People v. One 1941 Chrysler Tudor

PETERS, P. J.

This proceeding was instituted by the state under section 11610 et seq. of the Health and Safety Code to forfeit the interests of Christine Gibson, the registered owner, and the Pacific Finance Corporation, the legal owner, of a certain 1941 Chrysler Tudor Sedan, on the ground that such vehicle was used unlawfully to conceal, convey, carry or transport marihuana in violation of the provisions of the Health and Safety Code. The finance company did not appear, and its default was duly entered. Christine Gibson defended the action, contending that she had no knowledge of the illegal use and that on the date of the seizure, June 3, 1944, the car was being used without her knowledge and consent. From a judgment forfeiting her interest, Christine Gibson appeals.

The automobile was seized on the evening of June 3, 1944. It was then in the possession of Dominie Germano, to whom Christine Gibson was engaged to be married. The arresting officer testified that he and his fellow officer saw the car being driven north on Mason Street, in San Francisco, by Germano; that Germano parked the car, alighted and entered a hotel

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lobby; that he was in the hotel “just an instant; just in and right out again”; that Germano then reentered the car and started the motor, when the witness and his fellow officer arrested him. When Germano was searched, one marihuana cigarette was discovered hidden in one of his socks. Germano told the officers that he had picked up the cigarette from a hiding place shortly after he left the bar he operated; that the car was not his but belonged to his girl friend, Miss Gibson; that Miss Gibson had found it necessary to go to Los Angeles, and, because his car was in better mechanical condition, he had allowed her to take his car while he drove hers. The police officer, in response to a question by the court, stated that Germano had the cigarette in his sock before he drove up to the hotel.

Miss Gibson filed an answer in which she alleged that she loaned the vehicle to Germano on June 3, 1944, “without knowledge and without any reason to suppose that said vehicle was to be used in any manner not legal,” and that she did not know that Germano used marihuana. Several months later she filed an amended answer in which she alleged that she had not loaned the car to Germano on June 3d, but that on the 31st day of May she turned her car over to him on his express promise to take it to a designated garage on June 1st to have it repaired. No explanation of this complete change in theory appears in the record. In support of the defense set forth in the amended answer she testified that she had purchased the car in question sometime in May, 1944; that on May 31st she found it necessary to go to Los Angeles to visit a sick cousin; that her ear had a defective seat control and that the clutch stuck; that she telephoned the Mill Valley company that had sold her the car; that she was informed that it would take several days to make the repairs and that such work could start on June 1st; that Germano agreed to allow her to use his car to drive to Los Angeles and agreed to drive her car to the garage on June 1st; that she was in Los Angeles on June 3d and believed at that time the car was at the garage. Germano testified that Miss Gibson made an appointment for him to take the ear to the garage on June 1st; that he promised to take the car there on that date, but that he had not done so. The garage employees were not produced as witnesses.