People v. Allen

WOOD, P. J. The three defendants, Paul Allen, Ann Allen, and Patrick Tully, werfe accused of unlawfully possessing heroin. Trial by jury was waived. Upon stipulation the cause was submitted on the transcript of the preliminary examination, with the right to present additional evidence. Defendants were adjudged guilty. Allegations of prior felony convictions of Paul Allen and Tully were found to be true (three convictions as to Allen and two as to Tully). Each of the defendants, Paul Allen and Tully, appeals from the judgment against him and from the order denying his motion for a new trial. (Ann Allen has not appealed.)

Appellants contend that the heroin was obtained by illegal search and seizure; that the court erred in certain respects while arraigning and sentencing them; and that the evidence of prior convictions was insufficient.

[343]The arrest of the defendants was made on October 24, I960. About 30 days prior thereto, Officer Fessler had arrested one Barbara Hazlett upon a charge of addiction to use of narcotics, and she had furnished bail upon that charge. About noon on the day of the arrest herein, Barbara Hazlett told Officer Fessler that her husband was buying narcotics from Tully who was the delivery boy for Paul Allen, who was the main source of the supply. At that time she also said: she had no way of getting in touch with them, but when they called her she would call the officers; and that if the officers followed Tully after he made a delivery they would find Paul Allen. About 4 p.m. of that day, she told Officer Fessler: that Tully was going to deliver narcotics to her, about 5 p.m., on Eastern Avenue at a place about one block south of the San Bernardino Freeway; and that she needed $50 to go through with the deal. The officer took her to the jail where her husband had been booked on a charge of possession of narcotics, and the officer assisted her in withdrawing $50 from her husband’s property to complete the narcotics transaction.

Officers Fessler and Dorrell went to the place designated by Hazlett as the place where the delivery would be made, and there they saw her and Tully have a conversation, go into a small grocery store for a short time, then come outside, enter separate cars, and leave. Officer Fessler knew Tully—having arrested him previously for using narcotics. The officers followed Tully when he drove away from that place, but “lost” him when he made various turns. Later, they found his car at 9554 East Whittier Boulevard. The manager there said that the person who drove the Tully car was in apartment 20.