People v. Tucker

THE COURT.

— In an information the defendant was charged in separate counts with two offenses of the sale of heroin, one of the possession of heroin and one count of the possession of marijuana. Defendant was represented by the public defender; trial by jury was waived, defendant did not testify and was found guilty on all counts. His motion for a new trial was denied; probation was denied and he was sentenced to state prison, all terms to run concurrently.

Defendant appeals in propria persona from the judgment and the denial of his motion for a new trial.

On August 26, 1960, at around 7:30 p.m., Elvis Warthen, a deputy sheriff, was in the company of Walter Ellison. The officer had previously searched Ellison and found no narcotics on his person; he gave Ellison three marked $20 bills.

Ellison made a telephone call and he and Officer Warthen waited together in the officer’s vehicle. A car driven by defendant backed up in front of the officer’s car. Defendant made a beckoning motion to Ellison who walked up to defendant’s ear. The defendant's hands came up to Ellison’s hands. Ellison then returned and gave the officer two $20 bills and four capsules of heroin.

Officer Warthen and Ellison remained there until approximately 8:30. When defendant appeared Ellison introduced defendant to the officer who asked him if he had the “stuff” with him. Defendant stated that he did and asked the officer if he had the “bread.” Defendant would not give it to the officer as he did not know him, but agreed to give it to Ellison. Defendant and Ellison walked away about 15 feet. Defendant’s hands made contact with Ellison’s and an object changed from defendant’s hands to Ellison’s. Ellison handed the officer a rubber balloon containing eight heroin capsules.

As might have been expected of an informer, at the trial Ellison denied the officer’s testimony, stating that he did not see the defendant on the night in question, nor give him any

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heroin. However, he did admit being with the officer on the night in question.

War then in company with other officers went to 214 West 101st Street and placed defendant under arrest and searched him. They found two of the marked $20 bills. A further search revealed a gelatin capsule containing a small amount of heroin.