People v. Ikner

WOOD (Parker), J.

In an information defendant was charged with violation of section 11500 of the Health and Safety Code, a felony, in that, on April 4, 1955, “in the County of Los Angeles, State of California,” he unlawfully had heroin in his possession. It was also alleged therein that he had been convicted previously of violation of said section, a misdemeanor. Trial by jury was waived. Defendant was adjudged guilty. The allegation as to prior conviction was stricken out, on the court’s motion, in the interests of justice. Defendant appeals from the judgment.

Appellant asserts that the prosecution failed to establish the venue of the crime; and that the evidence was insufficient to support the judgment.

Officer White testified that he is a police officer for the city of Los Angeles and is attached to the Newton Division (police station); on April 4, 1955, about 6 :15 p. m., he saw defendant on the west side of Ceres, walking south bound in front of 649; defendant was alone; the witness (Officer

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White) and his partner (Officer Nall) were in a vehicle traveling north on Ceres; they had the defendant under observation from the time they first saw him; when they were about 35 or 40 feet from him, he apparently observed them; he (defendant) hesitated, then made a turn, a pause, and a throwing motion; then the witness (Officer White) observed something white leave defendant’s hand and then, underneath the car (apparently a parked Mercury automobile), the witness saw papers hit the ground; defendant made the throwing motion with his right hand, and the witness kept the object under observation at all times; the witness saw where the object landed and marked the spot; later he (witness) went to the spot and picked up “the bindles,” referred to herein as Exhibit 1, which were lying in the gutter next to a parked Mercury in front of 649 Ceres Avenue; on the way to the police station, in the police car, defendant asked the officers what they were going to book him on, and defendant also said, “You didn’t see me throw anything”; prior to that statement, the witness had said that he saw defendant throw something; defendant also said, “Just because I happened to be there at the time you are going to pin a bum rap on me.”; the witness took the bindles to the Newton Street Station, marked them for identification, placed them in an envelope, and transported them to Central property. On cross-examination, the officer said that the district in the vicinity of 649 Ceres was “Apartment houses and businesses and single residences also. ’ ’; the judge asked if the district was “between Sixth and Seventh,” and the officer replied that it was; the judge asked, “Isn’t there a beer place around Ceres there between those streets?”; the officer replied, “Not between Sixth and Seventh.” On cross-examination, he was also asked what department he was assigned to, what kind of car he used and if there was anything about the car to identify it as a police car. He replied that he was assigned to the Newton Division, that the car was a felony car, and it had an antenna on the roof of it and had a “square E” license plate.