People v. Joseph

WHITE, P. J.

On September 11, 1956, an indictment was returned by the Grand Jury of Los Angeles County wherein defendant was accused of the crime of violation of section

[549]

11500 of the Health and Safety Code in that he unlawfully had in his possession a preparation of heroin. On October 1, 1956, the indictment was amended by adding thereto an allegation of two prior felony convictions, viz., burglary and violation of section 11500 of the Health and Safety Code, upon each of which convictions defendant served prison terms in California.

Following denial of a motion under Penal Code, section 995, defendant entered a plea of not guilty and denied the prior convictions. Trial by jury was duly waived and it was stipulated that the People’s case might be submitted on the transcript of the testimony taken before the grand jury and the exhibits referred to therein, the appellant reserving his right to object to such testimony on the ground of

res judicata,

unlawful arrest and unlawful search.

Defendant was adjudged guilty, his motion for a new trial was denied, and he was sentenced to state prison. From the judgment of conviction and the order denying his motion for a new trial defendant prosecutes this appeal.

The record reflects that prior to the return of the indictment herein, a complaint was filed against defendant in the Municipal Court of the Los Angeles Judicial District, wherein he was accused of the same offense charged in the subsequent indictment. On August 1, 1956, a preliminary examination was held before Municipal Judge Joseph L. Call, at which evidence was presented, and at the conclusion of the hearing thereon the charge against defendant was dismissed on the ground that there was no reasonable or probable cause for his arrest.

Thereafter, a second complaint was filed in the aforesaid municipal court, and on August 21, 1956, a second preliminary hearing was held before Municipal Court Judge William R. Gallagher, again resulting in a dismissal of the charge against defendant.

The following will serve as a fair epitome of the evidence given in this prosecution. On the night of July 23, 1956, Wallace R. Chittenden, a Los Angeles City Police Officer, was “working a night-watch radio car.” About 11:55 p. m. he observed defendant standing alone near the corner of 33rd and San Pedro Streets. As the officer rounded the corner, defendant started to walk away. The latter had his left hand “cupped” to his side. As the police car driven by Officer Chittenden approached defendant, according to the testimony of the officer, “As we pulled up to Mr. Octave