People v. Robles

VALLES, J.

A jury convicted defendant of unlawfully possessing heroin. He was sentenced to state prison. He appeals from the judgment and order denying a new trial.

On May 7, 1959, Deputy Sheriff Austin, accompanied by Deputies Sells, Wilson, Miller, and Peterson, drove to the vicinity of defendant’s home in east Los Angeles. Before reaching defendant’s home, Austin left the car and walked past the house. Defendant was in the front yard. When Austin was three or four feet from defendant he (Austin) saw old scar tissue on defendant’s inner left elbow and fresh puncture wounds over the vein inside the old scar tissue. Austin formed the opinion defendant had been using narcotics illegally, and returned to the ear.

The officers then drove to the front of defendant’s house. As they approached, defendant was still in the front yard. He turned to face the car. As he faced the car, he made an underhand throwing motion with his right hand. Officer Sells saw an object fly out of defendant’s hand and into the yard next door. Defendant then stooped next to a picket fence which separated the two yards. The officers alighted from the car and approached defendant. As they did so Austin again saw the old scar tissue and a fresh puncture on the inner left elbow over the vein. The officers placed defendant under arrest. Sells and Miller proceeded to the area next to the fence where defendant had stooped and to the area in which he had thrown the object. In the latter area Sells found a balloon containing heroin.

Austin asked defendant if this “junk” was his. Defendant said it was. “Junk” in the narcotic traffic means heroin. Austin asked defendant if he obtained it for the purpose of selling it. Defendant said no, that he obtained it for his own use.

. Defendant asserts his “disposing of the evidence, was a product of the officers’ misconduct and illegal arrest, and was an invasion of his constitutional rights”; that “the basis of the arrest of the appellant was a subterfuge in an effort to

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try and secure evidence against him. ’ ’ The assertion is predicated on the fact that Officer Austin testified that when the officers left the police station it was their intention, in going to defendant’s home, to arrest him. However, Austin testified the officers went to the area “for the purpose of conducting an investigation involving the defendant. If the investigation proved positive, then we had the intention of arresting him”; and that the reason he arrested defendant was because he saw the marks on defendant’s left arm. The jury and the trial judge, in denying a new trial, impliedly found that the officers did not go to defendant’s home with the intention of arresting him without probable cause. The rule as to conflict of evidence applies to eases of contradictions in the testimony of a witness. The conflict is all the more for the jury for being intestine.