People v. Heath

SHINN, P. J.

Clyde Heath appeals from a judgment of conviction of the offense of having in his possession a preparation of heroin in violation of section 11500 of the Health and Safety Code and also from an order denying his motion for a new trial.

When the case came on for trial, a jury was waived, it was stipulated that the cause was submitted on the transcript of the preliminary examination with the right of the People and of the defendant to offer additional evidence. There was evidence of the following facts received in the preliminary examination. E. B. Hollingsworth, a state narcotics inspector, testified that he saw defendant at about 11:25 p. m., January 25, 1954, on the sidewalk on the south side of Sixth Street in Los Angeles between Towne and Crocker Streets. As he approached he saw that the defendant was trying to swallow something. He told him to spit it out and he spat a white paper bindle wrapped in cellophane. This was taken to chemist Arnold of the California State Bureau of Narcotic Enforcement. Upon the trial Mr. Hollingsworth testified that he arrested the defendant and at that time defendant stated that the package contained heroin and that he had just picked it up from where he had

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stacked ” it earlier in the day. Mr. Arnold testified that he had made a chemical analysis of the contents of the package received from Mr. Hollingsworth, and that in his opinion the same contained heroin.

The first point made on the appeal is that the record does not affirmatively show that the trial judge read the transcript of the evidence at the preliminary. A supplemental transcript which was settled by the court contains a statement by the court that the court had read and considered the transcript of the preliminary. This was unnecessary. There was nothing in the original reporter’s transcript or the clerk’s transcript which indicated that the court had not read and considered the preliminary transcript. Although it is customary for the court to announce in such cases that the transcript has been read, it would not be presumed in the absence of such a statement that the transcript had not been read. It was the duty of the court

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to read the transcript and it will be presumed that that duty was duly performed. The point urged could have validity