People v. Bean

BARNARD, P. J.

The appellant and two other youths were jointly charged with a violation of section 11500 of the Health and Safety Code, it being alleged that on or about March 12, 1956, they unlawfully possessed a certain narcotic, marijuana. A jury returned verdicts of guilty as to each defendant. The court denied probation, and judgment was entered committing all three defendants to the California Youth Authority. The appellant has appealed from the judgment and from an order denying his motion for a new trial. He admits that the evidence, although conflicting, was sufficient to support the verdict but contends that prejudicial error appears in connection with the admission of one item of evidence, and in one statement made by the court to the jury.

On March 12,1956, at about 7:45 p. m. a Mrs. Graves parked her car in a drive-in restaurant in Chula Vista. A Mrs. Mason and Peggy Ryan, a 14-year-old girl, were in the car with her. They had gone there looking for Mrs. Graves’ daughter Betty. Parking spaces were marked on the pavement with white lines, and Mrs. Graves parked in Stall Number 5. A car owned by the appellant Bean and occupied by the three defendants was parked in Stall Number 3, with an intervening space between it and Mrs. Graves’ car.

A few moments after arriving at the drive-in Peggy Ryan went over to the car occupied by the three boys and inquired as to whether or not they knew Betty or had seen her. She received a negative reply and returned to the Graves car. A few minutes later she again went over to the other car and talked to the boys. She noticed a strange odor in that car which she described as sweet and musty; and she observed

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the three boys smoking a brown or tan-colored cigarette, which they were passing from one person to another. The radio in the boys’ car was turned up very loud and the boys were acting in a peculiar manner, waving their arms, and talking and cursing in extremely loud voices. Peggy thought they were drunk. The language and actions of the boys were observed also by Mrs. Graves and Mrs. Mason. The license number of this other car was written down by one of the occupants of the Graves car. The occupants of the Graves car then saw two cigarette butts flipped or dropped from the other car, and that ear drove away. Mrs. Mason and Peggy went over to where the other car had been parked and picked up several cigarette butts. Mrs. Mason picked up a tan-colored cigarette butt. She observed that it was different from the other cigarette butts, she smelled it and had Peggy smell it. Peggy testified that it smelled like what she had smelled from the car earlier, but that “the cigarette wasn’t as strong as the odor in the car.” They then drove to the police station, and Mrs. Mason turned the tan-colored cigarette butt over to the police officers. The cigarette butt was identified as containing marijuana, and was introduced in evidence. There was also evidence that this cigarette butt had the appearance of being home-made. A police officer with experience in the detection of narcotics testified that the odor of marijuana which has been partly burned is sweet and musty, and that to him it smelled something like burning alfalfa. The appellant was arrested on March 27, 1956, at which time his automobile was taken by the officers and locked in a police garage. Two days later the car was searched and marijuana seeds were discovered scattered under the driver’s seat, under the floor mat near the door, and along the ridge of the rear door on the left side of the car. These seeds were collected, identified and introduced in evidence.