People v. Torres

PEEK, J.

Defendant appeals from a judgment following jury convictions of the sale of heroin in two counts. (Health & Saf. Code, § 11501.) The indictment also charged, and defendant admitted, two prior convictions, one a narcotics violation. The order denying defendant’s motion for a new trial being nonappealable his purported appeal therefrom must be dismissed. (Pen. Code, § 1237.)

The prosecution presented substantial evidence that at approximately 10 a.m. on January 12, 1961, the defendant sold capsules containing heroin to an officer of the State Bureau of Narcotics (count I) and that a comparable transaction occurred at approximately 8 p. m. on January 25, 1961, (count II). The defense to both counts was an alibi.

As to the first count, defendant presented evidence that from December 18 to January 18 his wife was confined in a hospital; that during this time he and his minor children' were living with a friend, and that on the day of the alleged offense he was ill and had remained at home in bed. This evidence was corroborated by relatives, friends and hospital records.

Defendant’s testimony as to the offense charged in the second count, contrary to the testimony of the narcotic agent, was that he was not at home at the time claimed; that on the evening of January 25 he and his wife attended a motion picture, “Sunrise at Campobello” at the State Theater in Santa Barbara, and on that particular evening it had rained. His wife, his sister and mother all corroborated such testimony. The theater manager testified that the motion picture “Sunrise at Campobello” was shown at his theater from January 25 through January 31. Defendant then called a meteorologist who testified as to the rain and the amount which had fallen on January 25. Defendant next sought to establish through his witness that it did not rain on any other day while “Sunrise at Campobello” was showing at

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the State Theater. An objection to such line of questioning was sustained on the ground of immateriality.

Defendant first contends that the court erred in refusing to allow the witness to answer and with this contention we must agree, particularly under the circumstances of the instant case. ***