People v. Silver

[378]

MUSSELL, J.

By indictment, appellant was accused of the crime of attempted murder (Pen. Code, §§ 664, 187) and, in a second count, he was accused of the crime of possession of a narcotic in violation of section 11500 of the Heálth and Safety Code. A jury returned a verdict finding him guilty of possessing a narcotic but was unable to reach a verdict on the attempted murder charge. Appellant was granted probation on certain conditions, including confinement in the Adult Detention Facility of the County of San Diego for a period of 60 days and payment of a fine in the sum of $250. He appeals from the judgment and order granting him probation, claiming that the trial court committed prejudicial error in instructing the jury and that the evidence was insufficient to support the verdict.

On January 12, 1959, during the course of a police interrogation of appellant in connection with their investigation of the attempted murder charge, he was asked if he objected to a search by the officers of a garage at 4041 Kansas Street. Appellant replied, “All right. That is my garage. I rent it.” Appellant then gave the officers the key to the garage and they searched it, finding various items relating to the attempted murder charge. The next day officers met with appellant at this garage and he was again asked if he had any objection to a search. He stated that he had no objection and proceeded to the front entrance of the garage, removed from his pants pocket a key, opened the garage door and entered, followed by the officers. Appellant pointed out several cartons containing packages of various types of drugs and stated that they were drugs he had removed from his store (The Bayview Pharmacy) in 1954. An inventory was taken and appellant stated that there were no other drugs in the garage. Later the same day, the police asked if another search might be made and appellant gave the officers the key to the garage and in the course of this search a box was uncovered labeled as a “Johnson and Johnson First Aid Kit.” Inside the kit was a small brown glass vial labeled “Dilaudid Hydrochloride, 1/16 grain” and containing 77 small, white pills. The officer also found in the “kit” a small bag which contained six small boxes labeled “Solution of Morphine Tartrate.” Each box contained a small container known as a “syrette.” There was also found in the kit a small green bottle containing 29 nembutal, P/g grain capsules, and 14 small two-tone capsules labeled “Tuinal,” 1% grains. One of the items marked “Dilaudid Hydrochloride’’ and various syrettes were tested