People v. Gonzales

SCHOTTKY, J.

Defendant above named was charged by information with violation of section 11501 of the Health and Safety Code, it being alleged that he “did wilfully and unlawfully . . . sell, furnish and give away a narcotic. . . .” He was also charged with three prior felony convictions. Defendant entered a plea of not guilty to the crime charged in the information, but admitted the prior convictions. The case proceeded to trial and the jury found defendant guilty as charged. His motion for a new trial was denied, and following denial of probation judgment was pronounced. This appeal is from the judgment.

The record discloses that the defendant was under suspicion of illegal narcotic activity. The state and local officials contacted one Vincent Gurley (a known user of narcotics) and made him a special agent. Gurley was acquainted with the defendant and had in the past purchased narcotics from him. On or about September 22, 1959, Gurley was given $50 in marked money and told by the local law enforcement officials to attempt to make a purchase from the defendant. Gurley made contact with the defendant and in the early hours of the following morning did make a purchase, that is, he received

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several bindles of heroin, and the marked money was found in the possession of the defendant. The defendant took the stand in his own behalf and testified that the money found in his possession was given to him by Gurley not in payment for narcotics but as a partial reimbursement for a prior loan made by the defendant to Gurley.

Appellant does not question the sufficiency of the evidence to support the judgment and his sole contention upon this appeal is that the forms of verdict submitted to the jury by the trial court unduly influenced their decision and deprived him of a fair trial. The three forms of verdict given to the jury were as follows:

1. Guilty of violation of Health and Safety Code, section 11501, sale of narcotics, as charged in the information.

2. Not guilty of violation of Health and Safety Code, section 11501, sale of narcotics, as charged in the information.

3. Guilty of violation of Health and Safety Code, section 11500, possession of narcotics, a lesser included offense included in that charged in the information.