People v. Tisby

FOURT, J.

This is an appeal from an order granting probation after conviction of having possession of a certain narcotic.

In an information filed in Los Angeles County the defendant was charged with having possession of marijuana on April 23, 1959. The defendant pleaded not guilty. A jury trial was waived and the cause was submitted on the trans-script of the testimony taken at the preliminary hearing. The defendant was found guilty and after a hearing on his application for probation the proceedings were suspended, probation was granted for five years, a part of the terms of which were that the defendant spend 180 days in the county jail.

A résumé of the facts is as follows:

Robert Conrad, a Los Angeles police officer, in company with another officer, was driving a police car equipped with two big red lights on top thereof and a siren between such red lights. The officers were driving south on Harvard Street. Near 21st Street Officer Conrad saw appellant seated in a parked 1954 white Cadillac Eldorado, behind the driver’s wheel. Curtis Williams was seated to the right of the appellant. When the officer first saw the appellant he appeared to be smoking a cigarette. The officer testified that the defendant “looked in our direction and took the cigarette out of his mouth hurriedly and his eyes opened up and he held his right hand down to his right side.” Further, that the appellant looked surprised when the officer stopped his automobile.

After stopping the police car Conrad got out of it, and went over to the automobile in which the appellant was seated. The officer smelled the odor of burning marijuana. The officer had smelled burning marijuana some 50 or 60 times before this occasion during his experiences as a policeman and in the course of his training.

The appellant was ordered out of his automobile and directed to open up his right hand. A partially smoked marijuana-appearing cigarette was in the right hand of the appellant. Appellant was ordered to open up his left hand and therein was contained four cigarettes which appeared to be made of marijuana.

[576]

At a conversation at the police station the appellant stated “that the fellow with him had nothing to do with the cigarettes ; that it was his own deal; that he picked up the five joints from a stud at Normandy and Adams and that he paid 50 cents apiece for them; that he just picked them up a little while ago; that he just had lit up the cigarette and had about three or four blasts before we busted him.”