People v. Marich
Decision Date | 16 March 1962 |
Docket Number | Cr. 7972 |
Citation | 19 Cal.Rptr. 909,201 Cal.App.2d 462 |
Court | California Court of Appeals Court of Appeals |
Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Nick MARICH, Defendant and Appellant. |
John F. Sheffield and Harold, I. Cherness, Los Angeles, for appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Mario A. Roberti, Deputy Atty. Gen., for respondent.
Convicted by a jury upon two counts of unlawful possession of heroin (Health & Safety Code § 11500) on February 3, 1961 and March 22, 1961, respectively, defendant appeals from the judgment. As to Count I his attorneys argue insufficiency of the evidence and as to Count II unlawful search and seizure.
Court I. The burden of the argument is that the quantity of narcotic found in defendant's possession was so small that it should be disregarded. Counsel say in their brief: No authority is cited in support of these propositions and the cases are to the contrary.
Armed with a search warrant, police officers went to appellant's apartment on February 3, 1961. Upon observing numerous puncture wounds on appellant's left hand, Officer O'Neill placed him under arrest for narcotic addiction. A search was then made of appellant's bedroom where the officers found in his shoe an eyedropper, rubber bulb, piece of string around the bulb, piece of cotton, a hypodermic needle and a cigarette package. On a table they found a piece of paper on which was a brown stain and which was folded in a manner indicating that at one time it was used as a 'bindle,' i. e., a container for heroin. They also found a partially smoked marijuana cigarette in a vacuum cleaner, some dexamyl, amphetamine, and seconal; and a pipe containing what appeared to be marijuana. Asked, '[i]s this your fit, Nick?' defendant said, 'Yes, it is.' The piece of cotton and the folded paper are the significant items.
The People's expert witness, a forensic chemist, testified that he examined these items of February 27th. He noted 'several powdery fragments present in the folds of the paper.' He stated that '[i]n reference to the piece of dirty cotton I found that that particular piece of dirty cotton had a residue inside the cotton and on the cotton and as a result of a series of chemical examinations, it is my opinion that this residue contains Heroin.' It was likewise his opinion that the powder residue found in the folds of the paper contained heroin. He testified that there was a sufficient amount so that a test conducted to determine the presence of heroin would have reliable results. Also that
It is unlawful under § 11500 to possess 'any narcotic other than marijuana except upon the written prescription of a physician * * *.' (See, People v. Salas, 17 Cal.App.2d 75, 78, 61 P.2d 771.) We recently held, in People v. Anderson, 199 A.C.A. 541, 550-551, 18 Cal.Rptr. 793, 799 that
Appellant does not dispute the finding of the expert witness that the powder contained heroin. Nor does he claim that he ever requested and was denied the right to have the substance tested by a defense chemist. (Cf., People v. Washington, 163 Cal.App.2d 833, 843, 330 P.2d 67.) The fact that at the time of trial no substance was visible to the naked eye would not be fatal to the People's case. People v. Anderson, 87 Cal.App.2d 857, 861, 197 P.2d 839, 841: People v. Shafer, 101 Cal.App.2d 54, 59, 224 P.2d 778, 781:
People v. Candalaria, 121 Cal.App.2d 686, 689, 264 P.2d 71, 72: ...
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