People v. Bean, Cr. 1093

• Decision Date: 19 March 1957
• Docket Number: Cr. 1093
• Citation: 308 P.2d 27,149 Cal.App.2d 299
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond BEAN, Defendant and Appellant.

Page 27

308 P.2d 27

149 Cal.App.2d 299

PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond BEAN, Defendant and Appellant.

Cr. 1093.

District Court of Appeal, Fourth District, California.

March 19, 1957.

Hearing Denied May 15, 1957.

Holliday & Folsom, San Diego, for appellant.

Edmund G. Brown, Atty. Gen., G. A. Strader, Deputy Atty. Gen., for respondent.

BARNARD, Presiding Justice.

The appellant and two other youths were jointly charged with a violation of section 11500 of the Health and Safety Code, it being alleged that on or about March 12, 1956 they unlawfully possessed a certain narcotic, marijuana. A jury returned verdicts of guilty as to each defendant. The court denied probation, and judgment was entered committing all three defendants to the California Youth Authority. The appellant has appealed from the judgment and from an order denying his motion for a new trial. He admits that the evidence, although conflicting, was sufficient to support the verdict but contends that prejudicial error appears in connection with the admission of one item of evidence, and in one statement made by the court to the jury.

On March 12, 1956, at about 7:45 p. m. a Mrs. Graves parked her car in a drive-in restaurant in Chula Vista. A Mrs. Mason and Peggy Ryan, a 14-year old girl, were in the car with her. They had gone there looking for Mrs. Graves' daughter Betty. Parking spaces were marked on the pavement with white lines, and Mrs. Graves parked in Stall No. 5. A car owned by the appellant Bean and occupied by the three defendants was parked in Stall No. 3, with an intervening space between it and Mrs. Graves' car.

A few moments after arriving at the drive-in Peggy Ryan went over to the car occupied by the three boys and inquired as to whether or not they knew Betty or had seen her. She received a negative reply and returned to the Graves car. A few minutes later she again went over to the other car and talked to the boys. She noticed a strange odor in that car which she described as sweet and musty; and she observed the three boys smoking a brown or tan-colored cigarette, which they were passing from one person to another. The radio in the boys' car was turned up very loud and the boys were acting in a peculiar manner, waiving their arms, and talking and cursing in extremely loud voices. Peggy thought they were drunk. The language and actions of the boys were observed also by Mrs. Graves and Mrs. Mason. The license number of this other car was written down by one of the occupants of the Graves car. The occupants of the Graves car then saw two cigarette butts flipped or dropped from the other car, and that car drove away. Mrs. Mason and Peggy went over to where the other car had been parked and picked up several cigarette butts. Mrs. Mason picked up a tancolored cigarette butt. She observed that it was different from the other cigarette butts, she smelled it and had Peggy smell it. Peggy testified that it smelled like what she had smelled from the car earlier, but that 'the cigarette wasn't as strong as the odor in the car.' They then drove to the police station, and Mrs. Mason turned the tan-colored cigarette butt over to the police officers. The cigarette butt was identified as containing marijuana, and was introduced in evidence. There was also evidence that this cigarette butt had the appearance of being home-made. A police officer with experience in the detection of narcotics testified that the odor of marijuana which has been partly burned is sweet and musty, and that to him it smelled something like burning alfalfa. The appellant was arrested on March 27, 1956, at which time his automobile was taken by the officers and locked in a police garage. Two days later the car was searched and marijuana seeds were discovered scattered under the driver's seat, under the floor mat near the door, and along the ridge of the rear door on the left side of the car. These seeds were collected, identified and introduced in evidence.

The appellant first contends that the court committed prejudicial error in admitting the evidence with respect to the finding of these marijuana seeds in his automobile seventeen days after the date of the commission of the offense for which he was on trial. It is argued that this was evidence of an independent crime, and that it was not admissible because it did not tend to prove any fact material to the charge on which he was being tried, and was not a part of the res gestae, and did not tend to show guilty knowledge or a common plan or scheme. He relies particularly on the cases of People v. Albertson, 23 Cal.2d 550, 145 P.2d 7; People v. Lapin, 138 Cal.App.2d 251, 291 P.2d 575, and People v. Musumeci, 133 Cal.App.2d 354, 284 P.2d 168.

An objection to this evidence was made, in the absence of the jury, on the ground that it was an attempt to show an entirely different crime, and one for which the other defendants were not charged. The court ruled that the evidence was admissible, stating that it might show familiarity and association with narcotics of the same kind the appellant was accused of having in that cigarette; that it was up to the jury to determine whether he had knowledge of it; that counsel could bring out when the appellant bought the car and whether he knew anything about it; and that it was up to the jury to determine whether or not it was in the car when he bought it, or whether he put it there. After the jury returned the court, at the...