People v. MacK

California Court of Appeal Apr 23, 1959 No. Crim. 6420, 6421Published

Before: Vallee

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Holding. The court affirmed the defendant's convictions, holding that a variance between the date of the offense alleged and the proof provided is immaterial if the defendant is not misled, and that a police officer with specialized training may testify as an expert regarding narcotics influence.

Issues

Whether a variance between the date of the offense alleged in the information and the proof at trial constitutes a fatal error.
Whether the corpus delicti was sufficiently established to admit the defendant's extrajudicial statements.
Whether a non-medical police officer is qualified to testify as an expert regarding a person being under the influence of heroin.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The test of the materiality of a variance is whether the indictment or information so fully and correctly informs the defendant of the criminal act with which he is charged”

“The qualification of a person to testify as an expert witness is a matter within the sound discretion of the trial court”

“The testimony of Officer O’Grady with respect to Barbara’s condition and his opinion that she was under the influence of heroin was sufficient to establish that someone had furnished her with heroin.”

VALLÉE, J.

In Number 6421 defendant was charged in three counts with forgery. On November 9, 1954, he pleaded guilty to count I, was granted probation, and the other counts Avere dismissed. On January 15, 1958, probation was revoked. The matter was ordered heard Avith Number 6420. Defendant Avas sentenced to state prison. He appeals from the judgment, from what he terms “the order denying probation,” and from the order denying a new trial.

In Number 6420 defendant was charged with having furnished heroin to Barbara Burns, a minor of the age of 19 years, “on or about” October 1, 1957, and sentenced to state prison. On May 19, 1958, in a nonjury trial, he was found guilty. He appeals from the judgment, from an order denying probation, and from the order denying a new trial. The orders denying probation are not appealable

(People

Grace,

166 Cal.App.2d 68, 71 [332 P.2d 811]) and the appeals therefrom Avill be dismissed.

Number 6420

On January 7, 1958, about 10 p. m., Officer Allen arrested Barbara Burns, a minor 19 years of age. At the time, Barbara had hypodermic marks Avhieh appeared to be recent on her hands; her sldn had been punctured by a hypodermic needle; her eyes were sluggish, watery, and red, and reacted slowly to light. Without objection the officer testified “she was under the influence in my opinion of heroin, or barbiturates of some sort.”

Officer 0 ’Grady had been attached to the narcotics division of the Los Angeles Police Department about 10 years. During that time he had participated in over 3,000 arrests. He had observed people injecting various types of opiates intravenously, subcutaneously, and intramuscularly. He had observed them before, during, and after the injection of the narcotic in the opiate group; he had also watched them using cocaine and marijuana. For 10 years he had studied numerous Avorks on narcotics, had attended classes on the subject, and had studied narcotic addicts. He holds a certificate to teach narcotics at the junior college level in California; teaches at Bast Los Angeles Junior College; and gives instruction on

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People v. MacK

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