People v. Lopez

GRIFFIN, P. J. Defendant-appellant was convicted by a jury of unlawful sale of narcotics. (Violation of Health & Saf. Code, § 11500.) He admitted a prior conviction of a felony [347](possession of narcotics.) A reversal is sought on the claimed ground of prejudicial misconduct of the trial judge.

According to the testimony of one O. C. Reed, special employee of the Narcotics Bureau, on February 20, 1958, he and one Ann Massey, a woman who had been previously convicted of selling narcotics on different occasions, saw defendant near the International Pool Hall and Bar, in Fresno. Defendant spoke to Ann and continued on into the bar. Later, he came back to her and she told him Beed would like to buy some narcotics. Defendant said he would go and obtain some but he would have to have the money ($5.00) for a single capsule. Beed counted out five one-dollar bills. Defendant placed them in his pocket and told her he would return in a little while. Several narcotic agents were stationed in a Japanese hotel room near-by and they testified they saw the money pass to defendant and that Beed gave a known signal, by tipping his hat to the other officers, that defendant was going to obtain narcotics for him. Defendant drove away in a car with a known user. Beed began talking to Ann. About 30 minutes later defendant returned and went into the bar and Beed followed. Defendant told Beed to remain there because he wanted to talk with Ann, alone. He walked out to Ann and had a conversation with her. Ann and defendant walked toward an alley and Beed followed them. He saw defendant pass something to Ann and then defendant disappeared. Ann returned to Beed and gave him a capsule and said: “This is the stuff.” She said defendant was afraid of Beed. Beed took the capsule containing a powdery substance to his hotel and it was subsequently analyzed and found to contain opium. The other officers corroborated Beed’s testimony insofar as they could see from the hotel window and saw the money pass to defendant.

Defendant failed to testify at the trial but produced Ann as his witness. She had been sentenced to prison on several sales of narcotics and apparently had previously applied for probation and had made a statement to the probation officer in reference to her activities in this traffic which the trial court in this action had previously read and considered. Her story on the witness stand was generally that she and Beed were talking near the International Pool Hall about 5 p.m. on the day in question; that she met defendant walking down the street, stopped him, and inquired if he would give her a ride to her mother’s home • that Beed handed defendant $5.00; that he took it and asked her what it was for; that she told de