People v. Morgan, Cr. 3380

• Decision Date: 21 February 1958
• Docket Number: Cr. 3380
• Citation: 157 Cal.App.2d 756,321 P.2d 873
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Roy MORGAN, Defendant and Appellant.

Page 873

321 P.2d 873

157 Cal.App.2d 756

The PEOPLE of the State of California, Plaintiff and Respondent, v. Roy MORGAN, Defendant and Appellant.

Cr. 3380.

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

Feb. 21, 1958.

Hearing Denied April 16, 1958.

Benjamin Davis, Lionel Browne, San Francisco, for appellant.

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

FRED B. WOOD, Justice.

Convicted of a violation of section 11500 of the Health and Safety Code, sale of heroin on August 30, 1956 (count I), and of a violation of section 11557 of that code, opening and maintaining a place for selling, giving away and using narcotics on that date (count II), defendant has appealed from the judgment and from the order denying a new trial.

Upon four separate occasions (August 21, 24, 28 and 30, 1956) two officers 'strip searched' an informant, supplied him with currency and took him by auto to a point near defendant's residence, whence the informant departed in the direction of defendant's place of abode. ¹ In each case one of the officers remained in the auto and the other took a position in a sandwich shop across the street from defendant's house. After a brief interval the informant upon each occasion returned to the officers with a package of heroin and without the money. The officers, not the informant-participant, testified at the trial. The prosecution refused to disclose the name of the informant-participant, claiming the information privileged under section 1881(5) of the Code of Civil Procedure.

There is no direct evidence that defendant was at home upon any occasion except the last. There is a gap in the evidence of the officers' observations of the movements of the informant-participant after he left the auto, on the way to and from defendant's apartment, in the following particulars: (1) In respect to August 24 and 28, there is no evidence on the question whether the informant-participant contacted anyone while out of the sight of the officer who remained in the auto; (2) In respect to August 30, neither officer was asked whether the informant-participant contacted anyone between the time he left the auto and the time he returned to it.

The packets of heroin which the informant-participant delivered to the officers on the 24th, 28th and 30th of August were admitted in evidence over the objection that they were incompetent, irrelevant and immaterial as regards this defendant and have no bearing upon this case. Because of the lack of connection with the defendant, the objection should have been sustained. People v. Dixon, 94 Cal. 255, 258, 29 P. 504 [acts and declarations of third parties in attempting to influence a witness, not in presence of the defendant or authorized by him, inadmissible]; People v. Choy Ah Sing, 84 Cal. 276, 278, 24 P. 379 [same]; Union Transportation Co. v. Bassett, 118 Cal. 604, 613, 50 P. 754 [evidence that a man offered for $2,000 to obtain a rescission of order of removal, without a showing of connection with defendants, in order to impugn motives of defendants in ordering removal, held inadmissible]; Edwards v. San Jose Printing & Publishing Soc., 99 Cal. 431, 439, 34 P. 128 [evidence of plaintiffs' use of money in elections prior to publication of libel held inadmissible in absence of showing that defendants had knowledge of such acts when making the publication complained of].

The failure to prove that the informant-participant contacted no one upon his way...