People v. Smith

FOX, P. J.

In an information filed by the district attorney defendants Smith, Miller, Decker and Bndley were each charged with the possession of marijuana, in violation of section 11530 of the Health and Safety Code. Bndley was also charged with a prior conviction, namely, violation of section 11500 of the Health and Safety Code. He pleaded not guilty and admitted the prior conviction. The other defendants also pleaded not guilty. Miller, however, withdrew his plea of not guilty and entered a plea of guilty. The jury found Bndley and his codefendants guilty. Bndley’s motion for a new trial was denied and he was committed to the Youth Authority for the term prescribed by law, his sentence to run concurrently with that imposed by reason of his prior conviction. Bndley has appealed from the judgment and the order denying him a new trial.

On the evening of December 12, 1959, Officers Hitchings and McMahan, of the Long Beach Police Department, received a radio dispatch relative to a loud party at Fourth and Maine Streets. The officers drove to the location in an unmarked police car, observed several persons in a house through an open door, and also saw a Chevrolet parked in front of the house which was occupied by four young men. The officers circled the block and approached the location from a different angle and observed the Chevrolet leaving with its four occupants. It proceeded east on Fourth Street at a high rate of speed. It was being driven in an erratic fashion; it would weave from the center of the street to the south curb. The car proceeded to the Long Beach Freeway where it went north. It was still traveling at a very high rate of speed and in such an erratic manner that it narrowly missed the cement dividing strip which separates the north and southbound traffic on the freeway. Shortly thereafter the vehicle left the freeway. It failed to make a boulevard stop. The officers then threw their spotlight on it. The car was soon stopped at a red traffic signal. The officers emerged from their car and approached the occupants of the Chevrolet. Officer

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Hitehings recognized Smith as the passenger in the right front seat and Decker as the passenger in the left rear seat. He also recognized appellant. The car belonged to Decker but was being driven by appellant who permitted it to travel several feet into the intersection against the red signal. Miller was in the right rear seat. Officer Hitehings observed a hand protrude from the right rear window of the Chevrolet and drop a small object to the ground. He immediately retrieved this object which turned out to be a hand-fashioned marijuana cigarette. The officers ordered Smith and Miller to get out of the car. Upon doing so, each of them ran from the scene, but were later captured, Smith having been wounded in his attempt to escape. Officer McMahan went to the driver’s door, found it locked, and shouted to the driver, “Open the door; police officers.” Appellant opened the door and demanded to see some identification. At this point the officer produced his badge and ordered appellant to get out of the ear. The officers searched the Chevrolet and found numerous seeds and debris of marijuana. They also found a quantity of green material in Miller’s pocket. At this time Officer Hitehings observed a quantity of green material between the teeth of appellant. The officer asked him what he had in his mouth, and he answered, “Gum.” This material had a very definite green color and was “leafy in appearance.” The officers, however, did not find any marijuana in appellant’s clothing. A later examination at the jail revealed that appellant still had green, leafy material in his mouth and between his teeth. The officers also noticed small particles of green on appellant’s tongue. None of this green, leafy material was removed from appellant’s mouth and analyzed. Marijuana is green if it is fresh. The officers then made certain tests on appellant as to his eyes. These tests showed that while his eyes reacted in a fairly normal manner, it was the officer’s opinion that they did not contract as rapidly as a normal person’s eyes would.