People v. Newman

NOURSE, P. J.

This is an appeal from an order denying defendant’s motion for a new trial and from a judgment of conviction of defendant and appellant, Ivory Newman, of a violation of section 11500 of the Health & Saf. Code, pos

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session of a narcotic, marijuana. Two prior convictions for violation of section 11500 were dismissed on the motion of the district attorney. Trial by jury was waived.

On July 4, 1953, at 11:30 p. m. two officers of the Oakland Police Department and a member of the district attorney’s office entered Newman’s apartment in Oakland for the purpose of searching for narcotics. Defendant and his wife were in bed in the combination living room and bedroom and a friend, Robert Cain, was sleeping on a sofa.

The officers searched the apartment. In the pocket of a brown corduroy jacket hanging in a closet the police found marijuana cigarettes. Cain said the jacket was his but denied that the marijuana cigarettes belonged to him. Hanging in the same closet the police found another brown corduroy jacket almost identical to the one owned by Cain which defendant claimed belonged to him. The officers found no other evidence in the apartment with the exception of some Bull Durham wrappers. Both Cain and defendant denied ownership of the marijuana and both were taken to the city jail.

On July 6, 1953, at the city jail, Officer Vaughn had a conversation with defendant and Cain, part of which was recorded by Officer Vaughn on a typewriter and admitted in evidence at the trial of defendant as a confession. The pertinent part of this conversation follows:

“Vaughn: Q. Did both of you smoke marijuana that night?

“Newman: I did, I smoked one joint.

“Cain: No sir, I was laying down on the bed sleeping.

“Newman: Well, that’s my stuff, you go and cut him loose.

“Vaughn: Q. Did Cain have any connection with the marijuana at all?

“Newman: No, he did not. Q. How did the marijuana get in his jacket ? A. Well, I got the same colored jacket, and I thought the jacket was mine, so I put it in there. I’ll tell you Mr. Vaughn I never have sold any stuff, I get marijuana for my personal use. Those joints would have lasted me for a long time.