People v. MacArthur

• Decision Date: 17 May 1954
• Docket Number: Cr. 2980
• Parties: PEOPLE v. MacARTHUR.
• Court: California Court of Appeals Court of Appeals

Page 37

270 P.2d 37

125 Cal.App.2d 212

PEOPLE v. MacARTHUR.

Cr. 2980.

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

May 17, 1954.

Hearing Denied June 16, 1954.

Benjamin F. Marlowe, Oakland, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., J. F. Coakley, Dist. Atty., Robert H. McCreary, Asst. Dist. Atty., Oakland, for respondent.

KAUFMAN, Justice.

Appellant, Roy E. MacArthur, appeals from a judgment of conviction after jury trial. The information charged him with five violations of Sec. 11500 of the Health and Safety Code, each of the first four consisting of the sale of a narcotic [heroin] two on March 31, 1953, one on April 11 and one on April 22, 1953. The fifth count was for furnishing a narcotic [heroin] on April 11, 1953. A verdict of guilty was returned on all five counts. Motion for new trial was denied and defendant was sentenced to the State Penitentiary on each count, the sentences to run concurrently.

The Bureau of Narcotic Enforcement of the State of California had on March 24, 1953, in its office in the State Building, San Francisco, received information from a narcotic peddler by the name of Jimmy Lee, that appellant MacArthur was his chief source of supply. On that same date at approximately eight o'clock in the evening the informer introduced Inspector Chasten to appellant, the inspector using the alias of 'Tony'. Appellant stated that he wanted to sell a pound of heroin for $8,000, that he was leaving for the Orient on about April 1st and would return about April 11th with the heroin. Appellant was a pilot for Transocean Airlines and had been making both passenger and cargo flights to Tokyo, Japan, since October 1952.

On March 30, 1953, appellant informed Inspector Chasten as to the procedure that would be used in making their deals. They would both go to a certain hotel and each get a room, and then follow a certain method as to the exchange. Chasten testified that appellant told him that he had been bringing in heroin for a year and a half and had an excellent method of concealing it in a plane, that he considered his chances of getting caught about 1000 to 1. MacArthur said that he would telephone the inspector when he returned from his trip.

On March 31, 1953, the informer, Lee, introduced Inspector Mantler of the State Bureau of Narcotics to appellant under the psuedonym of 'Jimmy Allen'. Appellant gave Mantler 245 grains of heroin for the sum of $250 in cash in State funds which he received from Mantler. The foregoing transaction is the basis of count one of the information.

The second count for sale of a narcotic resulted from another transaction on the same date when Mantler and MacArthur met again that evening. Appellant said he did not like small deals, that he could go to jail for $250, $2500 or $5000. He told Mantler that he was a pilot, that he flew to Tokyo himself, that 'You are dealing right at the top.' Appellant said he was going on a 'try' the next day and would be back in eight or ten days. The second sale of 200 grains of heroin was made for $250.

Between April 1 and 10, 1953, appellant flew to Tokyo from Travis Air Base and returned.

On April 11, 1953, appellant sold Mantler 190 grains of heroin for $250 which constituted the third count of the information. As in the earlier transactions, State funds were used and the serial numbers recorded. Upon his arrest some days later two of the fifty dollar bills used in this transaction were found in his wallet. Appellant said he would like Mantler to take more heroin, that he had 3 ounces which he would sell for $1500. Mantler said he would call him at the end of the week.

On April 11, 1953, Inspector Chasten, using the name of Tony telephoned MacArthur, who said that he was just about to call him. They arranged to meet in about one hour at the bar of a certain hotel in Oakland. After they were seated at a table in the bar appellant said he had not been able to procure the pound of heroin because the plane lay over in Japan wasn't long enough for him to make the necessary negotiations for that amount, since the Chinese with whom he dealt would have to travel to Osaka by train to secure it. In order to show that he was able to get good pure heroin he would get him a sample. He left and returned shortly whereupon he and the inspector went to a hotel room where he gave Chasten a small sample from a large package. The sample contained about 2 grains of heroin. [The fifth count, furnishing a narcotic]. Chasten showed him the $8,000 which he had available for a larger purchase, and defendant said he was satisfied.

Appellant and Inspector Chasten met again at the same hotel in Oakland on April 14, 1953. Chasten told appellant that he was worried because some prominent persons had been arrested in San Francisco, and that he had heard that a pilot had been offering heroin for sale in San Francisco, and that there might be a connection. The appellant said that there was no cause for worry, since he was dealing only with Bill, a bartender, and a fellow named Jimmy, and that he had full control of the course in Japan. He said he could send another person to pick up the heroin through the use of a password. He had to eliminate one fellow who had not handled the heroin properly, and Bill and Jimmy were also to be eliminated in the future. Appellant said he would then deal only with Chasten. They had a conversation as to working up a partnership, selling 4 pounds per month and splitting the profits. Appellant thought that the pound of heroin he had not been able to get in Japan might come in on another plane in two or three days, and that it was simple for him to get the heroin off the plane at Travis Air Base because his uniform and credentials permitted him to enter and leave at will.

On April 20, 1953, defendant telephoned Chasten at 2:00 p. m. Chasten arranged to meet him at the same hotel in Oakland. Appellant informed Chasten that the pound of heroin had not come in on the other plane, but that he had received one and one-half ounces. He wanted Chasten to cut this to six ounces and sell it for $500 per ounce, returning the $3000 to appellant who would use it to finance their partnership and pay for the heroin in Japan. When they had arrived at the point where they were making $64,000 from four pounds of heroin per month, they could soon retire as wealthy men.

The following morning Chasten informed appellant by telephone that he had a buyer from Alaska who would take all he could get. Appellant said he had some that was good but not pure. Chasten said for him to get together what he could and he would call him the next morning.

On April 22, 1953, Chasten talked on the telephone with appellant and asked if he was ready. He said that he was and they agreed to meet at Andy's Drive-In at 19th and Harrison Streets, Oakland. Inspector Chasten parked his car in the Drive-In parking lot. Several law enforcement officers were waiting inside the Drive-In, and a photographer was following the movements with his camera from a building across the street. Chasten and appellant got into Chasten's car where appellant sold four packages of heroin containing 950 grains to Chasten and received $700 in state currency, the serial numbers of which had been previously listed. This incident furnished the basis of count four.

Appellant was then arrested and asked where he got the $700 which was found in his shirt pocket. He stated that he was a pilot, a working man, and that is where he got it. The inspector took appellant to his apartment in Oakland where Inspector Noel of the State Narcotics Bureau asked him if he had been bringing heroin in from Japan, and appellant admitted that he had been picking it up in Tokyo. He told Noel that he had become involved in the traffic through a Chinese girl whom he knew in Tokyo, that she had suggested it as a way of making a lot of money and that she had a friend who had heroin to sell. Later at Oakland City Hall in the prosecuting attorney's office Noel asked appellant in the presence of Chasten if he had peddled heroin to anybody else and he said 'No', but when Mantler walked in he said 'Well, you know all about him.'

Appellant at the trial denied that he had made the statements testified to by Mantler, Chasten and Noel. The defense was entrapment. Appellant admitted the five specific transactions involving narcotics but contended that the idea of selling narcotics had never occurred to him until he was induced to do so by Jimmy Lee, the informer in the case, that he first met Lee in January of 1953, and that later in March he induced him to deliver narcotics for him as he had contacts which he couldn't follow through, that he needed somebody to help him keep in the background. Thus the deals with the inspectors were arranged, and appellant asserted that these were the only narcotic transactions he had ever participated in. Appellant said that he had been averaging $600 per month as a pilot and an additional $125 per month working as bartender.

It is to be noted at the outset that appellant's opening brief containing four arguments for reversal, contains not one citation of an authority other than two sections from the Penal Code. This court could, if it wished, refuse to consider such a brief. See, People v. Gidney, 10 Cal.2d 138, 73 P.2d 1186; People v. Jenkins, 118 Cal.App. 115, 4 P.2d 799; People v. Titus, 85 Cal.App. 413, 418, 259 P. 465. However, we will review the contentions urged.

It is first contended that appellant was not accorded an impartial trial because perjury was committed by Inspector Noel of the State Narcotics Bureau in order to negate the offense of entrapment. On cross-examination Noel testified that he had received information from a United States Customs Officer by the name of McSheehy; that Customs believed they had located the source of MacArthur's supply; and that they had...