People v. Loeper, Cr. 1193

• Decision Date: 08 January 1959
• Docket Number: Cr. 1193
• Citation: 334 P.2d 93,167 Cal.App.2d 29
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Shelby LOEPER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 93

334 P.2d 93

167 Cal.App.2d 29

PEOPLE of the State of California, Plaintiff and Respondent, v. Shelby LOEPER, Defendant and Appellant.

Cr. 1193.

District Court of Appeal, Fourth District, California.

Jan. 8, 1959.

Robert P. Lawton, La Habra, for appellant.

Edmund G. Brown, Atty. Gen., Arthur C. deGoede, Deputy Atty. Gen., for respondent.

GRIFFIN, Presiding Justice.

Defendant-appellant Loeper, together with one Vincent Quintero, were charged in an amended grand jury indictment that on December 9, 1957, they did feloniously sell a narcotic (marijuana) in violation of Health and Safety Code section 11500. Appellant was charged with two prior convictions of felonies (burglary and escape from state prison). He pleaded not guilty to the charge and later admitted the prior convictions. A motion for a separate trial was denied. The jury returned a verdict of guilty as to Loeper and not guilty as to Quintero. Appellant's motion for a new trial was denied.

The questions raised on this appeal are (1) whether it was prejudicial error for the trial court to fail to give an instruction on its own motion, that knowledge of the narcotic character of the substance allegedly sold, was an essential ingredient of the offense charged; (2) was it prejudicial error to instruct the jury on the subject of confessions? and (3) was it prejudicial error to admit into evidence offenses pertaining to defendant Quintero other than the offense charged?

A special deputy sheriff, without pay (Hobbs, otherwise regularly employed as a machinist), acted as an undercover investigator. He met appellant's codefendant Quintero at a parking lot in La Habra on December 8, 1957, about 6 p. m. There, other persons were present, including appellant Loeper. Quintero asked Hobbs if he wanted to buy a 'pound' or a 'tin'. (A tin is equivalent to one tobacco can full of marijuana.) Hobbs agreed to buy a 'tin' for $15, but wanted to see 'Dick' (a fictitious person) to see if he would want to buy one. Quintero inquired when he would return and Hobbs replied 'about midnight'. Quintero and Hobbs then returned to the lot, and at Hobbs' suggestion they went to see 'Dick' to show it to him. Both left in separate cars and parked in front of a bar. There they walked over to a black Buick car where appellant Loeper was seated. Quintero tapped on the windshield and appellant rolled down the window. Quintero told appellant 'This is the guy', and appellant then asked Hobbs if he would buy a tin and he said he would if Dick liked it but he wanted Dick to see it over in Carbon Canyon, about six miles away. Appellant said he would have to go down by the tracks to get it. Appellant walked down the tracks and returned in about five minutes, got in appellant's car, and Quintero drove his own car to the spot. En route, appellant stated to Hobbs that he was going to quit 'pushing weed' (marijuana), and start 'pushing hard stuff' (heroin). They parked in a lot by a cafe and Quintero parked nearby. Hobbs told appellant he would pay for and take one 'tin' but he would have to show it to Dick and then return in about 20 minutes. Appellant Loeper held out three brown sacks and told Hobbs to take his pick. He said a 'lid' (tin) would cost $12.50. Hobbs took one bag and paid appellant $12,50. Hobbs then walked to his residence, telephoned the sheriff, and related the facts. About 20 minutes later Hobbs returned to the car and appellant and Quintero were seated in it. Hobbs told them that the marijuana was pretty 'stemmy' and it was a 'short tin' but they would take it anyway. He said Dick wanted a pound and wanted to know what that amount would cost. Appellant replied he would have to see another fellow about that much. Quintero was to let Hobbs know. Defendants left and their arrest followed. The lot Hobbs bought proved to be marijuana.

Appellant testified he was there at the parking lot on December 8th at the time but did not talk to Hobbs; that Hobbs and Quintero did have a conversation which he did not hear; that when Hobbs left Quintero did come over to him and said Hobbs wanted to buy some narcotics but appellant did not offer to obtain it for him; that he was asleep in his car in front of the bar when Quintero awakened him by tapping on the windshield; that Hobbs was there; that he and Hobbs drove to the canyon to see Dick; that Hobbs then left for a few minutes, returned and talked to Quintero, as though he 'was mad about something' and they drove away. He denied ever selling any marijuana to Hobbs and claimed he did not walk down the tracks to obtain marijuana as indicated by Hobbs.

The attorney general concedes that section 11500 of the Health and Safety Code requires a knowledge of the narcotic character of the substance in question. The jury was instructed that 'To constitute criminal intent it is not necessary that there should exist an intent to violate the law or to do a wrong. Criminal intent exists whenever a person intentionally does that which the law declares to be a crime, even though he may now know that he is committing a crime or that his act is wrong'. It is claimed that this general instruction is proper in alleging crimes where specific intent follows the unlawful act but not in charged narcotic offenses. However, this instruction was followed by another which read in part: 'An essential element of the crime of which the defendant is accused is intent. * * * The intent to do the forbidden thing constitutes the criminal intent. The law requires that to be guilty of crime, one must intend the conduct that fits the description of the crime and must engage in that conduct knowingly and wilfully.' (Italics ours.) The offense charged here was that defendant did wilfully, unlawfully and feloniously sell narcotic, to wit, marijuana. In People v. Odom, 19 Cal.App.2d 641, 646, 66 P.2d 206, 209, it was said: 'An information which charges that a person 'willfully and unlawfully' performed an act is equivalent to alleging that he knowingly did so, and thus supplies the element of knowledge of the unlawful act where that element is necessary to be alleged in the pleading', and 'To do a thing willfully is to do it knowingly.' Citing People v. Swiggy, 69 Cal.App.2d 574, 581, 232 P. 174; Words & Phrases [2d Ser.] p. 1304; and Penal Code, sec. 7, subdivisions 1 and 5. See also 23 Words and Phrases, Knowingly, p. 572. From the instruction given, it clearly appears that before the jury would be authorized to find defendant guilty of the charge, he must have knowledge that it was a narcotic. The appellant's defense was not that his innocence was predicated upon lack of knowledge that it was a narcotic, but he claimed he made no sale to Hobbs under any circumstances. No instruction on this subject was proffered by appellant, as was done in People v. Winston, 46 Cal.2d 151, 193 P.2d 40, relied upon by appellant. Even though such an instruction was not offered, it was argued that it was the duty of the court, on its own motion, to give such an instruction. Appellant relies upon People v. Putnam, 20 Cal.2d 885, 890, 129 P.2d 367, involving sex offenses under Penal Code section 288. In such cases it was...