People v. Lama

[392]

SHINN, P. J.

Defendant Lama was charged with the unlawful possession of heroin in violation of section 11500 of the Health and Safety Code. It was further alleged that defendant had suffered three prior convictions in the years 1941, 1942 and 1949, for violations of the same section or its predecessor, section 11160. Upon arraignment defendant entered a plea of not guilty and denied the prior convictions. He was subsequently rearraigned and admitted each prior conviction. The cause was called for trial and a jury duly sworn. Defendant was found guilty and filed an application for probation. Probation was denied; motion for new trial was also denied. He was sentenced to state prison. Defendant appeals. The record has been augmented to include jury instructions given and refused and those portions'of the argument of counsel which were objected to or assigned as error or misconduct at the time they were made.

On January 17, 1954, at about 10:45 p. m., police arrived at defendant’s apartment, rang the buzzer and were admitted. One Willie Holder was observed sitting on a wall bed. Both defendant and Holder were searched by the officers, but no narcotics were on their persons. After searching both men, officers searched the apartment and, under the bed upon which Holder had been sitting, they found a large tub containing a paper cone (a “bindle”), in which there was a quantity of white, powdery substance weighing about 13 grams which was proved to be heroin. The bindle in which the heroin had been found was sent to the fingerprint department for determination as to whether there were any usable prints thereon. No evidence was introduced as to fingerprints.

Willie Holder testified for the defendant that he brought the heroin to defendant Lama’s apartment that evening, and showed it to defendant, who examined it and stated that it looked like milk sugar and then handed it back. He testified that when the police rang the buzzer, he threw the bindle into the washtnb under the bed while defendant answered the door. Upon cross-examination Holder admitted that he had been convicted of several felonies including a narcotics violation and that he was, at the time of testifying, under sentence for a narcotics violation. He at first stated to officers that the narcotic was not his, but later stated that it was. He testified he found the white powder under a carpet on the stairs of his building while he was searching for a hypodermic needle and wished to seek defendant’s opinion as to whether it was heroin; that if it was, he intended to use it himself; that