People v. Underhill

GRIFFIN, P. J.

Defendants and Appellants Charles Frederick Underhill, Daniel Martin Wynn, and Rita Irene Wynn were charged with the unlawful possession of a narcotic (marijuana) on June 20, 1958, in violation of section 11500 of the Health and Safety Code. Defendant Underhill was charged with five prior felonies, 1 and 2, altering United States money orders; 3, grand larceny, second degree; 4 and 5, White Slave Traffic Act conspiracy. They pleaded not guilty to the offenses charged. Underhill admitted prior felony conviction (No. 3) and denied the others. Defendant Daniel Wynn admitted a prior felony conviction of possession of a narcotic. Each individually waived a trial by jury, and the result was a conviction of all defendants on the offenses charged. It was found that defendant Underhill had been previously convicted of felonies 1, 3 and 4 above mentioned. Underhill and Daniel Wynn were committed to state’s prison. Rita Wynn was granted probation. Motions for new trial were denied.

Facts

About 4 a. m. on January 20, 1958, two police officers were stationed on an access road leading to the main highway about one mile north of the Mexican border. Sergeant Anson saw a 1948 or 1949 Plymouth ear, license Number HYG-812 approaching the main highway near a stop-sign intersection. The vehicle did not stop. It crossed through at about 25 miles per

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hour. The officers pursued with the red lights on their ear burning. Defendants did not then stop but did slow down. After about one-quarter mile chase they stopped and the officer flashed his light in the car and saw the occupants. Defendant Underhill was driving. Mr. Wynn was seated in front with him. Mrs. Wynn was in the rear seat. Mr. Wynn was wearing a brown and white, or dark and white striped shirt. Prior to this time Sergeant Anson had received information from a deputy sheriff Bonder, stationed at the border, involving an individual wearing a brown and white striped shirt. Bonder told Sergeant Anson that the border patrol had chased a fellow they believed had thrown some narcotic over the international fence and had lost him, and that the man was white, young, had short hair, and wore a striped shirt (brown and white). When he flashed the light on him in the ear he said he thought defendant Wynn might be this person. He was wearing a brown and white striped shirt. The officer admitted they originally pursued defendant’s car because of his failure to stop at the intersection, but testified that after defendants stopped an officer flashed his light in the car window and Underhill got out and came back and wanted to know what the trouble was; that he said: “You know what the trouble is” and Underhill said “he knew he ran the stop sign”; that he then said to him: “Who is the fellow in the car with the striped shirt?” and that defendant answered they were friends of his; that the officer then asked him if he could take a look through the ear and Underhill said “Yes”; that he then went up to it and started talking with defendant Wynn and his wife; that all of them appeared to be very nervous and it was quite noticeable; that the men began to perspire, even though it was a very cold night, and the perspiration ran down their foreheads; that he then asked Wynn to step out and he pressed the glove compartment and found it was locked; that Under-hill gave him the key to it but it would not open; that Underhill then took the key and opened it and nothing was found; that about that time all defendants were glancing at each other, appearing very nervous, looking down toward the cushion at the driver’s seat; that as the officer reached in that direction Underhill said: “I don’t know anything about that stuff”; that he lifted up the seat and found a large package about the size of a loaf of bread wrapped with cellulose tape ; that he tore it open and found what he believed to be and was subsequently proved to be marijuana; that he asked him who owned it and Mrs. Wynn and Underhill both said they knew