People v. Contreras

PLUMMER, J. The appellant was convicted upon an information filed by the district attorney charging violation of an act to regulate the sale, possession, distribution, etc., of habit-forming narcotics, etc. From the judgment of conviction the defendant appeals, and upon this appeal alleges that the testimony is insufficient to support the conviction in that there is no testimony showing that the defendant had in his possession any of the narcotic drug described as “Marihuana” or “Indian Iiemp”, on his person or in his possession, or under his dominion and control.

The record shows the following: That the appellant, on June 28, 1937, rented room No. 22 in the Alaska Hotel, in the city of Sacramento. Between 10 and 11 o’clock of the same evening the appellant was approached by one Howard Guy, a colored man, who asked him if he could get him (Howard Guy), a marihuana cigaret. The appellant replied that he could, and Guy gave the appellant 25 cents. The appellant took the money and went to the Alaska Hotel. He was followed into the hotel by an officer by the name of Kenealy, a member of the Sacramento police department. The officer waited at the head of the stairs in the hotel, and in a few minutes observed appellant coming out of room No. 22, stopped him, turned him around, and proceeded with him back to the room. Upon it being opened from the inside by a codefendant of the appellant, the officer observed as he [549]entered the room that there was a paper of marihuana lying open on the bed. The officer stood the appellant at the foot of the bed, noticing as he did so that there was nothing on the floor around him. Carpeno, the codefendant of the appellant, was the only other person in the room; he was sitting at the head of the bed in the far corner. The room was four or five feet longer than the bed and three or four feet wider. After standing the appellant at the foot of the bed, the officer turned to a window and called to an officer by the name of Palmer, who was waiting on the street in front of the window, and he turned back in the room and noticed a crumpled cigaret on the floor immediately back of appellant. This cigaret contained marihuana in unlawful amounts; the cigaret was lying within two feet of the appellant. The testimony of the officer, as shown by the respondent’s brief which we have verified by an examination of the record, is as follows:

“Now, while you were calling out of the window, it is your theory that this cigaret was placed or thrown on the floor at that time, is that correct? A. Yes. Q. Do you know by whom? A. I suspect by this man Contreras. Q. You suspect. Do you know? A. I didn’t see it. Q. You didn’t see it? A. No. Q. It might have been placed there by Mr. Carpeno, might it not? A. It couldn’t possibly have been. I hardly thought possible. It was right at the foot of the bed. It is pretty hard to throw a cigaret that far in the condition the cigaret was rolled up. It was my contention that Contreras tried to throw it under the bed. Q. That is merely your deduction. It might have been possible that Mr. Carpeno might have put it there? A. Well, I wouldn’t say so. I don’t think so. Q. You don’t think so? A. I don’t think so.”