People v. Contreras

[289]

KAUFMAN, P. J.

A jury found defendant guilty of selling heroin in violation of Health and Safety Code, section 11500. He appeals from the judgment of conviction, claiming that the trial court erred in failing to give an instruction on circumstantial evidence and an instruction on reasonable doubt.

The facts, which are not in dispute, are as follows: On Sunday, July 21, 1957, Officers Juarez and Lopez of the San Jose Police Department, were instructed to go to Post Street and purchase narcotics from anyone who would sell to them. They were given $20 in marked bills to use. The officers saw the defendant in front of Rusty’s café on Post Street. Defendant asked Officer Juarez if he was going “to connect.” Juarez answered that he wanted to buy heroin. Defendar' said a man by the name of Tommy would be around later. Juarez gave the defendant $10. Later the defendant returned with a small rubber balloon. Defendant handed the balloon and a $5.00 bill to Officer Juarez. Upon examination a gelatin capsule inside the balloon was found to contain one gram of heroin.

The first question is whether the trial court erred in failing to give the following instruction proffered by the defendant.

“If the evidence of this case is susceptible of two constructions or interpretations, each of which appears to you to be reasonable, and one of which points to the guilt of the Defendant and the other to his innocence, it is your duty, under the law, to adopt that interpretation which will admit of the Defendant’s innocence, and reject that which points to his guilt.”

Defendant, citing People v.

Yrigoyen,

45 Cal.2d 46 [286 P.2d 1]

; People

v.

Zerillo,

36 Cal.2d 222 [223 P.2d 223]

; People

v.

Bender,

27 Cal.2d 164 [163 P.2d 8], relies on the well established rule that when circumstantial evidence is received to prove a fact necessary to convict, the trial court, should, on its own motion, give an instruction concerning circumstantial evidence. The record discloses that the evidence produced by the People was all direct evidence not circumstantial. Hence, the failure to give the instruction was not error.