People v. Hutcherson
| Decision Date | 11 December 1961 |
| Docket Number | Cr. 7849 |
| Citation | 17 Cal.Rptr. 636,197 Cal.App.2d 771 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Eli Herman HUTCHERSON, Defendant and Appellant. |
Eli Herman Hutcherson, appellant, in pro. per.
Stanley Mosk, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for respondent.
In one count of an information Frank Harvey Beatty, John Alfred Jacobs and the appellant Hutcherson were accused of selling, furnishing and giving away marijuana in violation of section 11531 of the Health and Safety Code. In another count, the appellant alone was charged with a violation of that code section. The defendants Beatty and Jacobs pleaded guilty to the offense of possession of marijuana (Health & Saf.Code, § 11530), as a lesser but necessarily included offense in that charged in the first count. In a jury trial, the appellant Hutcherson was found to be guilty as charged in each count. The sentence was that he be imprisoned in the state prison for the term prescribed by law. He has appealed from the judgment.
The offense alleged in the first count was stated to have occurred on or about March 15, 1960, that in the second count to have taken place on or about March 23, 1960. A resume of the evidence will be given.
Justin B. Burley, a deputy sheriff for the county of Los Angeles assigned to the narcotics detail, testified that he saw the appellant on March 15, 1960, at about 6 or 6:30 p. m. on North Fair Oaks in Pasadena. With the witness were his partner, Deputy Smith, and a man known as Bennie Williams. The officers were not in uniform. They were seated in a Thunderbird automobile owned by Deputy Smith. Williams 'contacted' the appellant and shortly thereafter the two men came over to the officers' vehicle. The appellant was asked if he had some marijuana. He replied that he could get them some 'joints.' 1 The appellant said he would like them to follow him to another place. He then entered his automobile, in which Beatty and Jacobs were seated, and drove to a house 'appproximately seven to ten blocks away from this original location.' The appellant got out of his car and went to the officers' vehicle. He then said that Beatty and Jacobs were going to get the marijuana and it would take about 15 to 20 minutes. Later Beatty and Jacobs came back to the vicinity. Williams was given $5.00 of 'Pasadena advance funds.' He left the officers' automobile and went to where Beatty was. The witness Burley saw a package pass from Beatty to Williams; this package then 'came' to the witness. It contained marijuana cigarettes.
On March 23, 1960, the witness Burley saw the appellant again 'around 6:00 or 7:00 p. m.' on North Fair Oaks. Williams and Deputy Smith were with the witness. The appellant was driving his automobile and the officers stopped him. They had previously told him that they would be back and would like to purchase some more marijuana. The appellant said he would try to get them a pound of marijuna. The appellant then entered their automobile and the car was driven to Altadena. The appellant left the car and later returned, saying that his 'connection' did not have anything at that time. He then said that he might be able to get them some 'joints' and he directed the officers to another place. There he left the vehicle, entered a house, and later returned with four marijuana cigarettes. He handed them to Deputy Smith who then gave him $2.00.
On cross-examination, Mr. Burley stated that Bennie Williams was an informant for the Pasadena Police Department. The officer went to the place where he met the appellant because Williams said that people who dealt in narcotics frequented that location. The witness did not know where Williams could be found at the time of the trial. He last saw him 'the last part of 1960' in the courtroom. When Officer Burley was asked as to whether the $5.00 (which he had given Williams on the first occasion) had passed to Beatty and Jacobs, the officer testified as follows:
It was stipulated that it would be deemed that a qualified forensic chemist had testified that in his opinion the substance in the various cigarettes was marijuana.
Officer James G. Rowden of the Pasadena Police Department testified that the appellant made certain statements to him freely and voluntarily. The conversation occurred on April 2, 1960. As to the incident of March 15, 1960, the appellant said that he had received no money and had not actually handled the narcotics. With respect to the occurrence on March 23, 1960, he said that when Deputy Smith gave him $2.00 he refused the money, stating that he did not want it. The officer further testified that the appellant 'indicated * * * that Bennie [Williams] had more or less got him into this situation.'
Deputy Sheriff Dorothy A. Smith's testimony as to the two occurrences was substantially the same as that of the witness Burley. As to the transaction of March 23, 1960, she stated that when the appellant said he did 'not want to take money for it,' she took one dollar back; the other dollar 'was for his trouble.' At the time of her testimony at the trial, the witness did not know where Williams was.
The prosecution called as a witness Frank Harvey Beatty, who had theretofore entered a plea of guilty to possession of marijuana as has been noted. He testified that on March 15, 1960, he and Jacobs were standing in front of a 'hot dog' stand on Fair Oaks when the appellant and Williams approached them and asked him if he would like to sell fourteen of the marijuana cigarettes which he had. He said he would not, but finally he agreed to let them have the cigarettes 'which he was supposed to repay me on the following Saturday.' They went to Beatty's house where he rolled the cigarettes and then gave them to somebody inside of Deputy Smith's car. At that time no one gave him any money for the cigarettes. He had not known Williams before that day but had known the appellant; they had been friends. On cross-examination, Beatty testified that later on when he and the appellant got back into the latter's automobile, the appellant gave him money. He further said that at the 'hot dog' stand, the appellant rather than Williams carried on the conversation. He had not been sentenced pursuant to his plea of guilty and hoped that his testimony against the appellant would help him in that matter.
John Alfred Jacobs was also called as a witness for the prosecution. His testimony was substantially the same as that of Beatty except that he did not testify to a transfer of the cigarettes to someone inside the officers' car or to the passage of money. He said that Beatty walked to the officers' car and at that time Williams was standing outside the vehicle.
George W. Ferguson, an investigator for the district attorney, testified as to his efforts to serve a subpoena on Bennie Williams. He spoke to all the investigating officers, both in the Pasadena Police Department and in the Sheriff's Department. He further testified: 2 The witness asked the Chief of Police at San Bernardino to make inquiry of Williams' father; the report received was that the father had not seen or heard from his son for some time. Information was sought in jail and hospital records as well as in those of agencies concerned with law enforcement. The witness' search was concluded on the morning of the day on which he testified. He personally spent in excess of 60 hours in the investigation in addition to the time given by others in his department and the Sheriff's office, and the Pasadena and San Bernardino Police Departments.
The appellant took the witness stand in his own defense. He testified as to his background, his prior narcotic addition, and his relationship with Bennie Williams. He saw Williams on March 15, 1960. Jacobs and Beatty came with him to the location on North Fair Oaks. Williams approached the appellant and said that some friends of his had come from Bakersfield. He wanted to sell them marijuana to obtain money for his heroin habit but did not want his friends to know that he was the seller. The appellant 'more or less reluctantly agreed to do this.' They went to the vicinity of Beatty's house and Beatty and Jacobs left the appellant's car. Later Beatty and Jacobs returned and stopped a few feet away from the officers' car. Williams got out of that car and met Beatty and Jacobs; they had a discussion. The appellant saw nothing 'change hands'; it was 'pitch black dark.' No one gave the appellant any money or marijuana. The appellant returned to his car and left with Beatty and Jacobs. As to this incident, the appellant further testified that in his first conversation with Williams, the latter showed him 'some loose homemade cigarettes'; the appellant did not know whether the cigarettes contained marijuana and it was his understanding that if he joined in Williams' plan, the cigarettes would come from Williams. He did not know whether the cigarettes later transferred were those of Beatty or of Williams; they were not the appellant's cigarettes. But he did not 'see anything pass,' money or packages.
On March 23, 1960, the appellant saw the officers and Williams between 7 and 8 p. m., or a little later. While ...
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