People v. Gardner

• Decision Date: 08 January 1960
• Docket Number: Cr. 6337
• Citation: 177 Cal.App.2d 43,1 Cal.Rptr. 830
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. LeRoy Mandell GARDNER, Defendant and Appellant.

Page 830

1 Cal.Rptr. 830

177 Cal.App.2d 43

PEOPLE of the State of California, Plaintiff and Respondent, v. LeRoy Mandell GARDNER, Defendant and Appellant.

Cr. 6337.

District Court of Appeal, Second District, Division 1, California.

Jan. 8, 1960.

Hearing Denied March 1, 1960.

Samuel C. McMorris, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., S. Clark Moore, Deputy Atty. Gen., for respondent.

BISHOP, Justice pro tem.

The defendant, charged with having in his possession a preparation of heroin, was tried before the judge, sitting without a jury, and found guilty. On May 16, 1958, the defendant filed his notice of appeal 'from the order and judgment * * * made and entered on the 7th of May, 1958, denying defendant's Motion for New Trial and adjudging defendant guilty as charged, and sentencing defendant to the State Prison * * *.' This we interpret as an appeal: (1) from the action of the trial judge, taken of April 2, finding the defendant guilty as charged; (2) from the order denying his motion for a new trial; and (3) from the final judgment of conviction. The latter two did take place on May 7, and are made appealable by section 1237 of the Penal Code. The first, if appealable, was taken too late, as measured by the provisions of Rule 31, Rules on Appeal for the Supreme Court and District Courts of Appeal. It is not, however, appealable (Section 1237, Penal Code; People v. Pastrana, 1955, 136 Cal.App.2d 358, 359, 288 P.2d 568, 569) and so we are dismissing it, while affirming the other two matters appealed from.

The crucial question on this appeal arises with respect to the nondisclosure of the identity of an informer. There was some inconsistency between the testimony given by the officer-witness, Caskey, at the preliminary hearing, by stipulation deemed given at the trial, and that given by him at the trial. It was, of course, the function of the trial judge to select out of the testimony that which he believed to be true; it is not for us to say that any conflict should be resolved in defendant's favor.

We find that the trial judge was warranted, therefore, in concluding that Caskey and his partner had at least two informants who, over a period of three years or so, had given them informations proven to be reliable. He (the witness) was able to name but one of these informers. From them, the witness and his partner had learned that one Lummie, his wife and brother, were living at a house on 56th Street to which people went to use heroin. Occasionally the defendant, known to the police and the informers as 'Mouse' also went to Lummie's house. On the day of the arrest the officers were not looking for him, particularly.

The witness and his partner went to the house and walked up alongside of it. The witness heard running inside, and went to the rear door as his partner went to the front. Shortly, the defendant opened the back door and stepped out, holding in his hand a package the size of a fist. He took a step out of the door, turned and looked at the witness officer, then turned around and went back into the house, pursued by the officer, who, just a few feet inside the door, grabbed hold of the defendant. In the struggle that followed they reached the door of the living room, and the package that had been in the defendant's hand sailed through the air to the middle of the floor, whence it was retrieved by the partner of the witness. The package was found to contain several envelopes of a powder, which, according to the testimony of...