People v. Smith

THE COURT. By indictment, Melvin Johnson was accused in Counts I and III, and Milton Smith in Count II, of selling and furnishing heroin. “John Doe Casey” was jointly accused in Counts I and II. Smith was charged with two prior felonies and Johnson with one, namely, violation of federal narcotic law. Both defendants were represented by counsel; however, at the conclusion of the prosecution’s case, Smith asked that the public defender be relieved as his counsel. He represented himself until the probation and sentence hearing, when the public defender was reinstated as his counsel.

A jury trial was duly waived as to offenses charged and the prior convictions, and by stipulation the cause was submitted on the evidence introduced before the Grand Jury, with the right to offer additional evidence.

Smith and Johnson were tried separately. Smith moved to set aside his waiver of a jury trial. No reason for the request was stated, except that he had changed his mind. The motion was denied. Additional evidence was introduced by the prosecution and the defendants.

The court found each defendant guilty as charged and the allegations as to prior convictions were found to be true. Motions for a new trial were denied, as was probation. Each defendant was sentenced to state prison. Smith appeals from the judgment and Johnson appeals from the judgment and the order denying probation. Both defendants applied for counsel on their appeals. We read the records, determined that the appeals were wholly without merit, as will hereafter appear, and denied the applications. Defendants have filed briefs.

Although there are separate appeals, they will be disposed of in a single opinion. First to be considered is the appeal of Smith. On October 5, 1960, Officer Hariston and Eddie Pier met Milton Smith. Pier asked Smith where he and Hariston could get some “stuff,” which they all understood to mean heroin. Smith stated that he knew a guy who had some. They drove to Walton Place in Los Angeles, where Smith had a conversation with one Casey. Smith reported to Hariston and Pier that Casey was going to get some for them. He told Hariston to drive around the corner. Approximately 10 minutes later Casey came to the passenger side of the car. [765]Hariston gave Pier some money, which Pier gave to Casey, in return for which Casey gave the heroin to Pier who received it and gave it to the officer.

On October 20, 1960, Officer Hariston and Eddie Pier again encountered Smith. He got into Hariston’s car and the officer asked him if he could get any “stuff.” Smith answered that he could. They drove to South Kenwood Avenue where Smith said: “Here comes the guy. How many do you want?” Hariston told defendant to get him two. He handed Smith some money, Smith got out of the car, walked over to the person and walked away with him. Approximately 10 minutes later Smith returned and handed two capsules of heroin to the officer.