People v. Gutierrez

SCHOTTKY, J.

This is an appeal from a judgment of conviction upon an information charging appellant with selling “flowering tops and leaves of Indian Hemp (cannabis sativa),” otherwise known as marijuana, in violation of section 11500 of the Health and Safety Code.

The record shows that on the evening of March 9, 1954, about 8:30 p.m., Jerome Murphy, a state narcotic inspector, was parked in a state car on B Street across from the Lake-view Motel in the city of Marysville. Appellant, driving a 1949 model Ford coupé, approached Murphy’s car from the opposite direction on B Street, passed it, made a “U” turn, returned and came to a halt approximately .two car lengths in front of the state vehicle. Appellant left the car he was driving and approached Murphy who remained in the driver’s seat of the state car. Thereafter, according to the testimony of the state inspector, a conversation ensued in which appellant said he had “seven,” didn’t have “any more,” and" wanted $7.00 as they were “hard to get.” Appellant then handed Murphy a cellophane package containing seven cigarettes, later

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proved by chemical analysis to contain marijuana, for which the state inspector paid appellant $7.00 in state funds. It was brought out on examination of this witness that in the exchange the parties did not refer to the contents of the package other than by the use of the word “seven." Murphy also testified that before appellant left the scene he (Murphy) asked appellant if another purchase could be made the next day and appellant replied, “Maybe not, but probably Saturday night. And you will see me around there. ’ ’ However, no further purchases were made and an inspection of appellant’s car and home failed to disclose any evidence of possession of narcotics.

At the time of the aforementioned sale of marijuana to Murphy, appellant was accompanied by one Mr. Lava, known to appellant as Robert, who was a passenger in the automobile. Lava was working as an undercover informer for the Bureau of Narcotic Enforcement, and about 30 to 45 minutes prior to the sale was searched by John Heinzer, a state narcotic inspector, who ascertained that he at that time had no narcotics on his person and no money except $1.00 which was given to him by the inspector. Lava was not available as a witness at the time of trial although efforts had been made by both prosecution and defense counsel to locate him.