People v. Rochin, Cr. 4452

• Decision Date: 12 December 1950
• Docket Number: Cr. 4452
• Citation: 101 Cal.App.2d 140,225 P.2d 1
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. ROCHIN.

Page 1

225 P.2d 1

101 Cal.App.2d 140

PEOPLE v. ROCHIN.

Cr. 4452.

District Court of Appeal, Second District, Division 3, California.

Dec. 12, 1950.

Hearing Denied Dec. 22, 1950.

Hearing Denied Jan. 11, 1950.

See 225 P.2d 913.

David C. Marcus, Los Angeles, for appellant.

William C. Ring, Los Angeles, as amicus curiae, on behalf of appellant.

Fred N. Howser, Atty. Gen., Howard S. Goldin, Deputy Atty. Gen., for respondent.

PARKER WOOD, Justice.

Defendant was charged with violating section 11500 of the Health and Safety Code in that on July 1, 1949, he unlawfully had in his possession a preparation of morphine. In a trial without a jury he was convicted. He appeals from the judgment, all orders and rulings of the court.

On July 1, 1949, about 9 a. m., three deputy sheriffs entered defendant's bedroom after having forced the bedroom door open. They were not authorized by search warrant or at all to enter the room. Defendant and a Mrs. Hernandez were in the room. Two capsules, which were wrapped in cellophane, were on a small table therein. Jack Jones, one of the deputies, said to the defendant, 'Whose stuff is this?' Defendant then grabbed the capsules and put them in his mouth. Jones testified that at that moment the three deputies jumped upon the defendant, grabbed him by the throat, and began to squeeze his throat in an effort to eject the capsules from his mouth; that force was applied to his throat; that defendant 'hollered a little bit'; that he (Jones) put his fingers in defendant's mouth; and they put handcuffs on defendant while he was in the room. Jones then took the defendant to the Angelus Emergency Hospital and into the operating room there. A doctor's assistant strapped the handcuffed defendant to the operating table. Dr. Mier, assumed by the officers to be a doctor of medicine, placed an empty pail by the defendant, placed 'a tube down the defendant's throat,' and released a white chemical solution into the tube and into defendant's stomach. The defendant vomited into the pail, and two capsules in cellophane floated in the pail. Jones took the capsules from the pail and delivered them to a chemist in the sheriff's office. The chemist testified that he examined the two capsules and shook what powdery substance that appeared to be within them into small amounts of chemical reagents that he was using to make the test; that the amount he shook out was very small and was not enough to weigh; that the amount was consumed in the analysis; that the substance which he shook out of the capsules was morphine or one of its close derivatives. The two capsules were shown to the chemist while he was a witness. He testified further that they appeared to be empty; there is a very small amount of very fine powdery residue in one of the capsules; there is a stain or residue of some sort in the other capsule; and the brownish powder in the capsules contains morphine.

Jones testified further that defendant said he had obtained these two capsules of heroin from a person on Sixth Street the night before the arrest, and that he had been using heroin for the past six months.

Defendant did not testify, but it was stipulated that if he were a witness he would testify that the two capsules were taken from him by use of a stomach pump and without his consent and against his will.

Appellant contends that the arrest, search, seizure and examination of defendant violated rights guaranteed to him by Amendments IV and XIV of the Constitution of the United States and by Article I, sections 1, 13, and 19 of the Constitution of California, and that the evidence procured thereby was inadmissible; and that the coercive stomach pumping of defendant to obtain evidence against him compelled him to be a witness against himself in violation of said Amendment XIV and said Article I, section 13. He argues that the decision in People v. Mayen, 188 Cal. 237, 205 P. 435, 24 A.L.R. 1383, which was to the effect that illegally obtained evidence is admissible in a criminal trial in this state, should be overruled; and that the federal rule, which is to the effect that such evidence is not admissible, should prevail in the California courts.

The questions herein, regarding the admissibility in California courts of illegally obtained evidence, have been determined adversely to appellant's contentions. People v. Gonzales, 20 Cal.2d 165, 169, 124 P.2d 44; People v. Kelley, 22 Cal.2d 169, 173, 137 P.2d 1; People v. Harmon, 89 Cal.App.2d 55, 58, 200 P.2d 32; People v. Garcia, 97 Cal.App.2d 733, 218 P.2d 837; People v. One 1941 Mercury Sedan, 74 Cal.App.2d 199, 202, 203, 168 P.2d 443; see People v. Raffington, 98 Cal.App.2d 455, 220 P.2d 967. In People v. Gonzales, supra, it was said, 20 Cal.2d at page 169, 124 P.2d at page 46: '* * * the accepted rule in this state, as in many others, permits the introduction of improperly obtained evidence on the ground that the illegality of the search and seizure does not affect the admissibility of the...