People v. Jablon, Cr. 6364

• Decision Date: 19 November 1958
• Docket Number: Cr. 6364
• Citation: 165 Cal.App.2d 348,331 P.2d 772
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of The State of California, Plaintiff and Respondent, v. William Irvin JABLON, Defendant and Appellant.

Page 772

331 P.2d 772

165 Cal.App.2d 348

The PEOPLE of The State of California, Plaintiff and Respondent, v. William Irvin JABLON, Defendant and Appellant.

Cr. 6364.

District Court of Appeal, Second District, Division 2, California.

Nov. 19, 1958.

Rehearing Denied Dec. 10, 1958.

John H. Marshall, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., of Los Angeles County, Jere J. Sullivan and Ralph F. Bagley, Deputies Dist. Atty., Los Angeles, for respondent.

FOX, Presiding Justice.

Defendant was charged with violating section 11500, Health and Safety Code, in three counts, in that on October 29th, 1956, he unlawfully had possession of (1) morphine, (2) codeine, and (3) isonipecaine, also known as demerol. He was convicted on all counts, ¹ and has appealed from the judgment and from the order denying his motion for a new trial.

Although defendant does not challenge the sufficiency of the evidence to support the findings of the trial court on the issues raised by his pleas of not guilty, it is necessary to recite some of the background in order to understand his argument with respect to certain other pleas that he later entered.

Robert J. Truitt, a special investigator for the Board of Medical Examiners, arrested defendant in the afternoon of October 29, 1956, at his apartment in Los Angeles by virtue of a warrant issued by the municipal court of Los Angeles on October 26, 1956, for the violation of (1) section 2141, Business and Professions Code, which makes it unlawful to practice medicine without a license, and (2) section 2142 of the same code, which declares it to be a criminal offense to hold one's self out as being a medical doctor without having a license. Truitt identified himself, informed defendant that he had a warrant for his arrest, and exhibited it to him. Officer Truitt was accompanied by two Los Angeles police officers. The officers asked defendant whether he had any narcotics or medical preparations on his premises. He replied, 'Yes, all over.' The officers proceeded to search defendant's apartment in his presence. They found the narcotics here involved during the course of this search. There is no question on this appeal as to the legality of either the arrest or the search. ²

When the case was called for trial on March 5, 1958, counsel for defendant entered two additional pleas for his client (1) once in jeopardy, and (2) former conviction. Counsel indicated he was attempting to plead a judgment of conviction of defendant in the Los Angeles municipal court on February 19, 1957. No evidence whatever of any such conviction or proceeding was presented.

The court found defendant guilty on each count and further found that 'the defendant has not been once in jeopardy and has not been previously convicted or acquitted' of any of the offenses charged.

It was defendant's responsibility to present evidence in support of his special pleas. People v. Newell, 192 Cal. 659, 665, 221 P. 622; In re Burns, 78 Cal.App.2d 294, 301, 177 P.2d 649. Having failed to produce such evidence it was incumbent on the court to find against defendant on his special defenses. People v. Newell, supra, 192 Cal. at page 668, 221 P. 622.

In his brief defendant tells us that on February 1, 1957, he was arrested again on the original warrant charging the two violations of the Business and Professions Code, arraigned on February 4, 1957, and submitted the matter on the arrest report April 23, 1957;...