People v. Abair

• Decision Date: 09 March 1951
• Docket Number: Cr. 746
• Citation: People v. Abair, 228 P.2d 336, 102 Cal.App.2d 765 (Cal. App. 1951)
• Court: California Court of Appeals
• Parties: PEOPLE v. ABAIR.

Page 336

228 P.2d 336

102 Cal.App.2d 765

PEOPLE v. ABAIR.

Cr. 746.

District Court of Appeal, Fourth District, California.

March 9, 1951.

Bertram J. Brown, San Diego, for appellant.

Fred N. Howser, Atty. Gen., Dan Kaufmann, Deputy Atty. Gen., for respondent.

MUSSELL, Justice.

Prosecution for unlawful sale of narcotics.

Defendant, in an amended information, was charged with the crime of sale of narcotics, a felony, alleged to have been committed on or about the 10th day of January, 1950. The information also charged defendant with a prior conviction of the unlawful possession of Marijuana. Defendant pleaded not guilty and admitted the prior felony conviction. A jury trial was had and the defendant was found guilty as charged. After his motion for a new trial was denied, he was sentenced to the State's prison.

Defendant appeals from the judgment of conviction and from the order denying his motion for a new trial.

The defendant contends that the court erred (1) In refusing to admit the testimony of an attorney on the ground that it concerned privileged communication; (2) In not instructing the jury on accomplices and that an accomplice's testimony must be corroborated; and (3) In not allowing counsel for appellant to impeach the testimony of one of the witnesses when he was called by the appellant.

Statement of Facts.

On January 5, 1950, a State Narcotic Division agent contacted one Floyd Williams for the purpose of purchasing marijuana. Williams attempted to locate a supply at several places and, not being successful, took the agent to his home near 31st and K Streets in San Diego. There he placed a telephone call to a number given him by one of his contacts and talked to a person named 'Ted'. 'Ted' refused to bring the marijuana at that time and requested Williams to call him the next day. The following day Williams sold to the undercover agent three cans of marijuana which he had obtained from 'Ted'.

On the evening of January 10th, Williams called the defendant and asked him to bring six cans of marijuana. Williams was waiting for the defendant near 31st and K Streets when a car drove up, operated by another state agent, whose connection with the state office was not known to Williams. Williams went over to this car and was introduced to the agent by a person named Abbott, who was known to Williams. Shortly thereafter, the defendant and his wife drove up in a Willys sedan and parked at the back door of Williams' house. Williams proceeded to the sedan, where he found the defendant and his wife. Williams told the defendant to drive around the block while he went back to the other car to tell its occupants that he had to go to get the marijuana and told the defendant that he had a man that was going to buy six cans. Williams went back to the state car and then returned to defendant's car, getting in the back seat. After driving some distance, the defendant stopped the car at the top of a hill and obtained a sack from some bushes and handed it to Williams, who put it in the back seat of the car. This sack contained six cans of marijuana. Williams and the defendant then returned to 31st and K Streets, passing the undercover car, proceeded to the alley, parked and entered the Williams' house, where Williams poured the contents of the cans into a paper box. He then put the marijuana back into the cans, leaving a little from each can in the paper box for his own use. Williams awakened his wife, introduced her to the defendant's wife and told her that he had some marijuana in the closet; that he would be back in a few minutes. He put the six cans back into the paper sack, put the sack under his overcoat and proceeded to the undercover car, where he handed the cans which contained the marijuana to the state undercover agent, who gave him $80 therefor. Williams was then placed under arrest by the agent. Law enforcement officers, who were in the vicinity, immediately came to the scene of the arrest. These officers had witnessed the arrival of the state undercover car; they saw Williams get out of the car and walk into the alley, where he disappeared from view; saw the Willys turn into the alley and disappear; they witnessed the return of Williams to the state car and saw the Willys being driven from and return to the scene and disappear into an alley.

The officers proceeded to Williams' house, where they found the Willys sedan, then entered the house and found the defendant, his wife and Mrs. Williams therein. Mrs. Williams, when she heard the officers, retrieved the paper box from the closet and flushed most of the contents down the toilet, leaving some marijuana debris, which was recovered by the officers.

Upon being questioned, the defendant stated that his name was Ted Abair and that he had come over to sell a car to Williams; that the Willys sedan was his and that he was the only one that drove it. Defendant was taken to the police station and upon being again questioned, stated that he and his wife had gone to the Williams' house to play cards. On being asked if he brought the marijuana to the house, he stated that the officers would have to ask his attorney.

Witness Dan Abbott, who was with the undercover agent in the state car, identified the defendant and his wife as being the occupants of the Willys sedan upon both occasions when it was driven by the vicinity of 31st and K Streets.

The defendant took the witness stand in his own behalf and claimed that he had merely gone over to Williams' house to play cards; that Williams had borrowed his car and left the house; that he had nothing to do with obtaining the marijuana; that he arrived at the Williams' house about 11:30 in the evening and admitted that he had no money in his possession.

The circumstances attending the claimed error of the trial judge in refusing to admit the testimony of an attorney on the ground that it concerned a privileged conversation were as follows: At the former trial of the instant action in which the jury disagreed, the defense was permitted to introduce the testimony of an attorney who had a conversation in his office with Williams and the defendant and their respective wives. The attorney testified, in substance, that at this conference Williams had exonerated the defendant from any complicity in the offense with which he was charged; that Williams stated that the defendant and his wife did not know anything about the marijuana transaction at all and had not been in the Willys car when he, Williams, used it; that the defendant and his wife were at the Williams home on the night of January 10th for the purpose of playing cards. The record reveals that the defendant and Williams at the time of this conversation were subject to the charge of illegal possession of narcotics arising out of the transaction whereby the defendant sold marijuana to Williams on January 10th. The defendant had retained attorney Hervey when he met Williams, who was then seeking the services of an attorney. The defendant invited Williams to make use of the services of his attorney if he were unsuccessful in hiring his own counsel. As a result of this suggestion, the conference took place in the attorney's office. It further appears that the conversation was all concerning the transactions in which all parties seemingly had been engaged and for which they were liable for criminal prosecution. It further appears that at the conference Williams stated to attorney Hervey that he was interested in engaging his services to represent him and his wife, as well as the Abairs at the preliminary examination and that attorney Hervey told Williams that he saw no reason why he should not represent both he and the defendant and that the fee would be $350 for the preliminary examination.

The record of the testimony taken at the previous trial leading up to the introduction of the testimony of attorney Hervey is not before us, but it is apparently conceded that there was no objection then made to such testimony by anyone, nor does it appear from the record that Williams was present in court or was being questioned when the attorney's testimony was introduced or that Williams was afforded any opportunity to object to the introduction of such evidence.

At the second trial, while Williams was on the stand and being cross-examined, he was asked if he recalled talking to Mr. Edgar Hervey, an attorney, in his office and his answer was that he did. Mr. Brown, counsel for the defendant, then asked Williams to read certain testimony taken at the preliminary examination. The trial court then informed Williams that the communication made by him to attorney Hervey was privileged and that it could be objected to on that ground. The deputy district attorney then objected to the reading of the testimony to the witness on the ground that there was no foundation laid. Witness Williams then objected on the grounds that it was a privileged communication and the objection was sustained by the court. No further questions were then asked Williams as to the...