People v. House

COUGHLIN, J.

Defendant was charged with the offense of offering to sell a narcotic, viz, mescaline, and delivering to the purchaser a nonnarcotic in lieu of the narcotic offered, a violation of Health and Safety Code section 11503; was convicted, following a trial by jury; moved for a new trial, which was denied; was sentenced to imprisonment in the state prison; and appeals.

A state narcotic agent named Romine, and a confidential operator named Collins, contacted defendant and a man named Sebra respecting the purchase of mescaline. Both of the latter participated in the discussion resulting in an offer to sell the former an ounce of mescaline for $115. Defendant stated the mescaline was 90 percent pure; advised the best way to sell the mescaline was to cap it in No. 2 caps at $45 per cap; also stated the mescaline was in a neighboring city; and participated in the conversation fixing the time and place of delivery. At the appointed time and place Romine and Collins met with Sebra and waited for defendant. Upon the latter’s arrival he displayed a plastic bag containing a white powder which he handed to Sebra who in turn handed it to Romine." The latter subsequently returned it to Sebra. The sellers reit-r erated their previous representation the mescaline was “some

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where in the neighborhood of 90 per cent pure.” Defendant stated his belief the purchaser probably could sell the capsules for somewhere between $40 and $45 apiece; and explained the reason for his delayed arrival was the trouble he had encountered in locating scales with which to weigh the mescaline. Romine paid Sebra $120; the latter left to obtain change; when he returned, defendant handed Romine $5. The bag of white' powder was rewrapped by Sebra and handed back to Romine. Subsequently Romine delivered the bag and contents to his San' Diego office. A chemical analysis of the contents of the bag established it was not mescaline or any other narcotic.

Defendant testified although he was present when the transaction occurred and overheard some of the conversation, he was hot a participant in any way; he did not obtain or deliver the bag with the white substance; he did not engage in any of the conversations and did not make the statements attributed to him; and he did not do any of the things heretofore noted.