People v. Small

KAUFMAN, P. J.

The defendant, Joseph Small, appeals from a judgment of conviction entered on a jury verdict of guilty of possessing marijuana in violation of Health' and Safety Code, section 11500. His sole contention on appeal is that the judgment should be reversed because of the insufficiency of the evidence.

The record reveals the following facts: Officer Gibeau of the San Francisco Police Department testified that on April 10, 1957, at about 1:15 p.m. he and Officer Dyer were investigating an assault which had occurred the previous day. As the officers drove by Jefferson Park they saw three men standing and talking in the park. One of these men (not the defendant) roughly answered the description of the assault suspect. Officer Dyer got out of the car and approached the three men while Officer Gibeau parked the car. Officer Gibeau then walked toward the men from the south, and heard Officer Dyer call to the men, who had started walking westward, to stop, and two of the men stopped, but the third, the defendant, who had a small dog, continued walking. Officer Gibeau called, “I am a police inspector. Stop, I want to talk to you,” but the defendant continued to walk, then began to run and threw something into a clump of bushes. Officer Gibeau fired a shot after which the defendant stopped and was taken to the officers’ car with Officer Dyer. Officer Gibeau returned to the clump of bushes, and among gum wrappers, leaves and other debris, found a wax paper with a rubber band containing thirty marijuana cigarettes. He showed this package to the defendant who denied throwing anything into the bushes.

The defendant, testifying in his own behalf stated that on the day in question he had been walking his small dog in the park. There he met and talked to two acquaintances, Mr. Wilson and Mr. McNear. He unleashed his dog and then ran after it to chase the other dogs away. He did not

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see the officers as they approached or hear Officer Dyer until he heard a shot. He stated that he was running in pursuit of his dog and did not throw anything into the bushes. Mr. Wilson, testifying for the defendant, stated that Officer Dyer had flashed his badge and identified himself while he, the defendant and Mr. Prince were talking. He also stated that the defendant’s dog which was loose, was being chased by other dogs and that the defendant was trying to catch his dog, and that he did not see the defendant throw anything into the bushes.