People v. Sills
| Decision Date | 09 January 1958 |
| Docket Number | Cr. 3407 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. John SILLS, Defendant and Appellant. |
Martin J. O'Malley, San Francisco, for appellant.
Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Marvin J. Christiansen, Deputy Atty. Gen., for respondent.
Defendant and codefendant Joyce Sukarman were convicted by a jury of violation of section 11500, Health and Safety Code (possession of heroin). Defendant alone appeals from the judgment.
Questions Presented.
1. Sufficiency of the evidence (a) as to heroin in defendant's eye dropper; (b) as to possession.
2. Timeliness of notice of appeal.
Facts.
James Kane, a San Francisco motorcycle police officer, while traveling on Fulton Street, observed a man and a woman (defendant and the codefendant) enter the men's restroom of a service station. He went to the door and found it locked. At his request the attendant opened the door. Entering, Kane saw Joyce standing in the rear of the washroom with an open pocket knife in her hand. Defendant, with a hypodermic needle attached to an eye dropper in his hand, backed up and stepped behind the door. The eye dropper contained a colorless fluid. On the top of the toilet was a rolled up matchbox cover bound with pink thread. In defendant's overcoat pocket the officer found a measuring spoon, slightly black on the bottom. Plaintiff's expert testified that these objects were parts of an addict's outfit, the spoon being used to warm the heroin solution, the needle and dropper to inject the heroin. The rolled up matchbox cover is used to hold the needle. Officer Kane testified that a knife is used by addicts to open a hole in the arm. Joyce asked Kane for the contents of the dropper, saying that she had not had a shot in some time. Joyce also said that defendant was not an addict and not to blame him as it was all her fault.
Defendant testified that he had been living with Joyce; that after giving her money to see a doctor, he left home for work; that while waiting for a bus at a transfer point he saw Joyce coming out of Foster's. He went up to her and asked what she was doing. She said she was sick. She wanted to go to a restroom, although he tried to persuade her to go home. He followed her into the men's room of the service station, without saying anything about it being the men's room. He locked the door at her request. She said she needed narcotics. He tried to dissuade her. She started preparing the narcotic. She wet a little powder which she had in a piece of paper, scraped it off with a knife into a spoon and added water. She then drew it up with the eye dropper, to which she had attached the needle, both of which she took out of her pocket. She then laid the needle and dropper on the tank of the toilet. She pulled up her coat sleeve. Defendant then picked up the dropper. At that moment the door was opened and the officer walked in. Defendant did not back up and step behind the door. Defendant was already by the door. The officer asked defendant what he was hiding in his hand. Defendant said 'an eye dropper with some narcotics' which he took from Joyce to keep her from using.
1. (a) Heroin in the Dropper.
Defendant contends the prosecution failed to prove that the liquid in the dropper contained heroin. The prosecution carelessly neglected to couple up the articles found by Kane in the washroom with those testified to by the narcotics expert. Kane testified to there being a colorless liquid in the dropper. The expert testified that he was given a sealed box by the police property clerk. In it was a test tube containing a solution of heroin, an eye dropper with needle attached, a matchbox cover bound with pink thread, and a measuring spoon. The tube was then marked People's Exhibit 1 for identification, the box People's Exhibit 2 for identification, the eye dropper with needle attached and the matchbox, People's Exhibit 3 for identification, and the spoon People's Exhibit 4 for identification. Later during Officer Kane's testimony, all of the objects except the test tube were admitted in evidence without objection, bearing the same exhibit numbers respectively as for identification.
It is apparent that everyone at the trial, judge, counsel and the defendant, assumed that there was no question about the liquid in the dropper being a heroin solution and that there was no issue raised on the subject. Defendant at no time objected to the expert testifying as to the contents of the test tube, nor ever made the contention in the trial court that the heroin character of the liquid in the dropper had not been proved. In fact, in defense counsel's statement to the jury at the end of plaintiff's case, he said that he would prove that defendant 'at the time he was found with narcotics in his hand' (emphasis added) was attempting to prevent Joyce from using them. He repeated 'using the narcotics.' Defendant himself testified that he told the officer 'I got an eye dropper with some narcotics' (emphasis added) and that he had no idea where Joyce was getting narcotics. On cross-examination he was asked without objection if he had purchased 'that heroin' for her. He said he had not. Counsel for the codefendant stipulated that the contents of the dropper contained heroin. Defendant's counsel said nothing.
The record shows that throughout the trial defendant was not only contending that the dropper did not contain narcotics but was contending that it did and that he took the dropper to keep Joyce from using it. Defendant contends that his reference to narcotics must be disregarded because he was not a user and it was not shown that he was an expert on the subject. He never claimed that when he stated it was a narcotic that he did not know what it was. His admission was therefore enough in itself to show the character of the contents of the dropper. Moreover, he testified that he had been living with Joyce for over two years. A reasonable...
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