People v. Daniel

DOOLING, J.

Defendant appeals from a judgment entered upon a jury verdict convicting him of the unlawful possession of marijuana and from an order denying his motion for new trial.

On December 6, 1957, at about 11:30 p. m. Officers Ingram and Campbell were cruising in a police car in Oakland. They stopped abreast of an automobile parked at the intersection of Seventh and Chester Streets at which time the appellant was on the sidewalk talking to the three men in the parked automobile. As the officers got out of their automobile, Ingram testified, he saw the appellant make a stooping motion as if dropping something and after going around the back of the parked automobile he observed appellant making a kicking motion toward the curb. He found a packet containing 30 marijuana cigarettes wedged between the curb and the parked automobile opposite the point where appellant was standing. He testified

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that after picking up the packet: “. . . I asked Mr. Daniel[s] at that time if he had any more stuff and he didn’t make any statement. ’ ’

Officer Campbell testified that as he got out of the police car he turned his flashlight into the automobile in which the other men were seated and he saw none of them make any motion such as they would have done if throwing anything out of the automobile. Appellant produced the three occupants of this automobile. They all testified that

all of

the windows

of

their automobile were tightly closed, nothing was thrown from the car, they did not see appellant drop or throw anything and they did not see Ingram pick anything up.

Appellant testified that he did not have possession of, drop, throw or kick, the packet of marijuana. He admitted that he saw Ingram pick up the packet from the curb.

The only points made for reversal are two alleged instances of misconduct in the prosecutor’s argument to the jury. On cross-examination appellant admitted his previous conviction on two counts charging possession of heroin. In his opening argument the prosecutor said :