People v. Beard

• Citation: 46 Cal.2d 278,294 P.2d 29
• Decision Date: 24 February 1956
• Docket Number: Cr. 5809
• Court: United States State Supreme Court (California)
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Alfred Leonza BEARD, Defendant and Appellant.

Page 29

294 P.2d 29

46 Cal.2d 278

The PEOPLE of the State of California, Plaintiff and Respondent, v. Alfred Leonza BEARD, Defendant and Appellant.

Cr. 5809.

Supreme Court of California, In Bank.

Feb. 24, 1956.

Joseph H. Lewis and E. V. Cavanagh, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., William E. James, Marvin Gross and Joan D. Gross, Deputy Attys. Gen., for respondent.

TRAYNOR, Justice.

By information defendant was charged with one count of possessing marijuana, Health and Safety Code § 11500, and one prior misdemeanor conviction of the same offense. A jury trial was waived, and by stipulation the prosecution's case was submitted on the transcript of the preliminary hearing. Defendant testified in his own behalf. He was found guilty and sentenced to the state prison for the term prescribed by law. He appeals from the judgment and from the order denying his motion for a new trial.

Officer Buckner of the Los Angeles Police Department testified that shortly after noon on September 17, 1954, he and another officer were driving north on Maple Avenue when they observed defendant and a friend of his named Fortier driving west on 29th Street. Defendant was driving. The officers overshot 29th Street, went around the block and came back on 29th Street approaching Maple Avenue from the west. They observed defendant's car parked ahead of them. Defendnat and Fortier then started driving down the street toward the officers' car, and when they had gone about half a block, the officers stopped them, got them out of the car, and searched them and the car. A marijuana cigarette was found under the left-hand side of the front seat, and some brown cigarette paper was found in one of defendant's pockets. Defendant then accused the officers of 'plainting him.' Officer Buckner also searched the area near the place where defendant's car had been parked, and inside a fence found six marijuana cigarettes wrapped in wax paper. ¹

Defendant testified that he stopped for Fortier at his home about ten minutes before he was stopped by the officers. He stopped again at 29th and Maple so that Fortier could buy something at the corner, and defendant also got out of the car to fix his foot pedal. He did not see the officers find a cigarette in his car, and neither of them showed him the cigarette that Officer Buckner testified was found in the car, and he did not know that there was any marijuana cigarette in his car. He worked as a janitor and had left his car open on various occasions.

After he was found guilty, defendant secured new counsel and moved for a new trial on the ground of newly discovered evidence. Penal Code § 1181(8). He presented affidavits of Fortier and a person who lived near the scene of the arrest, and each affiant stated that he had observed the search of the car and that neither officer had found a marijuana cigarette in the car. He also filed an affidavit in his own behalf stating that he was personally unable to secure the evidence before the trial because he was in custody. His new counsel filed an affidavit stating that he had no knowledge as to why defendant's witnesses were not produced at his trial.

Defendant contends that the officers did not have reasonable cause to believe that he had committed a felony and that therefore his arrest and the search of his automobile were illegal. This case was tried before the decision in People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, no evidence was presented for the purpose of determining whether or not the officers had reasonable cause for making an arrest, and the record is completely silent on this question In People v. Farrara, Cal.Sup., 294 P.2d 21, we held that under these circumstances it must be presumed that the arrest was justified.

Defendant also contends, however, that the officers failed to comply with section 841 of the Penal Code and the arrest was therefore unlawful. That section provides: 'The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it, except when the person to be arrested is actually engaged in the commission of or an attempt to commit an offense, or is pursued immediately after its commission, or after an escape.' The record is not clear as to just what the officers said to defendant at the time of the arrest and search, and it may be conceded that there is some evidence that they did not expressly inform him 'of the intention to arrest him, of the cause of the arrest, and the authority to make it.' Since the trial court found, however, that defendant was arrested while engaged in the commission of the offense, there was no violation of section 841.

Defendant contends that the trial court erred in denying his motion for a new trial on the ground of newly discovered evidence.

Penal Code section 1181 provides:

'When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: * * *

'8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. * * *'

In People v. McGarry, 42 Cal.2d 429, 432, 267 P.2d 254, it was pointed out that a motion for a new trial is addressed to the sound discretion of the trial court, and that 'The elements of the standard by which a trial court in its discretion may properly grant a new trial on the ground of newly discovered evidence are set forth in People v. Sutton, 73 Cal. 243, 15 P. 86. At page 247, of 73 Cal., at page 88 of 15 P. it is stated that 'it must appear 'First, that the evidence, and not merely its materiality, be newly discovered; second, that the evidence is not cumulative merely; third, that it be such as to render a different result probable on retrial of the cause; fourth, that the party could not with reasonable diligence have discovered and produced it at the trial; and, that these facts be shown by the best evidence of which the case admits.' 1 Hayne, New Trial & App. § 83.' More recent cases have turned on a lack of one or more of the foregoing requirements, but the overall rules have withstood the test of time and properly state the existing law. See People v. Richard, 101 Cal.App.2d 631, 635-636, 225 P.2d 938.' 42 Cal.2d at page 433, 267 P.2d at page 256.

In the light of the foregoing rules it cannot be said that the trial court abused its discretion in this case. Thus, Fortier was present in defendant's car at the time of the arrest and search and was also charged with a violation of Health and Safety Code section 11500...