Jose. The defendant and his brother stated that they had come to San Jose to contract for decorating work with one Ragone. On their way back into town from Ragone’s house the lights of their car went out. Therefore, they left the car at a service station at Second and Key Streets and planned to return to San Francisco by bus. Officer Barnett then left, but decided to check their car. When

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he arrived at the service station at Second and Key Streets, he observed a traffic violator and went to cite him. After Officer Barnett left the defendant and his brother called a taxicab to take them to the bus depot. They had just entered the taxicab when they were accosted by Officers Ballard and Sims, and were again questioned. After telling Officers Ballard and Sims what they had told Officer Barnett, the defendant and his brother proceeded to the bus depot.

Officer Ballard testified that his reason for stopping the defendant and his brother was “that they looked suspicious to us. ’ ’ Officer Ballard further testified that the Green Frog Market had been robbed on the evening of January 3, 1956, by a man who was described as “Five eight, around 35 to 40, Italian or Portuguese descent, with pock marks on his face,” and that in mentally checking this description, the defendant and his brother seemed to fit, although neither one had pockmarks. Officers Ballard and Sims also had information about a 1930 or 1934 grey Dodge coupé without license plates which had been used to “ease” a Lucky Market on December 27, 1955. After questioning the defendant and his brother, the officers proceeded to cheek the defendant’s car which was a 1936 grey or tan Dodge coupé with license plates. After looking at the car, the officers radioed Officer Barnett, informed him of the robbery of the Green Frog Market and agreed to meet him at the bus depot for further questioning of the defendant and his brother. First, the defendant and his brother were questioned in front of the bus depot by all three officers. Then, the defendant and his brother were questioned separately, as one of the officers believed there were discrepancies in their answers. Officers Sims and Ballard questioned the defendant and Officer Barnett questioned Balph Silvestri. Officer Ballard testified that at this time he observed that the pupils of defendant’s eyes were contracted and that this indicated to him that the defendant was possibly under the influence of a narcotic drug. The answers of the defendant and his brother caused the officers to feel that they were not telling the truth. After a cursory search for weapons, the defendant and his brother were apparently arrested without a warrant as robbery suspects and taken to the San Jose police station, the defendant was searched by Officer Ballard and an object later identified as a heroin capsule was found in a package of cigarettes belonging to the defendant. The defendant first denied any knowledge of the capsules in the cigarette package and then admitted that they contained heroin and that he had been using the drug for three years. The defendant was then