People v. Alamillo, Cr. 4776
| Decision Date | 09 October 1952 |
| Docket Number | Cr. 4776 |
| Citation | 248 P.2d 421,113 Cal.App.2d 617 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE v. ALAMILLO. |
William W. Larsen, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen., Frank Richards, Deputy Atty. Gen., for respondent.
In an information filed by the District Attorney of Los Angeles County, defendant was accused of the crime of violating section 11,500 of the Health and Safety Code of the State of California, a felony, in that he did on or about the 6th day of July, 1951, willfully, unlawfully, and feloniously sell, furnish, and give away a preparation of heroin.
Following the entry of a plea of not guilty, trial was had before a jury which returned a verdict finding defendant guilty of the offense charged against him. Motion for a new trial was denied and judgment pronounced.
From the judgment and order denying his motion for a new trial defendant prosecutes this appeal.
The factual background surrounding this prosecution may be summarized as follows: There was testimony on behalf of the prosecution that defendant operated a barbershop at 1816 East First Street in the city of Los Angeles. On July 6, 1951, at approximately 5:30 p. m. Deputy Sheriff Robert Ruskin accompanied by a confidential operator entered defendant's shop. Defendant testified that the name of the operator was Jack Rutherford; that he had known him for about three months, and had cut his hair a few times. Two other officers, Jack A. Jones and Thomas E. Farrell remained in an automobile in a parking lot adjoining the barbershop.
When Officer Ruskin and Jack Rutherford entered the barbershop they sat down and waited approximately half an hour. After defendant had finished working on a customer, he walked by and asked Ruskin and Rutherford what they wanted. Officer Ruskin said he wanted to buy a cap of heroin. Defendant said, 'Wait a minute,' and went back to his chair and started to work on another customer. About twenty minutes later, after this customer had left, Officer Ruskin and Rutherford walked to the front of the barbershop, at which time the defendant again asked Ruskin what he wanted, and Ruskin said, 'I would like one cap of heroin.' Defendant told Ruskin to go back and sit down, which Ruskin and Rutherford did. Again defendant proceeded to work on a customer. After this customer had left, the defendant got a broom and started sweeping the shop. Ruskin and Rutherford walked up to defendant, and the latter said to Ruskin, 'Put your $5.00 on the counter,' which Ruskin did, whereupon defendant placed in Ruskin's hand one capsule containing white powder. Ruskin and Rutherford then walked away and were joined by Sergeant Jones and Detective Farrell. Ruskin, Jones and Farrell returned to the barbership and placed the defendant in custody and proceeded to search him. Out of his right-hand pants pocket the officers recovered the marked $5 bill. In a room at the rear of the shop Ruskin found an empty capsule on top of a box of pills and debris on a studio couch. Officer Farrell found a capsule containing residue under the couch. Defendant when questioned in this room said,
The capsule purchased by Ruskin admittedly contained a mixture of morphine and heroin and the other capsules contained traces of heroin and morphine.
Sworn as a witness in his own behalf defendant testified that Officer Ruskin came into his shop about 5 o'clock with a man by the name of Jack Rutherford; that at the time he was cutting hair and there were seven or eight other people in the shop; that after about forty minutes or an hour, Rutherford approached him and said, The defendant said, 'What do you mean get anything?' Rutherford said, 'You know I am a hype.' Defendant testified he told him, ; that Rutherford said, 'Yes, but they don't want to sell me'; that after a while Rutherford again asked, ; that defendant then said, 'I can't do anything for you.' At that time, according to defendant's testimony, 'a fellow passed and hollered at him (apparently meaning that defendant hollered), 'Here, come here, I want to talk to you.' I talked to...
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...consideration whatever which would support the instruction. (People v. Carmen, 36 Cal.2d 768, 773, 228 P.2d 281; People v. Alamillo, 113 Cal.App.2d 617, 620, 248 P.2d 421.) But if there is no evidence to support such instruction, it need not be given. (People v. Sedeno, 10 Cal.3d 703, 718, ......
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