People v. Neal

[750]

DOOLING, J.

Defendant was convicted by a jury of a violation of section 11500, Health and Safety Code, possession of marijuana. He appeals from the judgment and from an order denying his motion for new trial.

Two police officers on January 9, 1953, went to the premises known as 1626 Ellis Street in San Francisco. The premises consisted of a front room used as a shoeshine parlor and a back room containing a restaurant counter, a juke box, a table and chairs and a Chesterfield sofa. Appellant was in sole charge of the shoeshine stand at the time and was shining a customer’s shoes. The door to the back room was locked. At the officers’ request appellant gave them a bunch of keys, including the key to the back room. They unlocked the door, entered the back room and discovered a package wrapped in newspaper protruding from between a cushion and the back of the sofa. This contained seven marijuana cigarettes. Appellant denied all knowledge of this package. Appellant admitted that he had rented or was negotiating to rent the restaurant and the day before had been working in the back room shortening the counter. He claimed that the back room had been open to the public until the day before when the police requested its owner or lessee, one Foley, to lock it up.

It was appellant’s claim that one Jimmy Adalo operated the shoeshine parlor, that Adalo had spent the night before with him in his room and that he had only relieved Adalo a few minutes before the officers arrived to permit Adalo to go to appellant’s room to get a coat which he had left there. Appellant testified that he had only relieved Adalo “about twice” at the shoeshine parlor. However, the officers testified that Foley told them in appellant’s presence that “defendant was shining shoes there on a part time basis,” although Adalo regularly operated the stand.

In appellant’s room the officers found two hypodermic needles and an eyedropper, commonly used by addicts for taking heroin. Appellant denied any knowledge of these articles. They also found three packages of cigarette papers similar to the paper in which some of the marijuana cigarettes were wrapped. Appellant admitted that the papers were his and stated that he had used them for rolling cigarettes of tobacco.

Appellant urges that the facts show no more than a suspicion against him and are not sufficient to support his conviction. We dismiss the finding of the hypodermic needles and eyedropper in appellant’s room. They are not articles