People v. Gallagher

• Decision Date: 25 January 1960
• Docket Number: Cr. 6738
• Citation: 177 Cal.App.2d 427,2 Cal.Rptr. 262
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of State of California, Plaintiff and Respondent, v. Robert GALLAGHER, Diane Kruger, Walter Vance Jolly and Phinas Eugene Green, Defendants, Robert Gallagher, Appellant.

Page 262

2 Cal.Rptr. 262

177 Cal.App.2d 427

PEOPLE of State of California, Plaintiff and Respondent, v. Robert GALLAGHER, Diane Kruger, Walter Vance Jolly and Phinas Eugene Green, Defendants Robert Gallagher, Appellant.

Cr. 6738.

District Court of Appeal, Second District, Division 3 California.

Jan. 25, 1960.

Robert Gallagher, in pro. per.

No appearance for respondent.

SHINN, Presiding Justice.

Robert Gallagher, Diane Kruger, Walter Vance Jolly and Phinas Eugene Green were jointly charged with unlawful possession of heroin. Diane Kruger and Jolly pleaded guilty. Gallagher, who was represented by counsel, was convicted in a non-jury trial. He made a motion for new trial which was denied, probation was denied and he was sentenced to state prison. He gave notice of appeal in propria persona from the judgment and sentence which we construe to be a single appeal from the judgment.

Upon defendant's request for appointment of counsel, the matter was referred to the Los Angeles Bar Association Committee on Criminal Appeals; a report was filed stating that after an examination of the record no meritorious ground of appeal was found. From our examination of the record it appeared that no benefit would result to the defendant or the court from the appointment of counsel; the request was denied and defendant was duly notified and given time to file a brief; no brief has been filed.

There was evidence of the following facts. Mrs. Kruger was living at 8146 Cheyenne Street in Downey with her mother and small son. Police officers of Downey received information that narcotics were being sold on the premises. They went to a house next door, from which they observed the Kruger house. Several days before the arrests they heard a female voice and a male voice in conversation. They heard the woman ask if 'the stuff he was brining was good or if he had been cutting it; she had bought two caps and it wasn't very good.' The man said he 'was not cutting it.' On September 12th, three days before the arrests, a black Chevrolet drove into the alley; Mrs. Kruger went to the car, exchanged something with the occupant of the car, who then drove away. On the same day Officer Harrington heard Gallagher talking on the telephone; he said 'where?' and then 'I'll meet you at the big market at Paramount and Imperial.' Gallagher then left in a green Buick and returned a few minutes later. On the same day Gallagher got another phone call which he answered and said 'how many?' and then 'two caps. No, not there, we'll meet you at the little store on Gardendale.' Soon afterwards, he left, walking toward the store, which was two blocks away. On September 15th, the officer had seen Jolly and Green enter the house from a white Mercury which belonged to Green's wife. The arrests were made immediately thereafter.

Officer Siple testified that on September 13th he heard a telephone being dialed and a male voice identified as that of Gallagher saying 'this is Bobby' and 'want a score this afternoon' and then 'Diane and I are going out this evening. If he wants a score it will have to be before six' and then 'we are going to the hock shop on Central Avenue to get my suit back.' On another occasion he heard Gallagher, apparently speaking over the phone, say 'how much?', then 'where?' and 'when?', after which he left in the 1953 Buick. On another occasion the same voice said 'that is too far. Make it the small grocery store at Gardendale' and shortly afterwards he heard the word 'dime' and the names 'Larry and Lucky', also 'two caps at the little store', after which Gallagher left.

Both Officer Harrington and Officer Siple talked with Gallagher later and identified his voice as that of the person whose voice they had heard on the telephone.

Officers Martin, Ferguson and Siple sought entrance to the house, asked Gallagher for Mrs. Kruger and were permitted to enter. Hearing that a toilet was being flushed they placed all persons in the room under arrest. These were Mrs. Kruger, Jolly, Green, Gallagher and a real estate agent who was evidently an innocent bystander. The bathroom door was locked; the officers broke it open; Jolly and Green dived out of a window; the premises were searched; 49 capsules and 3 and 1/2 grams of heroin and a hypodermic kit were found. The capsules included one package which was given them by Mrs. Kruger's smell son who found it outside a window. The box containing heroin was taken from the top of a dresser; when Gallagher was questioned he said he was using the dresser. Another box was taken from a top drawer of the dresser. Jolly and Green were arrested as they were running away. Jolly spit out a package containing heroin; another package was found on the ground about 3 feet behind Green. All the defendants testified. Green denied having any of the heroin. Jolly admitted having $300 worth in his possession of which he intended to purchase half and expected Mrs. Kruger to purchase half. Mrs. Kruger testified that all the heroin except that possessed by Jolly belonged to her; she...