People v. Means

• Decision Date: 21 March 1960
• Docket Number: Cr. 3538
• Citation: 179 Cal.App.2d 72,3 Cal.Rptr. 591
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Elijah MEANS, Defendant and Appellant.

Page 591

3 Cal.Rptr. 591

179 Cal.App.2d 72

PEOPLE of the State of California, Plaintiff and Respondent, v. Elijah MEANS, Defendant and Appellant.

Cr. 3538.

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

March 21, 1960.

Rehearing Denied April 20, 1960.

Richens L. Wootton, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., Edward P. O'Brien, Deputy Atty. Gen., for respondent.

KAUFMAN, Presiding Justice.

The appellant, Elijah Means, and a co-defendant were charged by indictment with one count of conspiracy (Penal Code, § 182), and three counts of violation of section 11500 of the Health and Safety Code. The indictment also charged the appellant with several prior convictions for violating section 11500 of the Health and Safety Code, all of which were admitted before trial. A jury trial resulted in a verdict of guilty on all four counts of the indictment: 1) conspiring to sell narcotics; 2) possession of marijuana; 3) transporting marijuana; and 4) furnishing and giving away of marijuana.

On appeal from the judgment of conviction and the order denying his motion for a new trial, the appellant argues: 1) That as the evidence was insufficient to support the conviction on the conspiracy count, the Superior Court of Marin County had no jurisdiction to try him on the remaining counts of the indictment; 2) That the trial court committed prejudicial error in allowing the reading of a deposition of an absent witness under section 1345 of the Penal Code; and 3) That certain evidence obtained in the search of a car not owned by the appellant and not within his exclusive possession was erroneously admitted against him. There is no merit in any of these contentions.

The first contention on appeal is that the evidence is insufficient to support the verdict on the conspiracy count. The appellant admits the existence of a conspiracy of his co-defendant Stone and others, but argues that the evidence is insufficient to establish his role in it. For an examination of the appellant's argument, a detailed chronological exposition of the various transactions is necessary.

In April of 1957, one John Kane who had been recently discharged from the U. S. Air Force, moved into an apartment in Larkspur with a former air force buddy, Max Mendel. In 1957, Mendel proposed to Kane that they smuggle narcotics into this country from Mexico. Mendel said he had business connections in Mexico for obtaining narcotics and outlets in the Bay Area for distribution. Kane agreed and in the early part of June, Mendel made a trip to Mexico and returned with twenty pounds of marijuana which he had purchased at $25 per pound near Monterrey, Mexico. Mendel was unable to sell the marijuana through his connection in the Bay Area and asked Kane to find one. Kane contacted one Swain at the Hamilton Air Force Base, who said he thought he could dispose of it in San Francisco. Kane and Swain went to San Francisco and sold to one Gilbert one pound of marijuana for $80; the next night, they sold a pound of marijuana for $80 to one Birdwell in Santa Rosa. Swain also bought a pound of marijuana for $80 from Kane at Hamilton Air Force Base.

As Mendel and Kane still had seventeen pounds of marijuana in their inventory, Mendel suggested to Kane they approach one Charles H. Stone, a cook at the air force base. Stone agreed to dispose of the narcotics but stated he would have to contact his friends in the East Bay first. Mendel agreed to sell the marijuana to Stone for $50 per pound. About three days later, Stone phoned Mendel about 3:00 a.m. and informed him he had arranged to sell the marijuana in the East Bay and wanted six pounds delivered to him at the Black Point cut-off road at the county line. Mendel and Kane met Stone at the county line and sold him six pounds of marijuana in 2 3-pound paper bags and received a part payment of about $150. Several nights later, Stone appeared at the Larkspur apartment and paid Mendel the remaining $150 of the purchase price. At this time, Stone told Mendel and Kane that the marijuana was of an inferior quality and he was having trouble getting rid of it. However, three days later, Stone again appeared at the Larkspur apartment and picked up eight pounds of the marijuana that Mendel had obtained in Mexico and subsequently paid for it.

In the latter part of June, Stone again visited Mendel and Kane at their apartment and complained of the poor quality of the marijuana, that he was having trouble disposing of it, and he was not making enough profit on the sale to deem it advisable to continue selling it. Mendel then mentioned the possibility of going into the heroin business but thought it would be difficult to distribute. Stone, however, said he had channels through which to sell it and had a partner by the name of Elijah who was in Sacramento. Stone stated he would rather deal in heroin as it was easier to dispose of and there was a greater profit and was sure he could arrange for distribution as he had in the past. Mendel then mentioned he would go to Mexico again to obtain some heroin.

In late June or early July, Stone and the appellant went to a home of one Wilbur Jiggetts in San Francisco. Stone introduced the appellant to Jiggetts as 'my partner Elijah.' Jiggetts, who had also been stationed at Hamilton Air Force Base, was a former acquaintance of Stone's. Stone then advised Jiggetts he had access to a large quantity of marijuana and asked Jiggetts if he would help him dispose of it. Jiggetts agreed to do so and Stone promised Jiggetts he would get something out of it. Three days later, Stone met Jiggetts at Hamilton Air Force Base and said he had a quantity of marijuana to sell but wanted Jiggetts to smoke it first to see if it was of acceptable quality. Stone and Jiggetts then drove to the Black Point cut- off where Stone handed Jiggetts some marijuana and brown cigarette paper. After rolling and smoking the marijuana cigarette, Jiggetts said it was of good quality.

Stone then drove to a near-by gas station, made several phone calls and then told Jiggetts that they were going to pick up some marijuana. They drove to the Larkspur apartment of Kane and Mendel and picked up a suitcase. After returning to Jiggett's home in San Francisco, they opened the suitcase and found several paper bags. Stone gave one of the paper bags to Jiggetts. One of these contained one pound of marijuana and was later introduced into evidence at the trial. Stone and Jiggetts then drove to an address on Grove Street in San Francisco where a woman named 'Puddin" Johnson took the remainder of the marijuana from Stone and agreed to pay for it when it was sold. Stone took Jiggetts back to his home and left.

A few days later, the appellant and Stone again visited Jiggetts at the latter's home in San Francisco. All three of them smoked a marijuana cigarette. Stone said he had access to heroin and wondered if the Johnson woman would also buy that. Jiggetts replied he did not know. Therefore, the appellant, Jiggetts and Stone left and drove to the address on Grove Street. When they arrived, Jiggetts went in alone to tell her Stone was outside and wanted to know if she could find sales for heroin. 'Puddin" Johnson stated she would try to find an outlet and made a phone call. Jiggetts then returned to the car and told Stone that 'Puddin" had contacted a person who was coming over and that he was going into the house to wait for the contact. The contact soon arrived and discussed the sale of heroin with Stone. They dickered over the price and agreed on $600 per ounce if it was exceptionally clear and uncut. Stone and Jiggetts left the house and returned to the car where they discussed the above transaction with the appellant.

Over the July 4 week end, Mendel and Kane went to Tiajuana, Mexico, where Mendel made the arrangements to buy the narcotics. He soon discovered it was impossible to obtain heroin but bought ten pounds of marijuana for $150. They returned to Larkspur, weighed the marijuana and put it in one pound bags which were stored in Mendel's closet. On July 9 or 1, Stone contacted them and after finding out that they had obtained the marijuana, asked them to deliver six pounds to him at the Flying A gas station just north of Hamilton Air Force Base. Kane then drove to the station and saw Stone and a girl in his car and transferred six pounds to Stone's car. A few days later, Mendel and Kane drove to San Francisco and sold the remainder of marijuana for $200 to a friend of Gilbert's. Then Mendel and Kane went to the Hamilton Air Force Base and met Stone who claimed the second portion of marijuana was not much better than the first and again said there was no money in its sale and that Mendel should try to obtain heroin as he could dispose of large quantities in the East Bay. Mendel said he was making arrangements to go back to Mexico and would leave as soon as these were worked out.

On or about the 10th or 12th of July, Stone picked up his girl friend, Racheal Smith, and drove to Sacramento with her. On the way, they stopped at the appellant's home in Vallejo. When Stone and Racheal arrived there about 7:00 p. m., Stone and appellant went into the back bedroom and left Racheal alone in the livig room. They came out of the bedroom after about an hour. Then the appellant, his girl friend, Frances, Stone and Racheal went to Sacramento in Stone's car. Frances was carrying a package about half the size of a shoe box covered with a white handkerchief. On arriving in Sacramento, Stone parked the car on Fourth Street. Stone and appellant left the car and were gone about three hours. When the appellant came back to the car, Frances gave him the package. The appellant took the package across the street and gave it to several men sitting in a black Cadillac, and returned with a portable television set which he put in the back seat of the car. When Stone returned a little, later, he ...