People v. Gentry

BARNARD, P. J.

This defendant appeals from a judgment on conviction of possession of narcotics, and from an order denying his motion for a new trial.

At 1:20 a. m. on August 24, 1952, two police officers were traveling south in a police car. As they approached a certain street intersection they saw a car parked at the northeast corner of the intersection, headed west. As they neared the intersection the other car started up and proceeded west on the cross street. As the officers followed, they saw a small package leave the right side of the other ear, at about car-window height, and land about 10 feet from the line of travel of the other car. The officers stopped and picked up the package and then went after the other ear and stopped it a block or so away. There were four men in the other car, Hurst, Diehl, Chavez and the appellant. The appellant was seated on the right side of the rear seat and the other three were in the front seat. The right rear window of that car was completely lowered and the window of the right front door was lowered about 4 inches. As the officers and men stood about the car Hurst said, in the presence of the appellant, “They found the stuff. We will get time out of this sure.” He testified that what he had said was, “If there is anything in this car we will get time,” and that this remark was made to Diehl. On cross-examination, he said that his statement was made to anyone who was there and not to any particular person.

The package which was thrown from the car contained four “bindles” of morphine. At the jail Hurst, Diehl and the appellant denied any knowledge of the package and each stated that he knew of none being thrown from the car and that if one was thrown he had nothing to do with it. When the appellant was asked as to what they were doing parked at the point where the officers first saw the car, he replied that he did not know, that they were just sitting in the car. Needle marks were found on the arms of Hurst, Diehl and the appellant. The appellant had a number of old needle marks on his left arm and others on his right arm, one of which appeared to be fresh. Some of the marks on the arms of Hurst and Diehl were fresh marks. An expert testified as to the method of applying such narcotics with a needle, saying that

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it was usually mixed with water and heated. A table model lighter was found in the car. When asked about the old marks on his left arm the appellant said he had not “used” that arm for quite some time. When asked about the fresh mark on his right arm, the appellant said: “Well, I haven’t been using very much.” Hurst testified in his own behalf but neither Diehl nor the appellant took the witness stand.