People v. Bigelow

Decision Date23 May 1951
Docket NumberCr. 4583
Citation231 P.2d 881,104 Cal.App.2d 380
PartiesPEOPLE v. BIGELOW et al.
CourtCalifornia Court of Appeals Court of Appeals

Morris Lavine, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

VALLEE, Justice.

Harry Bigelow and Florence Ivery were tried by a jury and convicted of a violation of section 11500 of the Health and Safety Code--possession of a preparation of heroin. Bigelow appeals from the judgment and from the order denying his motion for a new trial. He asserts: (1) The corpus delicti was not established. (2) The evidence was insufficient to prove that he possessed the narcotic. (3) The evidence was insufficient to prove guilty knowledge. (4) The evidence was insufficient to prove 'aiding and abetting.' (5) The court erred in the admission and exclusion of evidence. (6) The prosecutor was guilty of prejudicial misconduct. (7) The court erred in the giving and refusal of instructions. (8) The use of a purported confession violated constitutional guarantees.

About 5:00 p. m. on April 13, 1950, three officers were parked in an automobile near 1134 East 127th Street, Los Angeles. About 6:00 p. m. Bigelow came out of the house at that address, changed the water, and went back into the house. About 10:00 p. m. he again left the house, entered a car, and drove to Compton where he was stopped by the officers who had followed him.

The officers then searched Bigelow and the automobile. He told them he was looking for a house to buy and that he lived at 1134 East 127th Street. The search revealed nothing. Bigelow testified 'he [an officer] shook me down, he said that he heard that I was fooling with stuff--it is the word stuff again--and I asked him what did he mean, and he said narcotics.' The officers and Bigelow then returned to 1134 East 127th Street. One of the officers approached the front door of the house with Bigelow and rang the bell. Defendant Florence Ivery opened the small aperture in the front door and looked out. The officer identified himself and Bigelow said, 'Open the door, honey, this is a deputy sheriff with me.' Florence closed the small aperture and the officer heard footsteps running toward the back of the house. The officer then forced the front door open with his shoulder. When he got in Florence was standing in the center of the living room moving her right hand and crumpling her fist. As she did so white powder fell to the rug. The officers opened her hand and found therein a crumpled and shredded piece of paper. Some of the white powder was picked up from the rug and examined by a chemist. It was heroin.

The officers searched all the rooms in the house at that time but did not move all the furniture. When they left the house all doors and windows were locked and Bigelow locked the front door.

Bigelow, Florence, and several other people who had entered the house, were taken to a sheriff's office. The officer asked Bigelow if he had any more narcotics at the house. He said he did not; that he did not use narcotics; that Florence used a little.

The next day three officers returned to the house at 1134 East 127th Street with Bigelow and an agent of the Federal Bureau of Narcotics for the purpose of further searching the front bedroom because the officer in charge was not satisfied with the search of that room made the night before. They entered the house with a key. The testimony with respect to the key is as follows: 'We used the key to the front door which had been placed in the defendant's property at the County Jail the previous night when he was booked,' and 'We used the key that he had obtained from his property to gain admittance to the location and then we proceeded to search that bedroom that I hadn't searched the previous night.' All of the doors and windows were still locked. The officers searched the house again and in so doing moved a vanity dresser in the front bedroom. On the floor under the dresser they found an aluminum tube containing 81 capsules of white powder. In a closet off this room there were numerous men's shirts. In another bedroom they found a cardboard box labeled 'empty gelatin capsules.' Ten of the capsules analyzed were heroin. After he found the capsules one of the officers asked Bigelow if the 'stuff' he found belonged to him. Bigelow replied, 'Well, you are a good detective, arent't you?' The federal agent asked Bigelow if the 'stuff' belonged to him and he said, 'I will tell you about that later.'

Later the same day in the presence of Florence an officer asked Bigelow if the 'stuff' found in the house was his and told him he did not want him to say it was his if it was not. Bigelow replied, 'Well, the stuff is mine.' The officer repeated the question and again said he did not want him to say it was his if it was not. Bigelow replied, 'Well, I am not saying it just to be saying it, I am saying it because it is mine.' In the same conversation the officer told Bigelow that he did not want him to take the blame for anything that did not belong to him, that if it did belong to him to say so. Bigelow said, 'Yes, that is mine. She has a previous narcotic rap on her.' The federal narcotic agent testified that the word 'stuff' means a narcotic or dangerous drug of some kind to persons who use or possess narcotics.

Bigelow testified he had some of his clothes in the house [104 Cal.App.2d 385] at 1134 East 127th Street; that he had some suits in the closet off the front bedroom and some shirts locked in a compartment in the same room. He denied possession of any heroin and denied making the statements testified to by the officers. Bigelow and Florence had been seen at that house frequently during the preceding year and a half.

The evidence established the corpus delicti. It showed the illegal possession of heroin by someone. It is not necessary to prove a defendant's connection with the narcotic in order to establish the corpus delicti. People v. Chan Chaun, 41 Cal.App.2d 586, 589, 107 P.2d 455.

The evidence was also sufficient to establish that Bigelow 'possessed' the narcotic, that he had knowledge of its presence, and that he knew the substance in his possession was a narcotic. "A person has 'possession' of a chattel who has physical control with the intent to exercise such control, or, having had such physical control, has not abandoned it and no other person has obtained possession. (Restatement Torts, section 216)." People v. Gory, 28 Cal.2d 450, 455, 170 P.2d 433, 436; People v. Noland, 61 Cal.App.2d 364, 366, 143 P.2d 86. Bigelow told the officers he lived at 1134 East 127th Street. He had the key to the house. He was seen frequently there. His clothing was in the bedroom where the 81 capsules were found. He was at first evasive in his answers to the officers. He later said the 'stuff' was his. He knew at that time that 'stuff' meant a narcotic. The evidence was ample to warrant the jury in inferring that Bigelow occupied the front bedroom, that the heroin found in that room belonged to him, that he knew it was there and that it was heroin. People v. Hoff, 84 Cal.App.2d 398, 190 P.2d 616; People v. Salo, 73 Cal.App.2d 685, 167 P.2d 269. In view of the fact that the evidence was sufficient to establish that Bigelow illegally possessed the narcotic, we need not consider his contention that it was insufficient to establish that he aided and abetted Florence.

On cross-examination the prosecutor asked Florence Ivery, 'As a matter of fact, you were on the 13th of April the commonlaw wife----.' She answered, 'No, I am no commonlaw wife, uh-uh.' After the answer Bigelow's objection to the question was sustained. He did not move to strike the answer or ask the court to disregard the fragmentary question or the answer. Assuming without deciding that the question was improper, there was no error. The answer was favorable to Bigelow. An answer to an improper question that is favorable to the defendant is a complete reply to a claim of prejudicial error in asking the question. People v. O'Donnell, 11 Cal.2d 666, 671, 81 P.2d 939.

On direct examination Florence Ivery was asked whether she knew what heroin was. She replied that she had seen it in the presence of officers but if someone showed it to her and asked her to identify it she would not know it. On cross-examination she testified that she did not know what heroin was until the officers showed her on April 14th what they supposedly found, and that never to her knowledge had she seen any before that. She was then interrogated as to whether she had not seen heroin in the Compton municipal court on March 13, 1950. The interrogation in full is set forth in the margin. 1 Bigelow asserts that the prosecutor was guilty of prejudicial misconduct in making this inquiry, that the court erred in overruling his objections and in denying his motion, and that the same was prejudicial to him. There was no error. Insofar as the prosecution was against Bigelow, Florence was a witness. A witness may be cross-examined as to any facts stated in his direct examination or connected therewith. Code Civ.Proc., § 2048. The fact that an inquiry on cross-examination may bring to light criminal conduct of a witness does not render such cross-examination erroneous when it is relevant to the subject matter of the direct examination. People v. Crow, 48 Cal.App.2d 666, 671, 120 P.2d 686. See People v. Dabb, 32 Cal.2d 491, 499, 197 P.2d 1.

On direct examination Bigelow was asked if he had ever been convicted of a felony. He said he had been in 1935. He was then asked if it was a narcotic conviction. He said it was not. On cross-examination he was questioned as set forth in the margin. 2 Bigelow asserts that the prosecutor was guilty of prejudicial misconduct in this corss-examination. A cross-examiner's inquiry is limited to the fact of conviction and the nature of the offense. He may not go...

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