People v. Smyre

California Court of Appeal Oct 16, 1958 No. Crim. 3424Published

Before: Kaufman

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Holding. The court held that the evidence was sufficient to support the convictions for possession and sale of heroin, and that the police entry into the defendant's hotel room was lawful based on valid consent.

Issues

Whether the evidence was sufficient to support the convictions for possession and sale of heroin.
Whether the trial court erred in submitting multiple counts to the jury and dismissing one after the verdict.
Whether evidence obtained by the police was the result of an illegal search and seizure.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The entry of the officers into the room was made with proper consent and not unlawful.”

“It follows that there was no unlawful search and seizure of the items complained of and that they were properly introduced into evidence.”

“No prejudicial error appearing in the record before us, the judgment must be affirmed.”

KAUFMAN, P. J.

On February 5, 1957, the defendant and one Mary Frazer were charged by information with the possession of heroin on January 18, 1957, in violation of Health and Safety Code, section 11500. The information was amended to allege three prior convictions as to Mary Frazer and one prior conviction as to the defendant for violation of Health and Safety Code, section 11500. The defendant entered a plea of not guilty and denied the prior conviction. Mary Frazer entered a plea of not guilty and admitted the prior convictions. On March 7, 1957, defendant was charged by indictment with two counts of violation of Health and Safety Code, section 11500; one, for the possession of heroin on February 20, 1957, and the second, for the sale, furnishing or giving away of heroin on February 20, 1957. The indictment was amended to also charge a prior conviction. On April 5, 1957, defendant entered his plea of not guilty to each count of the indictment and denied the alleged prior conviction. Trial date was set for June 10, 1957. On June 10, 1957, the information was dismissed as to Mary Frazer, under Penal Code, section 1099, on motion of the district attorney. By permission of the court the indictment and information as to the appellant were consolidated for trial. The defendant changed his plea to admit the prior conviction charge.

At the trial, after the conclusion of the prosecution’s case in chief, the defendant moved to strike certain evidence, for an advised verdict on the information, and for a dismissal of

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the possession charge of the indictment. All of these motions were denied. No evidence was offered on behalf of the defendant. A jury trial resulted in a verdict of guilty on both counts charged in the indictment and on the charge of the information. On June 14,1957, the court granted defendant’s motion to dismiss the possession count of the indictment and denied defendant’s motions for a new trial and in arrest of judgment. Defendant was sentenced to consecutive terms on the remaining two charges for the possession charged in the information and the sale and furnishing charge of the indictment. This appeal is taken from the judgment of conviction, the order denying a new trial and the order denying the motion for arrest of judgment.

On appeal defendant urges that the following prejudicial errors compel a reversal of the judgment.

People v. Smyre

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KAUFMAN, P. J.

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