People v. Ahern

WOOD (Fred B.), J.

Defendant has appealed from the judgment entered upon his conviction of violating section 11500 of the Health and Safety Code, furnishing a marijuana cigarette to one Patricia McGuire, a minor.

The principal issues are (1) asserted error in the refusal of certain instructions requested by the defendant, and (2) asserted error in permitting an amendment of the information to add a count charging commission of the offense for which the defendant now stands convicted.

[748]

(1)

The defendant requested and the court refused the following cautionary instmctions concerning accomplices and their

testimony: “You are instructed that an accomplice is one who has been concerned in the commission, of a crime, whether he or she has directly committed the act or aided and abetted in its commission, and is liable to prosecution for the identical offense charged against the defendant,” and “You are further instructed that, as a matter of law, it is your duty as jurors to view the testimony of an accomplice with distrust.”

Proper instructions on this subject were necessary in view of testimony of the prosecution witness, Patricia McGuire, tending to prove that one of the other witnesses against defendant aided and abetted him in the commission of the alleged offense. Patricia testified that Darlene Healy was with defendant; that Patricia went up to defendant and asked him for a “joint” (meaning a marijuana cigarette); he said “No”; then she started begging him, saying “please,” and then “Darlene says, ‘Go ahead,’ so he says, ‘O.K.’ ” and gave her a marijuana cigarette. Patricia then lighted it, handed it to Darlene who smoked it some and in turn handed it to the defendant who took a couple of puffs ad returned it to Patricia who finished it. Twenty to thirty minutes later the police raided the place. They found seven marijuana cigarettes on Darlene. She testified that she had smoked marijuana about 30 or 40 times, and that in the presence of defendant and Patricia she smoked part of a marijuana cigarette which defendant gave to Patricia that night; that Patricia asked defendant for a cigarette and he said “No,” but when Patricia asked a second time, he said “All right”; denied that she, Darlene, said anything, denied that she told defendant to give Patricia one; and said that she knew the defendant and was engaged to marry him.