People v. Ramos

VALLÉE, J.—Defendant was convicted of having on January 18 and 19, 1957, sold marijuana to John Jensen, a minor 17 years of age. On stipulation the cause was submitted on the transcript of the preliminary examination, each side reserving the right to produce additional evidence. Defendant [157]appeals from the judgment and the order denying his motion for a new trial.

On December 1, 1956, Jensen was introduced to defendant by a mutual acquaintance. Defendant sold Jensen a half pound of a plant-like substance which was represented to be marijuana for which Jensen paid him $35. The substance was brownish in color and contained stems, seeds, and leaves. Jensen made and smoked about 150 cigarettes from the half pound. On January 18, 1957, Jensen telephoned defendant and told him he “wanted to score” and needed a pound. Defendant had half a pound which he sold to Jensen for $35. The substance was similar in appearance to that purchased by Jensen on December 1, 1956, and contained the same materials. Jensen made and helped smoke about 65 cigarettes from this half pound. On January 19, 1957, defendant sold Jensen “a quantity of merchandise” for $60. This was a better substance than those purchased previously; it did not contain as many stems or seeds and had more leaves. Jensen smoked about 85 cigarettes from this purchase.

On each occasion that Jensen smoked the substance he purchased from defendant he had a dry throat, hunger pains, lightheadedness, slower reactions, and unusual sound perceptions. He had smoked marijuana prior to the first purchase from defendant and had received the same effects as he received from the substances purchased from defendant. There was evidence that the effects Jensen received could only have been caused by marijuana; that it would not be possible to combine and obtain these effects from any drug except marijuana.

On cross-examination Jensen was asked how long it took him to smoke the 150 cigarettes he made out of the first purchase on December 1, 1956. He replied that it took him that week and the following week. He said he “went to 150 cigarettes in two weeks instead of every week end” because he had the quantity there; he had never had that quantity before. The following then occurred: “Q. "What did you do with the balance of it? A. I won’t say. Mr. Marks [attorney for defendant] : Well, your Honor. The Court; Not necessary. It is immaterial. Mr. Marks : Well, this is sort of a half and half. The defendant [sic] is testifying the things which might incriminate him, and when asked a further question-The Court: Neither goes to prove nor disprove any of the issues in this case.” Defendant asserts the court erred in not compelling Jensen to answer. Defendant was not