People v. Albright

WARD, J.

Defendant was convicted on three counts of violation of provisions of the Health and Safety Code covering transportation of marihuana, its possession, and the possession of opium and heroin; also on a fourth count, possession of prohibited firearms, capable of being concealed upon the person, by one who had been convicted of a felony. The information further alleged the conviction of a felony, namely, violation of the federal Marihuana Tax Act, as a prior conviction with sentence served therefor. Defendant pleaded not guilty to the four counts of the information and stood mute on the prior conviction. The court directed that a denial be entered on behalf of the defendant on such conviction. According to the record, on the date of the trial defendant “admits having suffered the prior conviction.”

Two contentions are presented on appeal: “I. Competent Evidence is Insufficient to Support the Verdict. II. Prejudicial Misconduct of the District Attorney.” Defendant explains the first point as follows: “While the evidence in its entirety would have been sufficient to sustain the verdict, the remaining evidence, after the proper exclusion of certain prejudicial testimony as shall hereinafter be set forth, is insufficient to sustain the verdict.” The propriety of the admission of the testimony claimed to be prejudicial may be considered in conjunction with the alleged prejudicial miscon

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duct of the district attorney. If the questions propounded by him were free from objection the charge of insufficiency of evidence collapses. It is not necessary to relate all of the details introduced in evidence by the district attorney to prove this case, as defendant admits that if certain evidence be legally admissible it is sufficient to sustain the verdict.

On cross-examination defendant elicited certain evidence that at the time of his arrest he was drunk; other evidence was that at the time of his arrest he was under the influence of drugs. The district attorney asked the following question: “Just one question. Now, in recalling the defendant’s condition at the time you placed him under arrest on the drunk charge, can you state whether or not the defendant was drunk or drugged, or do you know f” to which reply was made: “Well, he didn’t stagger like a drunk man. He looked like he was drunk, but he didn’t stagger like a drunk man.” It was proper to show the physical as well as the mental condition of the accused when he made certain statements to the police. The following question and answer appear in the record: “Q. What was the conversation that you heard between the defendant the Inspector Armstrong that day with reference to the ease? A. They asked him what was in that suitcase, and he said he had done eighteen months for the same thing that was in there. Q. Was that the full extent of the conversation that you heard? A. Yes, sir.” As evidence was introduced to prove the nature and character of the contents of the suitcase, it was proper to introduce evidence that tended to show that defendant was aware of what the suitcase contained. The record shows further testimony. “Q. What was the conversation you had with the defendant at that time ? A. I asked him if he had ever been in jail. He says, ‘Yes.’ Want me to continue? Q. Yes, please. A. And I said, ‘What for ? ’ So he turned around and he points at that suitcase. He says, ‘ For the same thing as in that suitcase. ’ Q. In the conversation had any mention of the contents of the suitcase been made? A. No, sir.” Another witness had a conversation with defendant at a later period: “Q. And during that time did you have any conversation with the defendant with reference to the contents of this brown suitcase? . . . The Witness: Yes, I will repeat it. I asked the defendant if that suitcase belonged to him, and he said ‘No.’ I asked him if he knew it came out of his car. He said he had been told it came out of his car. I asked him if he knew what was in it. He said—at