People v. Kuykendall

MUSSELL, J.

Appellant and his codefendant Mary Ellen McGrew were charged with the wilful, unlawful and felonious possession of the narcotic marijuana in violation of section 11500 of the Health and Safety Code. Defendant McGrew pleaded guilty to the crime charged and was sentenced to imprisonment in the state prison. Appellant pleaded not guilty, admitted the four prior felony convictions charged in the information, and after trial by jury he was found guilty of possession of the narcotic as charged. His motion for a new trial was denied and he was sentenced to the state prison. He appeals from the judgment of conviction, contending that the evidence is insufficient to sustain the conviction and that the trial judge committed prejudicial error.

On June 12, 1958, Mr. Welch, owner of the Welch Apartments at 166 16th Street in the city of San Diego, in the course of gathering trash from the roof, noticed a brown paper sack in a drain pipe at the southeast corner of the roof. Welch removed the sack from the drain pipe, took it to his apartment and called the police department. The contents of the sack consisted of three bundles, each containing about 50 cigarettes and each wrapped with yellow, red and green rubber bands. Officer Wilson of the San Diego Police Department removed a cigarette from each of the bundles, made identifying marks on some of the cigarettes, dusted the bag and its contents with fluorescent powder, replaced the sack in the drain pipe and placed the roof under surveillance. At 5:23 p. m. on said date Officers Wilson and Mueller observed appellant Kuykendall emerge from a door onto the roof of the apartment house, proceed to the southeast corner of the roof, bend down out of sight, and return to the roof entrance. The officers then went to the front of the apartment house and arrested appellant, Mary Ellen McGrew, a Mr. Smith and a Miss Langley, all of whom were standing by the entrance.

The officers took these four persons into the building and up to the apartment occupied by Miss McGrew. She there emptied the contents of her purse on the table and attempted to conceal a cigarette package in her hand. This package contained five marijuana cigarettes, secured with a red rubber band. One of the officers then went to the roof and removed

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the sack which they had previously dusted with fluorescent powder and replaced in the drain pipe. The officer then found the package contained only two packages of cigarettes, bound by rubber bands, instead of three, which were in the package when it was dusted and replaced.