People v. MacCagnan, Cr. 5208

• Decision Date: 22 November 1954
• Docket Number: Cr. 5208
• Citation: 129 Cal.App.2d 100,276 P.2d 679
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Albert Robert MacCAGNAN, Defendant and Appellant.

Page 679

276 P.2d 679

129 Cal.App.2d 100

The PEOPLE of the State of California, Plaintiff and Respondent, v. Albert Robert MacCAGNAN, Defendant and Appellant.

Cr. 5208.

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

Nov. 22, 1954.

Rehearing Denied Dec. 2, 1954.

Hearing Denied Dec. 22, 1954.

Daniel G. Marshall, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., S. Ernest Roll, Dist. Atty., Jere J. Sullivan, Deputy Dist. Atty., Robert Wheeler, Deputy Dist. Atty., Los Angeles, for respondent.

MOORE, Presiding Justice.

Convicted of having had in his possession 'flowering tops and leaves of Indian Hemp,' familiarly called 'marijuana,' Health & Safety Code, § 11500, a narcotic defendant seeks a reversal on the grounds of (1) the insufficiency of the evidence to prove he had knowledge of his possession of the contraband; (2) errors in rejecting appellant's offered instructions on (a) knowledge, (b) giving other instructions, (c) accusatory statements; (3) error in receiving evidence of value of contraband; (4) error in the prosecutor's telling the jury defendant admitted his guilt; (5) error in proceeding on an indictment (No. 160110) charging same offense as that alleged in the information (No. 157170) which had been based upon the commitment by the municipal court and which information was still pending; (6) error in denying motion for new trial.

Before relaying the story of appellant's experiences and his clash with the law, it will serve to illuminate other references to report an antecedent proceeding wherein appellant was accused by complaint of the same offense charged in the instant indictment, was committed in June, 1953, and was accordingly charged by information and his bail fixed at $2,500. Trial on the information (No. 157170) began September 17, 1953. Thereupon, the Supreme Court issued its writ prohibiting the superior court from taking any further proceeding on the information until further orders; directed the superior court to complete its transcription of the preliminary examination or file a supplemental transcript containing all steps taken not contained in the transcript already on file. The trial was continued to January 18, 1954. The People filed in the Supreme Court a request and consent 'that they immediately issue herein a peremptory writ as prayed for without prejudice to proceeding by means of a new preliminary hearing or by indictment.' The superior court thereafter advanced, without notice to appellant, the trial date from January 18, 1954 to December 16, 1953, and on the latter date, without notice to appellant, dismissed the information in No. 157170 in the interest of justice. That left pending the indictment No. 160110 which had been presented November 10, 1953, after the superior court had consented to the issuance of the peremptory writ. The accused was allowed liberty on $1,500 bail and his arraignment set for November 25, 1953. His motion to quash the indictment under section 995 of the Penal Code was overruled. His trial resulted in his conviction, denial of motion for new trial; denial of bail and his filing notice of appeal which is here for review.

Facts Prove Knowledge

Officer Cowan accompanied by officer Samuelson arrested appellant in a drunken condition at 11:45 p.m. June 7, 1953 at a cafe in Long Beach. The transported him to the city jail and escorted him to the booking lobby. Appellant seated himself on a bench where Cowan observed him fumbling with his right sock. He told the jailers to look in the prisoner's hosiery. As he removed his right sock, pursuant to the jailer's instructions, officer Turley asked to see what the accused had. Not only did the latter refuse to display the object he held, but thrust his hands into his pockets and refused to withdrawn them. When officer Leslie attempted to take appellant's hands from his pockets, in the midst of the violent struggle of the jailers with the prisoner, officer Cowan reached through the slit in the coveralls and removed the red package of 'Pall Mall' from the crotch of the coveralls, marked the cigarettes therein for identification and deposited them in a safe. When Samuelson returned to the lobby and asked appellant whether the cigarettes were his, the only reply was: 'I don't smoke that brand.'

The foregoing recital was substantially the evidence of officers Cowan, Leslie and Turley. Officer Simonds, expert chemist, testified that the leafy material of the cigarettes was marijuana.

Appellant resisted search; attempted to conceal the cigarettes and exerted himself to the limit to prevent their recovery by the officers and never denied that the red package was his own. The lawful right to search a prisoner at the time of arrest, Bruce v. Sibeck, 25 Cal.App.2d 691, 696, 78 P.2d 741, implies the correlative duty on the part of the prisoner to submit to the search. When one owes a duty to the state and defies its agencies to enforce performance of such duty, no reasonable inference can be drawn other than that the prisoner was conscious of a knowledge of his guilt. Appellant's refusal to deliver the red package to his captors, and his resistance to search in the city jail justified the jury in finding (1) that he knew his package contained the narcotic, which fact the chemist discovered, People v. Gory, 28 Cal.2d 450, 454, 170 P.2d 433, and (2) that his willful interference with the performance of official duty was proof of his willful possession of the contraband. People v. Tomalty, 14 Cal.App. 224, 235, 111 P. 513. A prisoner's secret knowledge of the illegal character of narcotics in his possession is 'sufficiently shown by the conduct and behavior' of the accused in attempting to secrete them. People v. Tennyson, 127 Cal.2d ----, 273 P.2d 593, 595; People v. Batwin, 120 Cal.App.2d 825, 827, 262 P.2d 88; People v. Walker, 121 Cal.App.2d 173, 175, 262 P.2d 640. That the conduct of a person accused of crime immediately after his commission of the act charged is proper evidence, is too well established to be challenged. People v. Flannelly, 128 Cal. 83, 87, 60 P. 670. Attempts to escape, to hide, to evade a peace officer or to conceal from an arresting officer a contraband object in his possession are pertinent proofs of a guilty mind. (Ibid.) Consciousness of gulty may be inferred from an attempt to avoid apprehension. People v. Dabb, 32 Cal.2d 491, 500, 197 P.2d 1.

Appellant takes comfort from his assumption that the jury knew that he had no knowledge of the presence of the marijuana cigarettes in his red package. He contends that because of his intoxication at the time of his arrest, he could have had no knowledge of either (1) the contraband character of his cigarettes or (2) of their physical presence on his person. Now, his knowledge of their actual presence was determined by the jury on the testimony of four officers who saw the contraband removed from his clothing after he had tried to prevent the officers' seeing it. On mere suspicion it could not reasonably have been found that another had inserted the red package in his right sock or placed it in his coveralls. The pants of a man or the 'coveralls' over them are so intimate a vestment that what is found there, in the absence of a contradictory explanation, the contents of the pockets or of the inside of the garment are presumed or reasonably inferred to have been placed there by the owner. Also, when an object is found in such a garment worn by a person it is necessarily under his dominion or physical control and is, by reason thereof, a prima facie violation of the statute. ¹ The jury were, on the evidence of the four officers, justified in finding that appellant had knowledge, not only of the presence of the marijuana, but also of his control over it. Moreover, a finding of his knowledge of its presence in his package of cigarettes necessarily encompasses a finding that he knew the nature of the object and the uses to which it is applied. A man does not carry contraband merchandise in his sock or his pocket through accident. The violator of the statute is guilty unless he presents a defense prescribed by the statute, to wit: 'the written prescription of a physician,' etc. But despite the fact that he had no prescription for the marijuana, appellant contends that because he was drunk when arrested, he was unconscious of either his possession of the narcotic or of its contraband character. Whether he knew either was a fact which the jury found against him. The finding effectually determined that he had such knowledge prior to the act of inserting the contraband into his clothing and walking into the cafe where he was found drunk. People v. Gory, supra. If the law allowed crimes to be committed with impunity by those who are drunk, the criminal elements of a city would at every night-fall swim in rivers of alcohol to erase guilt of the murders, rapes banditry, and all the offenses proscribed by the statutes of this state. When a person imbibes alcohol, he knows he deadens his senses and that anything might occur by reason of his intoxication. How, then, can a violator of the law be excused for his crimes and yet, in spite of such behavior, expect the people to maintain a state for the preservation of life and liberty?

Instructions not Prejudicial

Appellant assigns as prejudicial the alteration of his instruction 33 as follows:

'It is an essential fact which must be proved beyond a reasonable doubt that the Defendant had knowledge that the article found on him was marijuana. You must acquit the Defendant if the People fail to prove beyond a reasonable doubt that he knew this article was marijuana while it was in his possession, if you find it was in his possession.'

Before the modification, the italicized phrase, 'While it was in his possession' was 'at the time it came into his possession.' The change was proper. There was no evidence of when, where or how the...