People v. Ramirez

California Court of Appeal Nov 26, 1928 No. Docket No. 1733.Published

Before: Conrey

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Holding. The court held that the defendant was not entrapped into committing the crime of selling marihuana because the evidence showed he was a willing vendor who sold the substance upon a simple request, and the court properly refused a requested jury instruction that would have improperly commented on the weight of the evidence.

Issues

Whether the defendant was entrapped into committing the unlawful sale of marihuana.
Whether the trial court erred in refusing a requested jury instruction regarding the weight to be given to the testimony of officers involved in the investigation.

Disposition. affirmed

Quotations verified verbatim against the opinion

“There was no element of persuasion outside of the ordinary elements of purchase and sale between a willing purchaser and a willing vendor, where the offer is made by the purchaser and accepted by the vendor.”

“Such instruction would have been an invasion by the court upon the proper functions of the jury, whose duty it was to weigh the evidence and find the facts.”

CONREY, P. J.

By information duly filed, the defend ant was convicted of the crime of violation of the State Poison Act, a felony, committed as follows:

“That the said Jose Ramirez on or about the 26th day of July, 1928, at and in the County of Los Angeles, 'State of California, did wilfully, unlawfully and feloniously sell, furnish and give away flowering tops and leaves of Indian Hemp containing more than four grains of Indian Hemp to the avoirdupois ounce, in violation of an Act entitled, ‘An Act to regulate the Sale and Use of Poisons in the State of California, and providing a penalty for the violation thereof. ’ ”

Defendant appeals from the judgment, and from an order denying his motion for a new trial. The so-called State Poison Act is a statute enacted in the year 1907 and amended at subsequent legislative sessions. The particular act alleged to have been committed by the defendant is forbidden by section 8 of that statute as amended in the year 1927. (Stats. 1907, p. 124; Stats. 1927, p. 106.) The statute is also contained, as Act 5994, in Deering’s General Laws, 1923 edition. (See Deering’s Consolidated Supplement of 1927, p. 1724, for said section 8, as now in force.) Section 8 reads in part as follows: “It shall be unlawful for

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any person ... to sell, furnish, or give away . . . flowering tops and leaves of . . . Indian Hemp ...” excepting upon the written order and prescription of a physician, etc. The fact that defendant made a sale of the prohibited article, as charged in the information, was established by the evidence. The article in question is known by the common name of marihuana. The principal ground of appeal is that' the evidence of the prosecution itself shows “that a trap was being laid by the colored woman Alice Joiner and the officers of the law to induce and persuade him to commit a- crime"; and that where the commission of acts constituting such crime is solely the result of such inducement and persuasion, a conviction will not be sustained. Numerous authorities on this question are cited in the brief for appellant. It appears, however, that the rule invoked by appellant has been carefully considered, and the limitations under which it will be applied have been stated in recent decisions of our own state. In

People v. Ramirez

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CONREY, P. J.

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