People v. Schwartz
| Citation | 240 P.2d 1024,109 Cal.App.2d 450 |
| Decision Date | 26 February 1952 |
| Docket Number | Cr. 4664 |
| Court | California Court of Appeals |
| Parties | PEOPLE v. SCHWARTZ. |
Morris Levine, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen., Stanford D. Herlick, Deputy Atty. Gen., for respondent.
In two counts of an information filed by the District Attorney of Los Angeles County, defendant was accused of violating section 11500 of the Health and Safety Code. Count I charged illegal possession of a narcotic in the form of morphine while Count II alleged the sale of a quantity of morphine. A motion to dismiss under section 995 of the Penal Code was granted as to Count II and denied as to Count I. Following entry of a plea of not guilty as to Count I, the cause proceeded to trial before a jury which returned a verdict finding defendant guilty as charged.
A motion for a new trial and arrest of judgment was interposed and denied. Proceedings were suspended and defendant was granted conditional probation. This appeal is from the order denying his motion for a new trial.
The ground upon which the appeal herein is predicated makes it necessary to epitomize the factual background surrounding this prosecution. The record reveals that on June 15, 1950, one Bonnie Whitcomb, described by Officer Jones as 'known to me as a narcotic user' was confined in the Los Angeles County Jail on 'suspicion of narcotic addition and use'. Miss Whitcomb had known the defendant for some two or three years on terms described by her as 'hardly' business. She testified, .
On June 15, Deputy Sheriff Jones, assigned to the narcotic detail of the Sheriff's office, went to the county jail where Miss Whitcomb was incarcerated as aforesaid. There he held a conference with her which revolved around her association and dealings with defendant. Miss Whitcomb was indebted to the latter in the sum of approximately $200.00. On that evening Officer Jones took Miss Whitcomb from the jail to a cafe on Sunset Boulevard where they had dinner. While at the cafe Miss Whitcomb, in the presence of the officer, telephoned defendant. Upon completion of the telephone call Miss Whitcomb turned to Officer Jones and said that 'the deal was on for 2:00 tomorrow afternoon'. At the appointed time Officer Jones took Miss Whitcomb from the county jail to the Tropicana Motel in Los Angeles County where she resided in Apartment 121. Assisting and participating in this investigation were Federal Agent Carpenter and Deputy Sheriffs Smith, Farrell, Shelton, and May, the latter being a woman deputy sheriff.
Upon arrival at the motel about two o'clock Miss Whitcomb was immediately taken to her apartment.
It might here be stated that a prosecution was then pending against Miss Whitcomb in the then existing Beverly Hills Justice Court, and according to her testimony, the reason she called defendant and asked him to come to her apartment was that Officer Jones had promised her that if she 'could get Mr. Schwartz (defendant) to come over and see you, that he (Officer Jones) would arrange to have a certain case that was pending in the Beverly Hills court against you dismissed'.
When Miss Whitcomb was taken to her apartment, as aforesaid, she had in her possession $400 in marked currency given her by the officers. The latter stationed themselves in apartment 120 near a door connecting with Miss Whitcomb's apartment, with the exception of deputies Shelton and Farrell who took up positions outside the motel. The officers in apartment 120 listened at the connecting door while Miss Whitcomb spoke and determined that they could hear conversation in her apartment.
At 2:30 p. m. defendant arrived in an automobile. His approach was witnessed by Deputy Shelton who had taken up a position across the street from the motel. From this position he could see the doors to both of the aforesaid apartments. Defendant drove west on Santa Monica Boulevard, past the motel to Westbourne Drive, the next intersection. He crossed the tracks on Santa Monica Boulevard at that intersection, returning east to La Cienega Boulevard. The again crossed to the opposite side of Santa Monica Boulevard, traveling west until he reached the aforesaid motel, where he stopped. He emerged from the driver's side of his vehicle and entered room 121. At that time he was carrying nothing with him.
From the next room the officers heard defendant's knock. The door opened and the following conversation ensued:
'Miss Whitcomb: You're late, Phil. Defendant Schwartz: I got held up.
Thereupon, defendant left the room and the door closed behind him. About five minutes had elapsed since he left his car. He then returned to his automobile, opened the front door, and reaching over the front seat lifted out a bound catalog. Defendant shut the vehicle door and returned to Miss Whitcomb's apartment where he was intercepted by Deputy Sheriff Jones. When defendant had left the room he was not carrying anything, but when approached upon his return was carrying the aforesaid catalog under his right arm. The officer told defendant he was under arrest and asked him if he had any narcotics, to which he replied that he did not. A search of his person disclosed $250.00 of the marked bills originally given Miss Whitcomb. A search of the catalog revealed a small white bottle labeled 'Saccharine' containing white pills.
Deputy Sheriff Jones asked defendant where he had obtained the saccharin. He told the officers that approximately one week prior to June 16 someone had broken into his automobile; that pills had been scattered throughout his car; that he believed the pills to be saccharin; that he gathered them together and placed them in the bottle. He stated that the bottle contained saccharin which he used as a sample in his capacity as a drug salesman, using the bottle to demonstrate the type of saccharin dispensed by his firm. When asked about the money found in his possession defendant stated that he had received $250 from Miss Whitcomb; that the entire amount was for a debt she owed him.
Defendant told Federal Agent Carpenter that the bottle contained saccharin. When Federal Agent Carpenter remarked that the tablets did not look like saccharin, defendant replied, 'Well, it is saccharine'.
The aforesaid bottle taken from defendant was initialed by Deputy Sheriff Shelton and Deputy Sheriff Jones placed it in a large white envelope...
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...persons already engaged in criminal activities is not entrapment, even though police officers participate in them. (People v. Schwartz, 109 Cal.App.2d 450, 454, 240 P.2d 1024; People v. Burnett, 204 Cal.App.2d 453, 456, 22 Cal.Rptr. Appellants would have been equally guilty of the violation......
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Henderson v. United States
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