People v. Gallagher

TYLER, P. J.

Appellant was charged by information with violation of the State Narcotic Act in having in his possession a preparation of morphine. It was also charged that appellant had suffered three prior felony convictions, one of which was a violation of the Harrison Narcotic Act. Appellant pleaded not guilty to the offense charged, but pleaded guilty to the prior convictions. The jury returned a verdict of guilty. The main contention of appellant is that the verdict is contrary to the law and the evidence. It is also claimed that the court erred in the admission of certain evidence.

There is testimony to show that certain police officers had been watching a particular residence in Redwood City where they suspected a delivery of morphine would be made. Appellant and his wife approached the residence in a Ford coupe. Narcotics were found upon the person of the wife. Both were arrested and taken to jail in Redwood City. The officers informed appellant that they had followed him all day and had witnessed him make deliveries of the morphine to various people. They accused him of being an extensive distributor of morphine and demanded that he give them information as to the location of his plant; that if he failed to do so they would visit the places where appellant had made deliveries and procure the information. Appellant, in order to protect his customers, thereupon referred the officers to a certain lodging house in San Francisco and furnished them with keys to the premises, instructing them at the same time to look in the mattress of the bed and they would find the morphine which appellant owned. The officers repaired to the designated premises and found the morphine in the place indicated. They interviewed a man and his wife who were the owners of the lodging house. The wife informed

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the officers that the room where the morphine was foijind was rented by a woman who paid the rent for the first' month. The husband testified that he received the second month’s rent from a man. He was shown a photograph and recognized it as being that of appellant. At the trial both husband and wife refused to identify appellant, who denied that he had ever used the room. !

In support of his contention that the verdict is contrary to law, appellant argues that the evidence is insufficient to show possession within the meaning of the law, as such possession must be personal and exclusively under the dominion and control of the person charged. It has bpen frequently held in this state that the possession denounced by the act need not be a personal one, it being sufficient if such possession is constructive, so long as it is immediate and exclusive and under the dominion and control of the violator.