People v. McDaniel

• Decision Date: 17 October 1957
• Docket Number: Cr. 2774
• Citation: 316 P.2d 660,154 Cal.App.2d 475
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Don McDANIEL, Defendant and Appellant.

Page 660

316 P.2d 660

154 Cal.App.2d 475

The PEOPLE of the State of California, Plaintiff and Respondent, v. Don McDANIEL, Defendant and Appellant.

Cr. 2774.

District Court of Appeal, Third District, California.

Oct. 17, 1957.

Muir Woolley, Sacramento, for appellant.

Edmund G. Brown, Atty. Gen., by Doris H. Maier and Lloyd Hinkelman, Deputies Atty. Gen., for respondent.

SCHOTTKY, Justice.

Defendant was found guilty on both counts of an information charging him with violating section 11500 of the Health and Safety Code (possession of narcotics) and section 11530 of the same code (cultivation of narcotics). Judgment was pronounced, the terms to run concurrently.

Appellant has appealed from the judgment and in his opening brief contends: (1) That the evidence was insufficient to justify the finding that appellant was guilty of the crimes charged; (2) that the verdict was illegal in that appellant was convicted of two crimes, one necessarily included in the other. In his closing brief appellant makes the additional contentions that the court erred in not instructing the jury as to flight in accordance with section 1127c of the Penal Code and that the district attorney was guilty of prejudical misconduct in his remarks to the jury.

Before discussing appellant's contentions we shall summarize the evidence as shown by the record.

On September 16, 1956, Vol Gene McElhaney, the Chief Vice Officer of the sheriff's office, Stanislaus County, drove out to 1736 Beverly Drive, in the city of Modesto, where he discovered ten marijuana plants growing in a flower bed on said premises. The flower bed was located between the front lawn and the roadway that runs along the front of the premises. The flower bed was overgrown with weeds except for the area where the marijuana was found growing therein. The marijuana plants were growing in a weed-free area that appeared to be under cultivation. The plants were healthy and green and stood 12 to 16 inches in height. As a result of Officer McElhaney's discovery, the premises at 1736 Beverly Drive were placed under surveillance by the sheriff's office from Sunday, September 16, 1956, until 2:30 or 3:00 p.m. on the following day.

On September 17, 1956, the premises at 1736 Beverly Drive were occupied by Don McDaniel, the appellant, his wife and their two children. The McDaniels had been renting the premises since August 9, 1956. Under the conditions of tenancy the appellant was supposed to take care of the house and yard, which included taking care of the lawn and flower beds. The appellant admitted cutting and watering the premises on various occasions.

Prior to the McDaniel occupancy of said premises, R. E. Evanson and his family rented the premises from August 1, 1956, to August 8, 1956. Del Reeves, a musician, and his wife rented said premises from April 24, 1956, to July 24, 1956. While Mrs. Reeves resider at said residence she cut and watered flowers in the flower bed which produced the marijuana plants. At that time there was not a 'cleared area' in said flower bed. She was not aware of any marijuana growing in the yard during her occupancy of said premises.

On Sunday evening, September 16, 1956, Officer McElhaney visited the McDaniel residence where he had a conversation with Mrs. McDaniel about appellant's whereabouts. Mrs. McDaniel informed Officer McElhaney that the appellant was not at home. Officer McElhaney informed Mrs. McDaniel that he had heard marijuana was growing on the premises and he wanted to see her husband. Approximately an hour after McElhaney's departure appellant arrived home and was informed by his wife of McElhaney's visit and the nature of same. Appellant at this time left his abode and drove across town to his father's home where he called the sheriff's office, attempting to locate McElhaney. Appellant left his father's phone number and requested that McElhaney contact him. At approximately 2:00 a.m. on September 17, 1956, McElhaney called appellant at his father's home and said he wanted to see the appellant. Appellant asked 'is it about narcotics?' and was informed by Officer McElhaney that it was. Appellant agreed to meet McElhaney in half an hour at appellant's home. Appellant failed to keep his appointment with McElhaney. McElhaney waited until approximately 3:00 a.m. and then returned to town. At noon on September 17, 1956, the appellant was arrested at his place of employment, Milk Producers Association. Appellant was taken to his father's residence and then transported with his wife to their abode at Beverly Drive. When confronted with the marijuana plants, appellant denied said plants were his and stated he had never seen marijuana before.

Appellant was asked by Officer McElhaney why he didn't show up on the previous evening as agreed upon, and appellant responded as follows: 'If I did [show up] I knew you would arrest me, and I didn't want to go to jail last night. I figured I would rather go to jail today.'

Mrs. McDaniel was questioned about the marijuana plants by the arresting officers, and appellant, who was standing nearby, stated, 'Leave her out of this. She doesn't know anything about it.' Appellant was removed to the county jail, where he was booked.

Officers McElhaney and Donald Bear removed ten healthy marijuana plants from the flower bed on Beverly Drive. Said plants were turned over to Allen Gilmore, a criminologist with the California Bureau of Criminal Identification and Investigation. Gilmore's analysis of the plants showed that the plants were marijuana.

The plants appeared to be six or seven weeks old when Gilmore received them from Officer McElhaney on September 18, 1956. Gilmore testified that a great deal of care is required to grow marijuana and that the plants must be watered every day or they will wilt and die. To successfully transplant marijuana plants, considerable care must be taken and the transplanting must be done when the plants are young and must contain the tap roots. He also testified that when transplanting marijuana the old soil should accompany the root structure of the plants.

Officer Bear took several soil samples from the flower bed and marijuana bed located therein, and a sample from a mound of soil which was located to the right of the marijuana bed.

Prior to his occupancy of the premises at 1736 Beverly Drive, appellant had rented and resided in premises located at Dakota and Beckwith Roads in the Modesto area. Appellant had rented said premises from Virgie P. Grass and her husband during the period April 6, 1956, to September 7, 1956. Appellant's rented domicile consisted of the whole quarter acre, which included a water tank and pump located behind the house.

On September 23, 1956, Officer Bear drove out to the Grass residence at Dakota and Beckwith Roads and received permission to take soil samples from two depressions in the ground located behind the pump on said premises. Officer Bear removed two soil samples, one each from the two depressions in the soil which were approximately the size of a garden shovel. The soil samples were taken from an area approximately three feet behind the pump and near a water faucet. The surrounding area had been disced, but not the area which contained the two depressions. The two depressions were in an area covered by tall weeds and grass.

On September 27, 1956, Officer McElhaney deposited all the soil samples with Harry Johnson, a criminologist in the California Bureau of Identification and Investigation at Sacramento. McElhaney requested Johnson to test the various soil samples and see if all of them belonged to the same location or if some of the soil came from another location. Johnson made a test of the soils to identify the properties of the soil by measuring the density distribution and the quantity of the various mineral components in the soil. Mr. Johnson testified that the density distribution test, which he employed, was the most effective and the most practical and exacting manner of determining soil aggregates for the purpose of identifying or distinguishing between them.

Johnson's analysis revealed that People's Exhibit 4-2-b, which consisted of soil taken from the bare mound of earth located to the right of the marijuana bed, and People's Exhibits 5-1-c and 5-2-c, which consisted of soil taken from the two depressions were identical and indistinguishable in their distribution and the quantity of minerals which goes to make up the substance of the soil. People's Exhibits 4-1-b, which was soil taken from the marijuana bed at 1736 Beverly Drive, 4-3-b, 4-4-b, 4-5-b, 4-6-b and 4-7-b, which consisted of soil samples taken from the flower bed at 1736 Beverly Drive, were clearly different in their distribution and the quantity of minerals, from People's Exhibits 4-2-b, 5-1-c and 5-2-c, which, as previously stated, were identical.

During the period appellant resided at premises located at Dakota and Beckwith Roads, he was observed by James Nelson, a boy eight years old, Sonja Nelson, a girl nine years old, and their mother, Leila Nelson, who occupied the premises next door, watering the area around the pump. Appellant retained a dog in an enclosed area near the pressure system, and was observed on different occasions first watering the dog and then sprinkling water on what looked like weeds. Appellant was observed on one occasion to pull a small round object out of the ground from the area near the pump and to take said object to his back porch.

During the trial appellant denied that he had any knowledge of narcotics or that he had ever used narcotics. The prosecution introduced into evidence testimony that appellant's wife had testified in a divorce proceeding in December, 1955, that she thought appellant used marijuana. A few months prior to appellant's arrest, Officer McElhaney had a conversation with appellant concerning narcotics. During the course of said conversation appellant admitted that he had used narcotics but had...