People v. Sanders, Cr. 3511

• Decision Date: 25 August 1958
• Docket Number: Cr. 3511
• Citation: 328 P.2d 825,163 Cal.App.2d 132
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Travis SANDERS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 825

328 P.2d 825

163 Cal.App.2d 132

The PEOPLE of the State of California, Plaintiff and Respondent, v. Travis SANDERS, Defendant and Appellant.

Cr. 3511.

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

Aug. 25, 1958.

Nubar Tashjian, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Peter T. Kennedy, Deputy Atty. Gen., for respondent.

DRAPER, Justice.

After jury trial, defendant was found guilty of sale, possession and transportation of marijuana, and was sentenced to prison. He appeals from the judgment.

One Henson, an undercover agent employed by the district attorney, testified that appellant shared with Henson and another the smoking of a marijuana cigarette to show Henson the quality of appellant's product, sold Henson a quantity of marijuana, drove Henson to the latter's home to hide the marijuana, and then shared the smoking of another such cigarette.

Appellant asserts error in statements of the prosecuting attorney and in testimony of an inspector, all tending to show the integrity of Henson and the generally poor reputation of the area where the crimes were committed. It is doubtful that these claims of error are well founded. If they were, they could not avail appellant, since no objection was made at trial. (3 Cal.Jur.2d 604.)

The offenses charged were committed August 13, 1957. Appellant was arrested October 15. His automobile was seized at that time and examined next day. A partially smoked marijuana cigarette was found in it, and was introduced in evidence over appellant's objection. Appellant asserts error in the admission of this evidence. The court instructed the jury that such evidence was not received to show distinct offenses or continued criminality, but only for such bearing as it might have upon appellant's innocence or guilt of the offenses here charged. (CALJIC 33.) The mere fact that the evidence showed an offense other than that charged does not render it inadmissible. People v. Peete, 28 Cal.2d 306, 314-315, 169 P.2d 924. Here the evidence had some tendency to show knowledge by appellant of the narcotic character of the substance sold to Henson. Also, the partially smoked, hand rolled cigarette found in the car could be compared with the two similar remnants, already in evidence, of the cigarettes which Henson testified were smoked by appellant, jointly with others. The fact that the cigarette was found after the charged offenses does not destroy its admissibility. People v. Freytas, 157 Cal.App.2d 706, 321 P.2d 782; People v. Bean, 149 Cal.App.2d 299, 308 P.2d 27. Here the lapse of time was greater than in the cited cases, but we cannot say, as a matter of law, that the evidence is too remote to be relevant. This was primarily a question for the trial court. In the light of the instruction given, we see no prejudice to appellant.

Appellant also urges error in the giving of an instruction that 'the mere possession of one of the prohibitive...