People v. One 1940 Buick Sedan

WARD, J.

The State appeals from an order and judgment of nonsuit in a proceeding instituted by the State to forfeit an automobile pursuant to Health and Safety Code section 11610.

Both the registered owner, Samuel W. Harrison, Jr., and the legal owner, Fidelity Acceptance & Thrift Company, filed answers as claimants and interveners which denied that the automobile was used unlawfully, and as a separate defense the finance company alleged that it had made a “reasonable investigation ... as to the moral responsibility, character and reputation” of Harrison, the purchaser, as provided for by Health and Safety Code section 11620. At the close of the presentation of the State’s evidence regarding the unlawful use of the car, motion for nonsuit on behalf of claimants and interveners was granted. Therefore the only issue presented concerns the sufficiency of the evidence to sustain a forfeiture under the statute.

Section 11610 provides: “A vehicle used to unlawfully transport any narcotic, or in which any narcotic is unlawfully kept, deposited or concealed, or in which any narcotic is unlawfully possessed by an occupant thereof, shall be forfeited to the State.” In brief, the statute may become operative on (1) transportation of any narcotic, (2) keeping, depositing or concealing any narcotic, (3) possession of any narcotic if the possessor is an occupant of the vehicle. The notice of seizure and intended forfeiture proceedings, used under the statute in lieu of the ordinary complaint, charges that the vehicle herein “was used to unlawfully conceal, convey, carry or transport Narcotics, to-wit: Marihuana” etc.

[162]

The last provision, which for convenience may he designated (3)—possession by an occupant—should, .in view of this notice of seizure play no part in the determination of the issues in this ease. The notice of seizure contains no reference to possession by an occupant. If there was transportation, with or without concealment, the section may become operative and the automobile forfeited to the state. The word “occupant” does not modify each of the three clauses. A reasonable construction forbids the implied use of the word as a modification of the previous designated uses of the vehicle.

The evidence shows that an inspector for the Division of Narcotic Enforcement testified that he had seized the ear, located in front of a hotel or apartment on Post Street near Buchanan in San Francisco on the date alleged in the notice of seizure, from Samuel W. Harrison, Jr. Prior thereto the inspector, in company with another inspector and a police officer had visited the sleeping quarters of Harrison and interviewed him and one Jim McCaw, and searched the premises. In a suit case “minor traces of marihuana” were found, and in a suit of clothes, admittedly the property of Harrison, a bunch of keys, which Harrison said also belonged to him. One of the keys opened the door of Harrison’s automobile, locked and with the windows tightly closed, then parked in front of the hotel. Without objection the inspector testified that Harrison said he had locked and parked the automobile. The inspector searched the car. In an ash tray which he pulled out from the dashboard were found a number of ordinary cigarette “butts” beneath which was a marihuana cigarette which had not been smoked. The inspector testified that Harrison stated “that the night before he and this Jim McCaw