People v. Sinclair

KNIGHT, J.

The appellant Sinclair and one Harry Stanch were charged jointly with having had in their possession unlawfully a quantity of morphine. They were tried together and found guilty; and each was sentenced to imprisonment in the county jail for ninety days. Sinclair appealed, and as grounds for reversal urges that the evidence as to him is insufficient to sustain the conviction and that the trial court erroneously instructed the jury.

There is no dispute about the facts. It appears therefrom that pursuant to a prearranged plan an inspector of the state narcotic division named Nelson and an informer were standing on the corner of Hyde and McAllister Streets in San Francisco about 6 o’clock in the evening, and in a few minutes an automobile driven by appellant approached the corner and stopped. The informer introduced Nelson to appellant, whereupon Nelson and the informer entered the automobile and occupied the rear seat. Nelson then told appellant that he wanted to buy some morphine for his “old lady”. Appellant inquired whether he “wanted to make a regular meet with him every day”, and Nelson replied that he did. Nelson and the informer then paid appellant $2.50 each in marked money for the purchase of the morphine, and appellant proceeded to drive up Mc-Allister Street. Upon reaching the corner of Polk and Mc-Allister Streets appellant stopped the automobile and picked up his co-defendant Stanch. The automobile then turned up and proceeded along Polk Street, but traveled only a few yards when it was crowded to the curb and stopped

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by an automobile driven by another state narcotic inspector named Conley. When appellant observed the Conley car closing in on him he directed Stanch to “drop the window and throw that out”, and complying with such directions Stauch immediately threw a match-box out of the window into the street; and as soon as the car was stopped Nelson alighted, picked up the match-box and it was found to contain two cubes of morphine.

Where, as here, possession as distinguished from sale is charged, in order to establish guilt it is essential to prove that the possession was immediate and exclusive and under the dominion and control of the person charged with such possession.

(People