People v. Birch
Decision Date | 29 March 1961 |
Docket Number | Cr. 7437 |
Citation | 12 Cal.Rptr. 122,190 Cal.App.2d 647 |
Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Delroy BIRCH and Richard File, Defendants. Richard File, Appellant. |
Court | California Court of Appeals Court of Appeals |
Gerald J. Levie, Los Angeles, for appellant.
Stanley Mosk, Atty. Gen., Elizabeth Miller and Felice R. Cutler, Deputy Attys. Gen., for respondent.
The appellant Richard File and his co-defendant Delroy Birch were accused by indictment of possession of heroin in violation of section 11500 of the Health and Safety Code. Both were found guilty. File alone has appealed from the judgment of conviction.
The contention made on this appeal is that evidence of certain admissions alleged to have been made by File should not have been received 'because no corpus delicti had been established as to defendant File.' Pertinent evidence will be summarized. Part thereof is found in the transcript of the testimony given before the grand jury which was received in evidence at the trial, subject to specific objections, pursuant to a stipulation.
Joe Lesnick, an officer attached to the sheriff's narcotic detail, testified that on April 29, 1960, he had a certain hotel under surveillance. At about 10:45 p. m. a white Ford automobile was observed going slowly by the hotel; it stopped about two-thirds of a block away. Richard File alighted from the vehicle while Delroy Birch remained behind the wheel. File walked back to the hotel and entered it. The witness and another officer approached Birch and identified themselves as narcotic officers. Birch immediately threw a 'tin foil object' into the street. One of the officers picked up the object. Birch was placed under arrest. In the tin foil were four balloons, each of which contained a quantity of white powder (which a forensic chemist identified as heroin in testimony before the grand jury). After Birch was arrested, Officer Lesnick entered the hotel. There the appellant File and another man were in the custody of officers. With respect to the powder in the four balloons which Birch threw from the automobile, after that evidence was shown to him File said: 1
The appellant File testified in his own behalf. He denied that he made the statements as to which Officer Lesnick testified. In rebuttal, Detective Sergeant Bridges testified that such statements had been made by the appellant.
Constructive possession of a narcotic constitutes a violation of section 11500 of the Health and Safety Code. A conviction of such offense may be sustained by evidence of physical possession by the defendant's agent or by any other person when the defendant has an immediate right to exercise dominion and control over the narcotic. People v. White, 50 Cal.2d 428, 431, 325 P.2d 985. As this court said in People v. Bigelow, 104 Cal.App.2d 380, at page 389, 231 [190 Cal.App.2d 650] P.2d 881, at page 887: See also, People v. Moller, 177 Cal.App.2d 379, 382, 2 Cal.Rptr. 223; People v. Basco, 121 Cal.App.2d 794, 796, 264 P.2d 88; People v. Cuellar, 110 Cal.App.2d 273, 278, 242 P.2d 694.
The identity of the perpetrator of a crime is no part of the corpus delicti. People v. Cullen, 37 Cal.2d 614, 624, 234 P.2d 1; People v. Leary, 28 Cal.2d 740, 745, 172 P.2d 41. When the corpus delicti is established by evidence other than extrajudicial statements of the defendant, his connection with the crime may be proved by statements made by him. People v. Johnson, 146 Cal.App.2d 302, 304, 303 P.2d 615. In rejecting the contention that the trial court erred in admitting in evidence the extrajudicial confession and conversation of a defendant because, it was asserted, the corpus delicti had not been established by proof independent of such statements, it was said in People v. Cuellar, supra, 110 Cal.App.2d 273, at page 276, 242 P.2d 694, at page 696: ...
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