People v. Graves

[532]

WOOD, J.

Defendant Graves and one Pinkston were accused of the crime of violation of section 11500 of the Health and Safety Code, in that, on March 31, 1947, they unlawfully had in their possession a preparation of opium. Upon stipulation, the People’s case as to defendant Graves was “submitted on the transcript of testimony taken at the preliminary hearing and the exhibit, which exhibit is admitted in evidence and marked Exhibit No. 1, both sides reserving the right to introduce additional evidence.” Pinkston pleaded guilty. In a trial without a jury (a jury having been waived), defendant Graves was adjudged guilty. He appeals from the judgment, and asserts that the evidence was insufficient to justify the conviction and that the court erred in receiving certain evidence.

A police officer testified that on March 31, 1947, about 9 :05 p. m., he and another officer went to a window of a certain house in Los Angeles; that the third or fourth slat of the Venetian blind at the window was tilted inward, and he looked through the blind where the slat was tilted and saw the defendant Graves and Pinkston lying on a bed facing each other; that a girl was lying at the foot of the bed; that at that time Graves had, in his hands, a 3-ounce bottle, a nipple, and a glass tube, which he was holding over a lighted lamp, and he had the tube in his mouth; that the lamp was on the bed between them; that Pinkston had a yen pock (an opium pill) in the flame of the lamp “and was rolling it over the top” of a hole in the bottle; that Graves held the tube in his mouth “off and on at intervals” for approximately seven minutes; that Graves then handed the instrument (bottle, nipple and tube) to Pinkston, who put the tube in his mouth, and held a yen hock (a device for eooldng an opium pill over a flame) over the flame of the lamp; and that the officers were at the window about 22 minutes. The officer testified further that they (the officers) then entered the house through a window of another room and went into the room where the defendants were; that at that time Pinkston was off the bed, had the yen hock in his hand, and then threw it on the bed; that Graves was just getting off the bed; that the girl was off the bed; that a lighted lamp was on a platter on a table pad in the center of the bed; that the “pipe” was on the bed and was very hot; that he (the officer) took the yen hock off the bed; that a small yen pock was on the bed and another small one was in a dish in the room; and that a package and a jar