People v. Roberson

167 Cal.App.2d 429 (1959) THE PEOPLE, Respondent,

v.

IRA ROBERSON, Appellant.

Crim. No. 3496. California Court of Appeals. First Dist., Div. Two.

Jan. 29, 1959. Gregory S. Stout, under appointment by the District Court of Appeal, for Appellant.

Stanley Mosk and Edmund G. Brown, Attorneys General, Clarence A. Linn, Chief Assistant Attorney General, Raymond M. Momboisse, Deputy Attorney General, Thomas C. Lynch, District Attorney (San Francisco), and Philip J. Hanley, Deputy District Attorney, for Respondent. [431]

DOOLING, J.

Tried upon an indictment charging sale of narcotics, defendant was found guilty by a jury and sentenced to prison. He appeals.

The prosecution charges that appellant sold heroin to James Shepherd, a Hayward policeman employed for five weeks in the spring of 1957 as an undercover agent for the State Bureau of Narcotics. The only evidence of the sale of narcotics by appellant is found in Shepherd's testimony that he bought heroin from appellant. Appellant flatly denied this sale and on that issue the jury had to resolve the question of credibility between those two witnesses and those two witnesses alone.

[1] To support circumstantially his denial of sale to Shepherd appellant testified that he knew that Shepherd was a police officer. To corroborate this state of mind he produced Pitman and sought to prove that Pitman had told appellant that Pitman had heard that Shepherd was a police officer. The refusal of the trial court to allow this testimony was error. The applicable rule is stated in VI Wigmore on Evidence, 3d edition, section 1789, page 235:

"Whenever an utterance is offered to evidence the state of mind which ensued in another person in consequence of the utterance, it is obvious that no assertive or testimonial use is sought to be made of it, and the utterance is therefore admissible, so far as the Hearsay rule is concerned." (Emphasis the author's.)