People v. McCullough, Cr. 3435

• Citation: 158 Cal.App.2d 310,322 P.2d 289
• Decision Date: 10 March 1958
• Docket Number: Cr. 3435
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Albert McCULLOUGH, Defendant and Appellant.

Page 289

322 P.2d 289

158 Cal.App.2d 310

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

Cr. 3435.

District Court of Appeal, First District, Division 1, California.

March 10, 1958.

Hearing Denied May 7, 1958.

Edward T. Mancuso, Public Defender of City and County of San Francisco, Waldo F. Postel, Deputy Public Defender, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., for respondent.

PETERS, Presiding Justice.

McCullough was charged with the sale and possession of narcotics on November 28, 1956. The possession charge was subsequently dismissed. He was convicted on the illegal sale charge. He appeals from the judgment of conviction and from the order denying his motion for a new trial.

Defendant does not challenge the sufficiency of the evidence to sustain the conviction. He does, however, challenge the propriety of the trial court's ruling in admitting evidence of another offense, and contends such ruling was erroneous and prejudicial. We agree.

In order to indicate the prejudicial nature of the challenged evidence, some reference should be made to the evidence introduced on the charged offense. That offense was that defendant sold narcotics on November 28, 1956. Officer Godrum, a plain clothes officer, testified that on that day, in the company of an informer by the name of Rose Thomas, he saw the defendant at Ellis and Fillmore Streets in San Francisco. Rose called the defendant over to the car in which they were riding and asked him if he had anything. The defendant replied: 'Yes, but you will have to get out and walk.' The officer then handed Rose Thomas a $10 bill and told her to take a walk with defendant and to keep her hands in sight. Rose got out of the car and joined the defendant, who was accompanied by another woman, and the three started to walk down Ellis Street, with Officer Godrum trailing them about 10 to 12 yards behind. The officer testified that while the three persons were walking down the street he saw the defendant take the $10 bill out of the hand of Rose Thomas and saw him hand her two white objects. Rose then came back to the car driven by the officer and handed him the two white objects, which later were discovered to be two bindles of heroin.

The prosecution, over objection, offered evidence of another transaction that was supposed to have occurred on November 8, 1956. Inspector Ohlsen of the State Bureau of Narcotic Enforcement testified that on that day he and Officer Hogan searched one Frank Thomas, an informer, and then gave him two marked bills. They then drove Thomas to Ellis and Steiner Streets where they let him out of the car. They observed Thomas walk on Ellis to Fillmore. There Thomas met the defendant. Thomas and defendant walked over to an automobile occupied by one Archie Hamilton. Thomas got in the front seat with Hamilton and the defendant in the back seat. This car, with the three men, was then observed being driven to Ellis and Steiner Streets. Thomas got out, and the vehicle proceeded onwards. Thomas rejoined the two officers and handed Inspector Ohlsen two packets which later were found to contain heroin. Thomas no longer had the money. The officers did not see Thomas hand any money to defendant, nor did they see defendant hand anything to Thomas. The third man in the automobile Archie Hamilton, was arrested several days later.

The defendant denied seeing Rose Thomas or selling her heroin on November 28, 1956, or on any other occasion. He also denied getting into an automobile with Frank Thomas or Archie Hamilton on November 8, 1956. Hamilton refused to testify on constitutional grounds.

On this evidence the jury found defendant guilty of the sale of narcotics on November 28, 1956.

Appellant contends that it was error to permit the prosecution, over objection, to introduce evidence of the November 8th transaction. We agree with this contention. That evidence did not establish that the appellant had committed any crime on that date. No one testified that anything passed from the informer to appellant, or from appellant to the informer. The automobile did not belong to appellant. There were three men in that car, the informer, appellant and Hamilton. Who gave the informer the heroin or took his money does not directly or indirectly appear.

The General rule is, of course, that evidence of other crimes is not admissible. To this rule there are several exceptions. Thus, when not too remote, evidence of other acts of a similar nature may be admitted to prove a material fact, or when the evidence tends to show motive, scheme, plan or system, or where such evidence tends to show guilty knowledge or intent. People v. Torres, 98 Cal.App.2d 189, 219 P.2d 480. In People v. Lapin, 138 Cal.App.2d 251, 291 P.2d 575, a defendant was charged and convicted of illegal possession of marijuana. Evidence of a prior offense was improperly admitted. The judgment was reversed. The proper rule was stated as follows (138 Cal.App.2d at page 259, 291 P.2d at page 581): 'The rule is now firmly established that evidence of a distinct, substantive offense cannot be received unless there is some clear connection between that offense and the other charged from which it may be logically inferred that if guilty of one he must be guilty of the other. People v. Lane, 100 Cal. 379, 385, 34 P. 856. If that is not the case, such evidence is not admissible. It cannot be...