People v. Holland, Cr. 3371

Citation158 Cal.App.2d 583,322 P.2d 983
Decision Date21 March 1958
Docket NumberCr. 3371
CourtCalifornia Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Emmett HOLLAND, Defendant and Appellant.

John W. Bussey, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., John S. McInerny, Deputy Atty. Gen., for respondent.

DOOLING, Justice.

Appellant was charged in four counts with violations of the Health and Safety Code, all dealing with prohibited offenses in connection with narcotics. The jury failed to reach a verdict on Counts 1 and 2 and those counts have been dismissed. Appellant was found guilty on Count 3 (sale of heroin on August 23, 1956) and Count 4 (maintaining a place for sale etc. of narcotics, § 11557, Health & Safety Code).

The sales charged were testified to have been made to one Marge Hackney, a female narcotics addict. Since the charges on Counts 1 and 2 have been dismissed we shall detail only the evidence relating to Counts 3 and 4.

On August 23, 1956, Miss Hackney was thorougly searched by a policewoman about 12:30 p. m. She was given $20 in identified currency and was driven to the corner of Ellis and Hollis Streets in San Francisco by State narcotic agents. She was under constant observation from the time that she left the State automobile until she entered a barbecue stand operated by appellant at 1404 Fillmore Street. While Miss Hackney turned a corner in going to this stand, as soon as she left the sight of the officers who drove her to Ellis and Hollis Streets she came under the observation of other officers stationed on Fillmore Street. These latter officers saw her enter the barbecue stand where she talked to appellant. No other person was present in the stand at that time. During the conversation appellant was observed to stoop down behind the counter and rise again. The hands of Miss Hackney and appellant were not visible to the witnesses. Without approaching any other person Miss Hackney left the barbecue stand and returned to the automobile where she handed the agents a package containing heroin. A subsequent search by a policewoman disclosed that Miss Hackney no longer had the $20 which had been given to her.

Testimony was given of another transaction on the same date in which Miss Hackney met appellant and his wife on the street and returned to the officers with another package of heroin. No objection was made to the introduction of this evidence.

Similar testimony was introduced, over objection, that on August 27 and on September 5 Miss Hackney went to the barbecue stand with marked money and returned with heroin. On these occasions there were several people present with some of whom Miss Hackney was seen to converse. On neither occasion did not witnesses see the appellant.

Appellant's first contention is that there is a fatal variance between the indictment and the proof since the transcript of the testimony before the grand jury shows that the witnesses there referred to the informer-purchaser as a man while in the trial court they testified that the informer-purchaser was a woman. When this fact developed in the trial court appellant's attorney (not the counsel representing him on appeal) made no motion or objection on the ground of this variance, nor did he ask the trial court for a continuance nor suggest that he was prejudiced in any way. His present counsel argues prejudice in having to meet an unexpected charge but no such showing was made in the trial court and it is too late to advance this claim for the first time on appeal. A defendant waives his right to object to an alleged variance between pleading and proof by failing to raise the objection in the trial court. People v. Blankenship, 103 Cal.App.2d 60, 66, 228 P.2d 835; People v. Yachimowicz, 57 Cal.App.2d 375, 380, 134 P.2d 271; People v. Abila, 137 Cal.App. 26, 28-29, 29 P.2d 796.

We heartily disapprove of the conduct of these witnesses, but they testified that the informer whom they had spoken of in the masculine before the grand jury was in truth Marge Hackney and appellant's trial counsel chose to discredit them by emphasizing this discrepancy on cross-examination rather than to urge the variance as now is done by the present counsel on appeal. Appellant was fully advised that he was meeting the charge of making sales to Marge Hackney (no purchaser was named in the indictment and appellant concedes that on its face it sufficiently charged the offenses) and we cannot find that he suffered any prejudice in this regard. The proof offered shows sales to Marge Hackney and appellant is fully protected against further charges based on the same offenses. People v. Leiva, 134 Cal.App.2d 100, 103, 285 P.2d 46.

Appellant made no objection to the admission of evidence of the second sale on August 23. He is in no position to urge error in the admission of evidence to which he made no objection below. People v. Dessauer, 38 Cal.2d 547, 552, 241 P.2d 238. Nor when the prosecutor stated to the jury in his argument that the sale on August 23 at the barbecue stand was the offense charged in Court 3 and the later sale on that date was the subject of a separate indictment against appellant and his wife did he make any objection or motion. The matter is not of that character which a proper admonition from the trial court might not have cured and counsel's failure to object in the trial court precludes his now raising those questions on appeal. People v. Sutic, 41 Cal.2d 483, 496, 261 P.2d 241.

Appellant complains of the refusal of the trial court to allow him to try an experiment with a penny in a bag to test the powers of observation of a witness who had identified packages of heroin in court. The trial judge has a wide discretion in controlling experiments and we find no error in this action.

Appellant was permitted on cross-examination to develop that the witnesses in testifying before the grand jury knowingly described Marge Hackney by masculine pronouns and falsely testified that one of them searched 'his' person when they knew this was done by policewomen. They complain that the cross-examination was unduly restricted because of the sustaining of objections to questions characterizing this conduct as 'perjury' and by other epithets. Appellant's counsel was permitted to show the character of the testimony before the grand jury and its falsity in the particulars noted and we cannot find any prejudice in the rulings of the court in this connection on repetitious questions argumentative in form. People v. Apodaca, 132 Cal.App.2d 340, 282 P.2d 182.

We find no prejudicial error in the fact that the trial judge developed from one of the witnesses that it is the policy of the Bureau of Narcotics to keep secret the identity of informers if possible. The trial judge has a right to question witnesses to develop facts which he deems pertinent. People v. Boggess, 194 Cal. 212, 241, 228 P. 448; People v. Lopez, 124 Cal.App.2d 100, 102, 268 P.2d 171.

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28 cases
  • People v. West
    • United States
    • United States State Supreme Court (California)
    • 3 d4 Dezembro d4 1970
    ...of 'opening' or 'maintaining' such a place. (People v. Horn (1960) 187 Cal.App.2d 68, 72--73, 9 Cal.Rptr. 578; People v. Holland (1958) 158 Cal.App.2d 583, 588, 322 P.2d 983.) When a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charg......
  • People v. Campbell
    • United States
    • California Court of Appeals
    • 30 d2 Novembro d2 1982
    ...there must be some purpose of continuity in the use of the place for the proscribed illegal conduct." (People v. Holland (1958) 158 Cal.App.2d 583, 588, 322 P.2d 983; see also People v. Horn (1960) 187 Cal.App.2d 68, 72-73, 9 Cal.Rptr. 578.) Similarly, defendant's occupancy of the apartment......
  • Priest v. State
    • United States
    • United States State Supreme Court of Delaware
    • 5 d2 Julho d2 2005
    ...quantities of drugs within a building, without more, is insufficient to support a maintaining conviction); People v. Holland, 158 Cal.App.2d 583, 322 P.2d 983, 987 (1958) (holding that to constitute the offense of "open[ing] or maintain[ing] any place for the purpose of unlawfully selling, ......
  • People v. Fernandez
    • United States
    • California Court of Appeals
    • 10 d1 Agosto d1 1959
    ...could have been obtained. That is not true in our case. The situation in our case is more like the situations in People v. Holland, 1958, 158 Cal.App.2d 583, 322 P.2d 983; People v. Alvidrez, 1958, 158 Cal.App.2d 299, 322 P.2d 557, and People v. Hawkins, 1958, 164 Cal.App.2d 824, 331 P.2d 1......
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