People v. Birch

Decision Date29 March 1961
Docket NumberCr. 7437
Citation12 Cal.Rptr. 122,190 Cal.App.2d 647
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Delroy BIRCH and Richard File, Defendants. Richard File, Appellant.
CourtCalifornia 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.

FORD, Justice.

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: 'I had Birch drive me over there and wait down the street, and I went in to contact Bert. I didn't take the stuff in with me because that's the way I do business. Birch knew what it was, and I left it with him while I went in the apartment.' 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: 'The possession may be individual, through an agent, or joint with another. People v. Graves, 84 Cal.App.2d 531, 534, 191 P.2d 32. All persons concerned in the commission of the crime, whether they commit the act constituting the offense or aid and abet in its commission, are principals. Pen.Code, § 31. We think it clear that one may aid and abet another in the possession of a narcotic, and that one who is not present may advise and encourage another in its commission.' 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: 'To prove a prima facie case of the corpus delicti here, all that was necessary was to show a reasonable probability of the unlawful possession of marijuana by a person. To this extent the evidence clearly showed the illegal possession in someone of the narcotic in question. It was not necessary to prove appellant's connection with the marijuana in order to establish the essential elements necessary to prove the corpus delicti. It is sufficient if the proof establishing the corpus delicti be of a...

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5 cases
  • People v. Toulson
    • United States
    • California Court of Appeals Court of Appeals
    • 22 Abril 1969
    ...and knowledge of its presence and narcotic character. (People v. Powell, 236 Cal.App.2d 881, 46 Cal.Rptr. 415; People v. Birch, 190 Cal.App.2d 647, 12 Cal.Rptr. 122; People v. Amos, 190 Cal.App.2d 384, 11 Cal.Rptr. 834.) However, these essential facts may be proved by circumstantial evidenc......
  • State v. Solomon
    • United States
    • Washington Court of Appeals
    • 11 Abril 1994
    ...470 U.S. 1053, 105 S.Ct. 1757, 84 L.Ed.2d 820 (1985); People v. Ruiz, 146 Cal.App.2d 630, 304 P.2d 175 (1956); People v. Birch, 190 Cal.App.2d 647, 12 Cal.Rptr. 122 (1961); People v. Cunningham, 188 Cal.App.2d 606, 10 Cal.Rptr. 604 cert. denied, 368 U.S. 933, 82 S.Ct. 370, 7 L.Ed.2d 195 (19......
  • Abrons v. Richfield Oil Corp.
    • United States
    • California Court of Appeals Court of Appeals
    • 29 Marzo 1961
  • People v. Thomas
    • United States
    • California Court of Appeals Court of Appeals
    • 7 Diciembre 1962
    ...court will not reweigh the evidence. (People v. Love, 53 Cal.2d 843, 850[1-2], 3 Cal.Rptr. 665, 350 P.2d 705; People v. Birch, 190 Cal.App.2d 647, 651[10-11], 12 Cal.Rptr. 122.) In reviewing the record, when the contention is insufficiency of evidence, the evidence must be viewed in the lig......
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