People v. Toms

MUSSELL, J.

Appellants were charged with violating section 11500 of the Health and Safety Code, a felony, in that on or about November 5, 1957, in Tulare County, they unlawfully had in their possession a quantity of heroin. They entered pleas of not guilty and trial was had before a jury which found them guilty as charged in the information. Motions for new trial and applications for probation were denied. Appellant Toms was sentenced to the state’s prison at Vacaville and appellant Moore was sentenced to the state’s prison at Corona. This appeal is from the judgments of conviction and from the order denying motions for new trial.

At about 11 a. m. on November 5, 1957, appellants were traveling south on Highway 99 when they were stopped by a highway patrol officer for speeding. Appellant Toms was driving and was given a citation. At about 1 p. m. on the same day another highway patrolman (Morton E. Camp), while patroling the highway in Tulare County, copied an all points radio broadcast concerning the Oldsmobile in which appellants were riding. He observed the Oldsmobile and pulled out after it. The Oldsmobile increased its speed to 80 miles per hour and passed several other ears. The officer finally overtook it and ordered the driver to pull over. The officer then pulled up about 10 feet behind the Oldsmobile after it came to a stop. After satisfying himself that there was nothing in the road or the area of the ear and that nothing had been thrown from it, he walked over to the Oldsmobile. Appellant Moore was driving it and appellant Toms was seated in the right front seat. Officer Camp asked appellant Moore for her driver’s license and then returned to his patrol car. Appellant Moore got out of the Oldsmobile and started walking toward the officer’s car and he told her to go back to the Oldsmobile. Shortly thereafter, when Officer Camp was in his ear, appellant Moore got out of the Oldsmobile, carrying a brown paper bag. She walked to the front of the Oldsmobile, crossed in front of it and walked for some distance to the right, away from the highway and front of the

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car. Appellant Toms remained seated on the passenger side with his arms over the car door, watching appellant Moore. Officer Camp then proceeded toward appellant Moore. He walked between the two vehicles and along the right of the passenger side of the Oldsmobile. At this time he observed that the area around the Oldsmobile was clear of all ‘ ‘ foreign matter. ’ ’ As the officer walked beyond the Oldsmobile toward appellant Moore he had his back to appellant Toms. After retrieving the paper sack which appellant Moore had been carrying, the officer turned back toward the Oldsmobile and saw a crumpled aluminum foil object on the ground, even with the passenger door and 3 feet from the ear. The object was bright and shiny and was in the clear dirt area near the ear door. The object was about 3 inches long and 1 inch in diameter and was tightly compressed. Appellant Toms was still seated on the passenger side of the Oldsmobile but the car door was partially open. The officer picked up the object and unwrapped the aluminum foil. Inside was a white, lined paper containing a light grey powder substance, which was later analyzed and found to be 139 grains of heroin, of the value of approximately $700.