People v. Miller

• Citation: 162 Cal.App.2d 96,328 P.2d 506
• Decision Date: 14 July 1958
• Docket Number: Cr. 3383
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Marion MILLER, Defendant and Appellant.

Page 506

328 P.2d 506

162 Cal.App.2d 96

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Marion MILLER, Defendant and Appellant.

Cr. 3383.

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

July 14, 1958.

E. R. Williams, Stockton, for appellant.

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

DOOLING, Justice.

Appellant was convicted by a jury of three narcotics offenses, possession of marijuana, transportation of marijuana, and furnishing marijuana to a minor. The several offenses were alleged to have occurred on or about October 30, 1956.

The minor, a girl of fifteen, was cooperating with the police. On October 30, 1956, she was in an automobile with appellant and one Spencer, who was made a co-defendant in this case. They drove her to a doctor's office where she met the officers. She testified that appellant while in the automobile smoked a marijuana cigarette and threw the butt to the ground. Later an officer found the butt of a marijuana cigarette where the car had been parked. This is the basis of the conviction of transportation.

That same evening appellant, Spencer and the minor were in appellant's apartment. The minor testified that while there she smoked a part of a marijuana cigarette. In answer to the question who lit this cigarette the minor testified:

'I am pretty sure it was Joe [the appellant] but I'm not positive,' and she further testified that it was handed around from one to the other without any special order. This was the only evidence to support the verdict of furnishing marijuana to a minor.

Later the officers arrived with a warrant. When they arrived at the apartment no marijuana was being smoked. They found in the apartment a can containing 'traces' of marijuana and some cigarette butts, described by the chemist as 'pieces of cigarette paper in there that were burned on one end, which resembled roaches.' A roach is the butt of a smoked cigarette. These showed traces of marijuana. Some seeds of marijuana were found in the dirt in a vacuum cleaner and in an ash tray. This is the basis of the possession conviction.

The evidence was legally sufficient to support all three convictions. One who carries a narcotic on his person in a moving automobile may be found guilty of transportation. People v. Holliday, 120 Cal.App.2d 562, 564, 261 P.2d 301; People v. Coleman, 100 Cal.App.2d 797, 801, 224 P.2d 837. The uncorroborated testimony of the minor, though weak, is sufficient to support the verdict of 'furnishing,' since the minor is not an accomplice. People v. De Paula, 43 Cal.2d 643, 647, 276 P.2d 600. The traces of marijuana found in appellant's apartment with the other evidence will support the finding of possession. Nor is there any force in appellant's claim that the search of his apartment was illegal. The officers were armed with a warrant and even though they may not have technically complied with the law in its execution, where compliance with Penal Code section 844 would probably permit the destruction of discriminating evidence, compliance is not required. People v. Maddos, 46 Cal.2d 301, 306, 294 P.2d 6; People v. Shelton, 151 Cal.App.2d 587, 588, 311 P.2d 859.

On November 19, 1956, almost three weeks after appellant's arrest, a 10 year old boy found fifteen cans of marijuana and a paper bag containing marijuana under the shrubbery in the back yard of an apartment on the next street behind the apartment occupied by appellant. The two yards were separated by a five or six foot high, solid board fence with no gate or other opening. Appellant had lost a leg in an accident and testified that he doubted if he could climb this fence because of his disability. When this large quantity of marijuana was first mentioned objection was made to any evidence concerning it and the court stated: 'If it isn't connected up, we will strike it out.' No evidence was produced to connect appellant with this marijuana although it was the subject of extensive testimony. When the fifteen cans of marijuana and that found in the paper bag was finally offered proper objection was again made. The court admitted them over this objection. Appellant's counsel then made a motion to strike on the ground that this evidence had not been connected up and no knowledge of appellant of this marijuana had been shown....