People v. Le Beau

WOOD (Fred B.), J.

Convicted of selling and furnishing heroin in violation of section 11500, Health and Safety Code, defendant predicates his claim for reversal,

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in part, upon the failure of the trial court to give on its own motion an instruction on the defense of an alibi. But he presented no evidence of an alibi for the date of the crime, February 6, 1952. Although he denied having made the sale, or any sale of narcotics at any time, he was unable to remember where he was on February 6th. He could not recall any of his activities on that day. There was, therefore, no basis in the evidence for an instruction on alibi. Moreover, “the rule in California is well established that, although substantial alibi evidence may be given by the defense, in the absence of any request for an instruction in respect thereof, it is not the duty of the trial court to give a specific charge upon that subject.”

(People

v.

Whitson,

25 Cal.2d 593, 603 [154 P.2d 867], See also

People

v.

Young,

118 Cal.App.2d 112, 113 [257 P.2d 77] ;

People

v.

Williams,

128 Cal.App.2d 458, 464 [275 P.2d

513];

and cases cited in each.)

[71]

Defendant also claims error in the failure of the trial court to instruct the jury regarding the evidence identifying defendant as the perpetrator of the crime. He is not specific concerning the precise nature of the instruction which he now claims should have been given and which at the trial he failed to mention or request. He does assert that the identification of him was weak, but our reading of the record indicates that the officer’s identification of defendant as the person who supplied him with the narcotic was definite and positive. We observe also that the jury was fully and fairly instructed on the applicable principles of law. Under the circumstances we do not consider this point well taken. (See