People v. King, Cr. 6768

Citation175 Cal.App.2d 386,346 P.2d 235
Decision Date18 November 1959
Docket NumberCr. 6768
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Theodore P. KING, Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

Lenoir & Cunningham, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for respondent.

FOURT, Justice.

The appellant was charged in an information in Los Angeles County with having marijuana in his possession. In a non-jury trial the appellant was found guilty on March 25, 1959. On April 22, 1959, a motion for a new trial was denied. Proceedings were suspended and probation was granted for five years conditioned, among other things, upon his spending nine months in the county jail. The appellant filed a Notice of Appeal 'from the judgment--rendered on the 25th of March, 1959' and 'the denial of a motion for a new trial rendered on the 22nd day of April, 1959 and the sentence pronounced on the 22nd day of April, 1959.'

A resume of the facts is as follows: Ambrose P. Burke, Jr., a special agent for the Federal Bureau of Investigation, was working in the area of Adams and Normandy streets in Los Angeles on an investigation of the robbery of the Security-First National Bank at 48th and Western streets, Los Angeles, on July 17, 1958. The agent's information was to the effect that the robbery at the bank had been committed by two male Negroes, that one of the robbers had entered the bank and the other had operated a get-away car; that the get-away car was a two-tone green, that it was dark and dirty, that it rattled, had a lud muffler and that the driver supposedly was wearing a dark T-shirt and some sort of a white cap.

Burke first saw the appellant at about 1:00 or 1:15 o'clock p. m. in the 1600 block of Adams Street near Normandy, about two miles from the site of the robbery. Appellant was driving west on Adams in a 1951 Buick, two-toned, a lighter color over a drak green and, which, Burke said, 'pretty well fit the description of the car described as the get-away car of the bank robbers.' The car appellant was driving was also dirty, loud, and seemed to rattle. The appellant was the only person in the Buick car. Burke's partner, who was the driver of the Bureau car, pulled the appellant to the curb. The appellant got out of his car, went to the rear thereof where Burke talked to him about the bank robbery after displaying to appellant his identification card as a Federal Bureau of Investigation agent. After talking to the appellant about any possible knowledge of the bank robbery, they asked appellant what was in a box on the seat of the car. Appellant stated that there were clothes in it, that he was not sure what clothes they were, but that he was taking them back to the cleaners where he worked. Agent Burke testified, 'In view of the fact there was a bank robbery and the car looked good, we asked the defendant if he minded if we looked in the box, in view of the fact there could be clothes or money in the box. This happended in the past and it was a logical question to ask him.' The appellant stated that he had no objections to their looking into the box. There were three packages wrapped in brown paper, one of the packages was opened at one end and it appeared to contain a weed of some sort; there were seeds and leaves on it. Appellant said he did not know what it was. Another package was found under the driver's side of the front seat. The contents were later examined and found to contain nine and one half pounds of marijuana.

Appellant was wearing slacks and a sports shirt and he said that he worked at the Jackson Cleaners and that he had gone to lunch at a girl friend's house. He could not describe the person who had given him the box, nor was he sure of the exact location where he had received it. At one time he said it was at 25th and Central and at another time he said it was at 50th and Central. Appellant identified himself as Wilson Hewitt, and showed a driver's license for that name. Later while on the way to the police building, the appellant stated that his name was not Hewitt, that it was Theodore P. King and said, 'You will find out about it anyhow.'

The federal agents did not place the appellant under arrest. They did not have a search warrant, nor a warrant of arrest. The federal agents called for the local police and waited until they arrived and then turned the appellant over to them. The local police placed the appellant under arrest at the scene. While on the way to the police station appellant said he knew the package contained marijuana--that he was delivering it for another person for which he was to receive $10.

Appellant contends that Burke had no right to stop or arrest the appellant; that appellant was arrested by Burke and that he did not give consent to the search of his car, and that the search and seizure was illegal.

There was ample testimony which, if believed, established clearly that the appellant consented to the search of his car. Appellant,...

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