People v. Ruiz

BARNARD, P. J.

The appellant was charged with the possession of a narcotic, to wit, marijuana, in violation of section 11500 of the Health and Safety Code. He was also charged with a prior conviction of burglary. He pleaded

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not guilty but admitted the prior conviction. A jury found him guilty as charged in the information, and he has appealed from the judgment and from an order denying his motion for a new trial.

The appellant did not put on any evidence and the facts are undisputed. About 2 a.m. on March 18, 1957, two officers of the San Diego Police Department, while on patrol duty, observed a car parked on a lot. The driver was sitting in the car facing out the door with his feet out of the car, and he appeared to be ill. The officers turned around and as they were returning to the scene they saw the car being driven away slowly and weaving back and forth across the center line. They stopped the car which was being driven by the appellant. When asked to get out of the ear the appellant staggered slightly and, in response to a question, said that he had had a couple of drinks. The officers gave the appellant some sobriety tests and found that he had difficulty in standing on one foot and that he weaved from side to side. When a flashlight was passed across his eyes it was seen that there was very little contraction. The officers concluded that appellant was under the influence of alcohol or something else, and placed him in the back of the police car. One of the officers then proceeded to search the appellant’s automobile. Under the front seat he found a portion of a cigarette wrapped in a brown paper. When asked if he knew anything about this the appellant replied that it was not his and that he “had been off the stuff for quite a while.” He stated that the car was his, the car was impounded, and the appellant was taken to the police station and booked.

The next morning one of the officers had a conversation with the appellant in which the appellant stated that he had not used any marijuana lately; that he knew nothing about this partial marijuana cigarette found in his car; that since he had owned the car no one had been in the car who used or smoked marijuana; that no one had driven the car since he owned it; and that the trousers he was wearing were his, and they were clean when he put them on the night of his arrest. The officers then searched the appellant’s car and found a marijuana seed directly behind the driver’s seat, and several particles of green vegetable matter on the floor of the car and under the rear seat. They also took debris from all of the pockets of the trousers that the appellant was wearing. The partial cigarette, the particles of green vegetable matter removed from appellant’s car, and the debris