People v. James

SHINN, J.

Defendant was convicted of violation of section 11160 of the Health and Safety Code, in having in his possession a marihuana cigarette, Upon his appeal from the judgment he concedes that the evidence was sufficient to sustain a conviction and contends only that the court erred in the admission of evidence. One of the officers who arrested defendant upon the street testified to the circumstances of the arrest and, specifically, that defendant was violent and that he fought with the officers and was placed in

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handcuffs. Over defendant’s objection he was allowed to testify that in his opinion defendant was then under the influence of marihuana and gave as reasons for the opinion that defendant’s violence and strength indicated a condition induced by the use of marihuana and that his eyes were glassy and he was extremely nervous, which were also symptoms of the drug’s influence: There was but meager evidence to qualify the witness to express this opinion but his lack of qualification was not urged at the trial and is not relied upon here in support of the claim of error. The sole contention is that the testimony was objectionable because it tended to prove defendant guilty of the offense of using marihuana, which under the law is a separate offense from possession of it if it be granted that to smoke it is to administer to oneself a narcotic (§ 11167). Defendant relies upon the general rule that where a defendant is charged with a specific offense, evidence of the commission of other offenses is inadmissible either as tending to show a disposition on defendant’s part to commit such offenses or as corroborative of the testimony directed to the proof of the specific offense for which he is on trial. But an exception to the rule is recognized where the evidence in question is material and relevant to prove some issue of the case on trial as a part of the res gestae or which tends to establish the guilt of the defendant by proving a material fact involved therein or helps to disclose the motive or intention with which the act was performed, in which cases it is admissible even though it tends to prove the commission of another offense.

(People

v.

Pollock

(1939), 31 Cal.App.2d 747 [89 P.2d 128].)