People v. Coleman, Cr. 2687

CourtCalifornia Court of Appeals
Writing for the CourtBRAY; PETERS, P. J., and FRED B. WOOD
Citation224 P.2d 837,100 Cal.App.2d 797
PartiesPEOPLE v. COLEMAN.
Docket NumberCr. 2687
Decision Date06 December 1950

Page 837

224 P.2d 837
100 Cal.App.2d 797
PEOPLE

v.
COLEMAN.
Cr. 2687.
District Court of Appeal, First District, Division 1, California.
Dec. 6, 1950.

Page 839

[100 Cal.App.2d 799] Leo A. Sullivan, Edwin A. Connor, Oakland, for appellant.

Fred N. Howser, Atty. Gen. of the State of California, David K. Lener, Deputy Atty. Gen., for respondent.

BRAY, Justice.

Defendant and one Haynes were tried by the court without a jury for violation of section 11500 of the Health and Safety Code (transportation of heroin). Haynes was acquitted and defendant convicted. Defendant appealed from the judgment of conviction and from the order denying a new trial.

Facts.

Defendant and Haynes were seamen aboard the transport Hugh J. Gaffney, which on October 10, 1949, arrived at Oakland after a 28-day voyage from Yokohama. In the afternoon it shifted berth to Fort Mason, San Francisco. Haynes left the ship at Oakland, came to San Francisco and borrowed a sedan from his brother-in-law. He met the ship at Fort Mason, picked up Coleman, and four or five other shipmates, and drove them to a barber shop in the Fillmore district where they had several drinks. When Haynes and defendant left the barber shop, Haynes was to drive defendant to Oakland to a party being given by a girl friend of defendant. However, instead of going directly there, they claimed they were going out to Divisadero Street to pick up a cousin of Haynes, so that Haynes would not have to return from Oakland alone. He claimed that the car's battery was weak and he needed some one to push the car after stopping to get it started. Apparently some time elapsed between the time they left the barber shop and when they were arrested. Haynes said it was about an hour and they were 'Just riding and looking.' They had not yet gone to the consin's home. Haynes claimed they left the barber shop around 8 or 8:30 that evening. [100 Cal.App.2d 800] About 11:15 Officers Van Dervort and Keating of the Special Narcotics Detail noticed the car in which Haynes and defendant were riding, driving without lights. The officers' car followed it for two blocks, then turned on the siren and red lights, and forced the car to the curb. Keating, who was driving, got out of the police car on the left side, Van Dervort on the right. As they approached the Haynes car, Van Dervort was in advance of Keating. Both officers noticed a 'commotion' in the front seat. Keating noticed defendant lean forward in his seat at an angle of about forty-five degrees from the perpendicular. As Van Dervort put his hand on the right front door he saw defendant lean forward and make a throwing motion with his right hand between his legs toward the floor of the car. He at no time saw anything in defendant's hand. Van Dervort then pulled defendant out of the car, and reaching under the seat at the point where he had seen defendant make the gesture, found a small bottle containing a white powder. Van Dervort asked defendant why he had been bending over and defendant stated that he was just bending forward, but gave no reason for so doing. It is not clear from Van Dervort's testimony as to when he asked this question of defendant. Haynes testified that before Van Dervort discovered the bottle the latter asked defendant, 'What is that you put under the seat?' Defendant denied putting anything under the seat, and both he and Haynes denied any knowledge of the bottle or its contents. Both officers put their initials on the bottle, and Van Dervort '[t]ook it to the City Prison and booked it as evidence.' Van Dervort identified a bottle with white powder in it as the bottle he found in the car. It was then marked for identification. A chemist for the State Division of Narcotic Law Enforcement testified that he received this bottle from the Police Property Clerk's office, examined its contents and found it to be 31 grains of heroin.

1. Sufficiency of the Evidence.

Defendant contends that the evidence is insufficient to prove him guilty of transportation of heroin. He stresses the fact that

Page 840

Van Dervort saw nothing in defendant's hand when he made the throwing motion. However, the throwing motion plus the finding of the bottle at the place indicated by the gesture, raises the reasonable inference that defendant threw it there. He further contends that the evidence is improbable and contradictory. He points out that at the preliminary examination Van Dervort first stated that it was [100 Cal.App.2d 801] Haynes who made the throwing motion. It is obvious from an examination of the part of the transcript read into evidence that while he said 'Haynes,' he meant defendant. In the very connection in which he used Haynes' name he pointed out that Haynes was in the driver's seat and the throwing gesture was made by the man sitting alongside of him. Moreover, at the preliminary examination, as soon as the matter was called to his attention he corrected the mistake. In any event, it was for the trier of the facts to determine Van Dervort's credibility and to reconcile any discrepancies in his testimony, if any there were.

Defendant insists that there was a conflict in the testimony of the two officers as to where Van Dervort was when defendant leaned forward, contending that under Haynes' testimony, Van Dervort could not have seen a throwing gesture if one were made by defendant. A reading of the testimony shows that if there is a conflict it is more apparent than real. The resolving of such conflict is exclusively the province of the trial court. People v. O'Moore, 83 Cal.App.2d 586, 189 P.2d 554.

The officers saw the automobile in motion with defendant in it, saw defendant act in such a manner as to justify the belief that he had the heroin in his possession when he threw it under the seat. This was sufficient to fully support the charge of transporting heroin. While mere possession of a narcotic is not evidence of transportation, In re Chaus, 92 Cal.App. 384, 268 P. 422, here there was more than mere possession. Defendant was carrying the...

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18 practice notes
  • People v. Rogers, Cr. 14756
    • United States
    • United States State Supreme Court (California)
    • June 22, 1971
    ...People v. Miller, 162 Cal.App.2d 96, 98, 328 P.2d 506; People v. Holliday, 120 Cal.App.2d 562, 564, 261 P.2d 301; People v. Coleman, 100 Cal.App.2d 797, 801, 224 P.2d 837.) Possession may be either actual or constructive; the latter is established by showing that defendant maintained some c......
  • Rideout v. Superior Court of Santa Clara County, S.F. 22530
    • United States
    • United States State Supreme Court (California)
    • October 10, 1967
    ...(People v. Miller, 162 Cal.App.2d 96, 98, 328 P.2d 506; People v. Holliday, 120 Cal.App.2d 562, 564, 261 P.2d 301; People v. Coleman, 100 Cal.App.2d 797, 801, 224 P.2d 837.) Knowledge by the defendant of both the presence of the drug and its narcotic character is essential to establish unla......
  • People v. Riser, Cr. 5896
    • United States
    • United States State Supreme Court (California)
    • December 31, 1956
    ...at the scene of the crime, and that between receipt and analysis there has been no substitution or tampering, see People v. Coleman, 100 Cal.App.2d 797, 801, 224 P.2d 837; 21 A.L.R.2d 1216, 1219, 1236-1237, but it has never been suggested by the cases, what the practicalities of proof could......
  • People v. Valerio, Cr. 4159
    • United States
    • California Court of Appeals
    • December 29, 1970
    ...and somewhat in conflict (see People v. Clark, 62 Cal.2d 870, 881, 44 Cal.Rptr. 784, 402 P.2d 856; but cf. People v. Coleman, 100 Cal.App.2d 797, 803, 224 P.2d 837; People v. Crane, 34 Cal.App. 760, 762--765, 168 P. Whatever may be the appropriate rule generally, the case at bench presents ......
  • Request a trial to view additional results
18 cases
  • People v. Rogers, Cr. 14756
    • United States
    • United States State Supreme Court (California)
    • June 22, 1971
    ...People v. Miller, 162 Cal.App.2d 96, 98, 328 P.2d 506; People v. Holliday, 120 Cal.App.2d 562, 564, 261 P.2d 301; People v. Coleman, 100 Cal.App.2d 797, 801, 224 P.2d 837.) Possession may be either actual or constructive; the latter is established by showing that defendant maintained some c......
  • Rideout v. Superior Court of Santa Clara County, S.F. 22530
    • United States
    • United States State Supreme Court (California)
    • October 10, 1967
    ...(People v. Miller, 162 Cal.App.2d 96, 98, 328 P.2d 506; People v. Holliday, 120 Cal.App.2d 562, 564, 261 P.2d 301; People v. Coleman, 100 Cal.App.2d 797, 801, 224 P.2d 837.) Knowledge by the defendant of both the presence of the drug and its narcotic character is essential to establish unla......
  • People v. Riser, Cr. 5896
    • United States
    • United States State Supreme Court (California)
    • December 31, 1956
    ...at the scene of the crime, and that between receipt and analysis there has been no substitution or tampering, see People v. Coleman, 100 Cal.App.2d 797, 801, 224 P.2d 837; 21 A.L.R.2d 1216, 1219, 1236-1237, but it has never been suggested by the cases, what the practicalities of proof could......
  • People v. Valerio, Cr. 4159
    • United States
    • California Court of Appeals
    • December 29, 1970
    ...and somewhat in conflict (see People v. Clark, 62 Cal.2d 870, 881, 44 Cal.Rptr. 784, 402 P.2d 856; but cf. People v. Coleman, 100 Cal.App.2d 797, 803, 224 P.2d 837; People v. Crane, 34 Cal.App. 760, 762--765, 168 P. Whatever may be the appropriate rule generally, the case at bench presents ......
  • Request a trial to view additional results

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