People v. Head

• Citation: 108 Cal.App.2d 734,239 P.2d 506
• Decision Date: 16 January 1952
• Docket Number: Cr. 763
• Court: California Court of Appeals
• Parties: PEOPLE v. HEAD et al.

Page 506

239 P.2d 506

108 Cal.App.2d 734

PEOPLE v. HEAD et al.

Cr. 763.

District Court of Appeal, Fourth District, California.

Jan. 16, 1952.

Riley & Ferguson, San Diego, for appellants.

Edmund G. Brown, Atty. Gen., Flizabeth Miller, Deputy Atty. Gen., for respondent.

GRIFFIN, Justice.

Appellants John N. Purvis, Jerry K. Golightly, and James Russell Grimes were charged jointly with defendants Eugene J. Head and Robert L. McCabe with the crime of feloniously possessing a narcotic, to wit, marijuana. Their ages ranged from 18 to 21 years. A jury trial resulted in a conviction of all five defendants. Appellants appealed.

About 9:30 p. m. on April 9, 1951, three police officers were touring Golden Hill Park in San Diego in their police car. As they drove around a turn in the road, the lights of their car shone upon a two-door Plymouth sedan parked as though it had backed into a large bush. At that time the officers saw defendant Head standing on the left of that car near the driver's side and behind the open door. He was looking at the police car. He then turned, moved quickly toward the rear of the car and the officer saw his hand raise and lower again. Head returned to the front of the car and sat in the driver's seat.

The officers asked defendants who they were and what they were doing there. They replied they were just seated there talking. They were asked if they had been drinking and they said 'No'. It had been drizzling that evening and the ground was damp. A search was there made and a dry package of cigarette papers was found on the ground about three feet to the rear of the opening of the left-hand door of the car. Defendants were searched and no narcotics were found on them. Three dry cigarettes, containing marijuana, were found on the ground about six yards from the right rear wheel. Others were found on the left side. In the area back of the car 52 such cigarettes were found on the ground, which trail led to a Velvet Pipe Company tobacco can containing 14 such cigarettes. The car was searched and on the floor of the rear seat was found a newspaper which had one such cigarette in it. A newspaper was discovered near the left rear wheel of the car and under it was found 25 or 50 burned paper matches. The defendants were arrested. Their car was towed to a lot and later there was found marijuana seeds on the floor of the back seat compartment, under the seat cushions, and on the floor of the front seat compartment. Defendants denied any knowledge of possession of marijuana. When asked what it was they were throwing from the car, one defendant stated it was a bottle of whiskey. He also stated they had had one or two drinks. The officer testified he smelled no odor of liquor on their breaths.

Counsel for appellants concede the sufficiency of the evidence to support the verdicts but assign as prejudicial misconduct statements of the prosecuting attorney which he made in his argument to the jury. Excerpts therefrom show that he said: 'Ladies and gentlemen * * * You will recall at the outset on voir dire I asked each one of you specifically whether or not if you believed the evidence showed it beyond a reasonable doubt you would find one or more of the defendants guilty. You said that you would. * * * I believe that the evidence now shows that all of these defendants are guilty.'

Thereafter, the prosecutor summarized the evidence and counsel for defendants replied. In his closing argument the prosecutor stated:

'I believe, ladies and gentlemen, that if you convict one person you must necessarily convict all of them, so I am going to start out my rebuttal * * * by telling you why I think the evidence proves beyond all reasonable doubt that the defendant Head is guilty * * *.' The evidence was summarized as it applied to the defendant Head and the deputy district attorney stated: '* * * If Head threw away narcotics then their whole story is all blasted open. They are all guilty.' Then follows the portion of the argument about which appellants complain:

'* * * Mr. Riley states to you that I will probably tell you that they were making marijuana cigarettes out there. I don't know what they were doing out there because I was not there, and I can only piece the evidence together as you can, but I am positive that they all went out there for the one single purpose that had something to do with marijuana, and that the defendant Head threw that marijuana, and as Mr. Riley says, maybe they were making marijuana cigarettes, I don't know. * * * I think, ladies and gentlemen, that the evidence proves that all of these five defendants were mixed up in that marijuana, and I think the evidence proves beyond a reasonable doubt that they are all guilty * * *.

'Ladies and gentlemen, it is very necessary for you to return a proper verdict in this case. It is necessary for you to return a verdict for these five boys as much as it is for anybody else, and I might say right now that I, as district attorney or deputy district attorney, represent all of the people, including these five defendants; that I hold no animosity whatsoever against these five defendants, and my pay will go on whether there is a conviction here today or not. I had never seen them before--before I walked into this court room, and I imagine many of you saw them before I did. But I think it is very necessary for you to return a proper verdict. It is necessary, ladies and gentlemen, for you to put up a stop light for all the teenagers. If you don't return a proper verdict, ladies and gentlemen, you are giving a green light.

'* * * I can't ask you to bring in a verdict of guilty on one and not guilty on the others. If you find that one of them was not guilty, then bring in a verdict of not guilty on all of them. But I feel certain, ladies and gentlemen, that they are all...