People v. Foster, Cr. 2860

• Decision Date: 10 February 1953
• Docket Number: Cr. 2860
• Citation: 115 Cal.App.2d 866,253 P.2d 50
• Parties: PEOPLE v. FOSTER et al.
• Court: California Court of Appeals Court of Appeals

Page 50

253 P.2d 50

115 Cal.App.2d 866

PEOPLE v. FOSTER et al.

Cr. 2860.

District Court of Appeal, First District, Division 2, California.

Feb. 10, 1953.

Rehearing Denied Feb. 25, 1953.

Hearing Denied March 9, 1953.

C. L. Shinn, San Francisco, for appellants.

Edmund G. Brown, Atty. Gen. of California, Clarence A. Linn, Asst. Atty. Gen., and Wallace G. Colthurst, Deputy Atty. Gen., for respondent.

DOOLING, Justice.

Two defendants, Foster and Phillips, appeal from a conviction of possession of narcotics, sec. 11500, Health and Safety Code, and from the order denying their motions for new trial. Three defendants were tried jointly, the jury returned verdicts of guilty against all three but the trial court granted the motion for new trial of the third defendant, Dabney.

On December 22, 1951 two police officers of the City and County of San Francisco at about 1 o'clock a. m. observed a La Salle automobile in which the three defendants were riding and followed it because of a suspicion that it had been used in the commission of thefts from other automobiles. They flashed the red light on their patrol car and sounded the siren thereby causing Dabney, who was driving the La Salle, to bring it to a stop. As one of the officers was alighting from the patrol car he saw a small object come from the right front window of the La Salle and fall to the street. This proved to be a narcotic user's outfit, consisting of an eye-dropper fitted with a hypodermic needle, and 1 1/2 grains of heroin, wrapped in a small piece of paper held in place by a rubber band. Upon questioning all three defendants denied any knowledge of the package and its contents.

All three defendants were riding in the front seat; Dabney driving the car, Foster in the middle and Phillips on the right side. The officers saw all three defendants moving about in the car but did not see any of the three make any throwing motion. All three both before trial and on the witness stand denied any knowledge of the packet containing heroin and each denied that he had thrown it from the car or seen anything thrown from the car by either of the others.

In this state of the record it is perfectly clear that one, if not more, of the defendants was guilty of the possession of the heroin, the problem presented by the record being whether the state proved facts sufficient to justify the jury's finding that either Foster or Phillips was the guilty person or, as it actually found, that both were guilty.

Mere presence at the scene of the crime standing alone is not sufficient to justify a finding of guilt. People v. Le Grant, 76 Cal.App.2d 148, 153, 172 P.2d 554. The crime of possession of narcotics requires a physical or constructive possession with actual knowledge of the presence of the narcotic substance. People v. Gory, 28 Cal.2d 450, 170 P.2d 433.

To show such knowing possession the conduct of the parties, admissions or contradictory statements and explanations are frequently sufficient. People v. Gory, supra, 28 Cal.2d at page 456, 170 P.2d 433; People v. Bigelow, 104 Cal.App.2d 380, 231 P.2d 881; People v. Rumley, 100 Cal.App.2d 6, 222 P.2d 913; People v. Torres, 98 Cal.App.2d 189, 219 P.2d 480; People v. Sinclair, 129 Cal.App. 320, 19 P.2d 23.

Against Phillips the People argue that sitting where he was he must have seen the object thrown from the...