People v. Savage

NOURSE, P. J.

The defendant was convicted on a charge of possession of narcotics. He appeals urging particularly three grounds which require consideration. These are:

(1) The insufficiency of the evidence to show possession.

(2) Errors in instructions to the jury.

(3) Misconduct and prejudice of the trial judge.

The facts are that the defendant was the renter and occupant of an apartment on lower Turk Street, in the city and county of San Francisco, and that he was arrested on the complaint of the landlady that too much noise was taking place in his apartment. When the police officers arrived they found six visitors' with the defendant, who evidently were holding a party. When the police entered they searched all the occupants and failed to find any narcotics on any one of them. There was no evidence that any one of them had recently been using any kind of narcotics and no evidence of smoke or odor of marijuana cigarettes, which the defendant was charged with having in his possession. They did find on the floor a partly smoked marijuana cigarette which was cold and evidently had been used long prior to its discovery. When the police entered two or three of the visitors were sitting on a davenport; the defendant was in the kitchen and the other men were standing around in different parts of the room. The parties were all arrested and taken to prison. Two days later a cleaning woman purported to have found seven marijuana cigarettes wrapped in

[125]

a green napkin and hidden inside the davenport. The evidence showed clearly that defendant had never used narcotics in any form but that other guests had been “users” and that one of these at the time of the trial was confined in the state penitentiary upon his conviction of possession of narcotics.

From these facts it is apparent that the conviction of defendant was based wholly upon the suspicion that someone had hidden the narcotics in the davenport and that since the defendant paid the rent it was reasonable to assume that he was the one who had possession thereof. This conclusion is based wholly upon suspicion. It was just as reasonable to assume that one of the three guests who were sitting on the davenport when the raid was made had hidden the narcotics in the davenport or that the landlady or her cleaning woman had done the same thing. It was just as reasonable to assume that one of the guests who was later convicted of the possession of narcotics had hidden this package when the raid was made. But there is no legal inference possible here that because the defendant paid the rent of the room he was in possession of anything which one of his guests might have brought in. Furthermore there was no evidence that defendant had any knowledge of the presence of the narcotic in the folds of the davenport.