People v. Johnson, Cr. 1047

• Decision Date: 02 March 1956
• Docket Number: Cr. 1047
• Citation: 294 P.2d 189,139 Cal.App.2d 663
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald LeRoy JOHNSON and Funzell Smith, Defendants and Appellants.

Page 189

294 P.2d 189

139 Cal.App.2d 663

The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald LeRoy JOHNSON and Funzell Smith, Defendants and Appellants.

Cr. 1047.

District Court of Appeal, Fourth District, California.

March 2, 1956.

Rehearing Denied March 15, 1956.

Hearing Denied March 28, 1956.

Edgar G. Langford, San Diego, J. Perry Langford, Los Angeles, and Adolph Zuber, San Diego, for appellants.

Edmund G. Brown, Atty. Gen., and William E. James, Deputy Atty. Gen., for respondent.

MUSSELL, Justice.

Defendants were charged with the crime of possession of a narcotic (Marijuana) in violation of section 11500 of the Health and Safety Code. Smith admitted two prior felony convictions charged and a jury trial was had which resulted in verdicts of guilty as to each defendant. Motions for a new trial were denied and defendants appeal from the judgments of conviction and from the order denying a new trial.

On May 3, 1955, at approximately 3:00 a. m., two police officers (Kennedy and Bills) noticed a Buick convertible being driven north on Pacific Highway in San Diego in an erratic manner. Officer Kennedy testified that the Buick 'appeared to be above the speed limit, following very closely another car on the highway. The Buick would approach the rear of the other car rapidly and then suddenly slam on the brakes as if he were suddenly aware of the car in front of him'; that this occurred several times and the Buick (being driven by defendant Johnson), as it proceeded north on Pacific Highway, was swerving from lane to lane 'at times swerving towards the center island, practically striking it.' Upon witnessing this erratic driving for about two blocks, the officers stopped the Buick and observed there were four people in it. Defendant Johnson was in the driver's seat, defendant Funzell Smith was seated directly behind him in the back seat, one Duran was in the front seat beside Johnson, and one Graham was in the rear seat next to Smith. Officer Kennedy testified that he asked defendant Johnson for his operator's license and that Johnson appeared to him to be 'under the influence of something. * * * His answers were somewhat slow, his speech a little slow, his eyes were dilated, and his eyelids were slightly droopy.' Johnson was then asked to step from the car and 'staggered, swerved a small amount.' A field sobriety test was administered to him but it was not completed because Officer Kennedy was of the opinion that Johnson had not had enough to drink to fail a sobriety test. Kennedy further testified, 'I felt it was something. I didn't know whether it was alcohol or what. I felt there was something affecting him; he was under the influence of something. However, not strongly enough to fail the 502 test'; that while he was talking to Johnson, Officer Bills remarked 'something was wrong here' or words to that effect. Officer Bills talked to Duran and Graham and while Duran was coherent and responsive to questions, Graham was barely able to stand without assistance and his speech was slurred and jumbled. Duran and Graham were told to sit in the police car.

Officer Bills went to Johnson's car, opened the righthand door and got in the front seat with Johnson. While interrogating him, Officer Bills shone his flashlight around the car, examined the glove compartment, and while shining the light upon the dashboard, found a cigarette rolled in brown paper in a plastic tray (this cigarette by chemical and microscopic analysis was later determined to be marijuana, of a type 'immature in growth'). Bills showed the brown cigarette to Johnson and he denied knowledge of how it got in the tray, denied ownership of it and denied having ever used marijuana. Smith and the other occupants of the car also denied ownership of the cigarette and stated they did not know how it got in in the car. The Buick was then impounded for delivery to the narcotic officers and the defendants were transported to jail where they were booked.

Johnson and Smith were examined by a physician at about 4:45 a. m. on May 3, 1955. The doctor observed that Johnson's behavior was '* * * rather peculiar in that he was drowsy and nodding and his eyes were droopy on the one hand and, on the other hand, a few minutes later he would perk up as if he weren't tired necessarily, a rather unusual state. I noticed his pupils were a little dilated, checked his pulse and respiration and found them normal. I noticed no marks on his arms and then I had him blow his breath in my face, as I do in these cases. I couldn't smell alcohol and I detected what to me was the odor of * * * breath of a marijuana smoker, like old burnt Manila rope, or the old fashioned Cubab cigarette odor'; that defendant Smith's behavior was essentially the same as that of Johnson except that Smith's pupils were normal in size, he was 'nodding, drowsy, apathetic, a very slight weave or ataxia, as I call it, drooping of his lids.' The doctor further testified that he felt both Johnson and Smith had been smoking marijuana cigarettes.

A microscopic examination was made of debris removed from the clothing worn by Johnson and Smith and from the...