People v. Spicer

• Decision Date: 22 September 1958
• Docket Number: Cr. 6204
• Citation: 329 P.2d 917,163 Cal.App.2d 678
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Richard Robinson SPICER, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 917

329 P.2d 917

163 Cal.App.2d 678

The PEOPLE of the State of California, Plaintiff and Appellant, v. Richard Robinson SPICER, Defendant and Respondent.

Cr. 6204.

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

Sept. 22, 1958.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., William B. McKesson, Dist. Atty., Los Angeles, Jere J. Sullivan, Lewis Watnick, Robert Lederman, Deputy Dist. Attys., Los Angeles, for appellant.

No appearance for respondent.

WHITE, Presiding Justice.

The District Attorney of Los Angeles County filed an information wherein defendant was accused of a violation of Section 11500 of the Health and Safety Code, in that he did, on or about November 26, 1957, have in his possession flowering tops and leaves of Indian Hemp (cannabis sativa), commonly referred to as marijuana.

At the time fixed for his plea, defendant made a motion under Section 995 of the Penal Code on the ground that defendant had been committed without reasonable or probable cause. The motion was granted and the information was ordered set aside. From such order the People prosecute this appeal.

As to the factual background surrounding this prosecution, the record reveals testimony before the committing magistrate that about 12:30 p. m., on the afternoon of November 26, 1957, two police officers were seated in a police automobile marked black and white. Both officers were in uniform. The police vehicle was standing near the curb at Fifth Street and Stanford Avenue. J. W. Ramey, one of the officers, testified that he first observed defendant talking to another man in front of a liquor store at Fifth Street and Towne Avenue. Defendant and his friend started walking cast on Fifth Street toward the officers. As defendant approached the police vehicle, the officers asked him to 'step over to the car a minute'. Defendant ignored the request of the officers and 'kept right on walking'. Officer Ramey's partner, Officer Drake, got out of the police automobile and 'hollered to the defendant to stop, that we would like to talk to him'. Defendant arrived at the corner of Fifth Street and Stanford Avenue, and as he was near the corner building, he started to turn left on Stanford Avenue. At that time, defendant looked in the direction of the officers. As defendant passed Officer Ramey, the latter observed defendant's right hand which was 'cupped, the fingers drawn into the palm and the thumb laid alongside of it'. Defendant was holding his hand, 'Alongside--right alongside of his body. He wasn't swinging it at all'. As he arrived at the corner, defendant started to turn his head in the direction of Officer Ramey. The latter observed something 'drop' near defendant's feet, a 'yellowish brown', that looked to the officer like a homemade cigarette. When the officer first saw it, as it was dropping to the ground, it was approximately a foot or maybe two feet from the ground, and it was maybe a foot behind the defendant. When he, the defendant, walked around the corner the cigarette was dropping. There was no one else in the immediate area of the defendant. The officer observed the cigarette strike the ground. The sidewalk was clean and as the officers saw the cigarette fall on the ground, Officer Ramey got out of the vehicle and went over to the cigarette and picked it up.

The officer identified People's Exhibit 1 for identification as the cigarette that he found on the ground, and which he had heretofore described. After picking it up, the officer ran to the corner and observed defendant running north on Stanford Avenue. Officer Drake pursued defendant on foot. They arrived at the alley at the rear of the Torch Club, which is on the corner of Fifth Street and Stanford Avenue, where they turned left into the alley, going west. Officer Ramey ran back to the police vehicle and drove west on Fifth Street to Towne, north on Towne to the alley, and then east in the alley. Officer Ramey observed the defendant run behind a building into an empty lot, and observed the former's partner running after defendant. The witness drove to that location, parked the vehicle, got out, and his partner had already placed the defendant under arrest.

Officer Ramey had often before seen defendant and saw him only two days before the happenings with which we are here concerned. About a week previous the officer encountered defendant with a lady and had stopped them and talked to them on that occasion.

Jack Olin Carter testified that he was a Los Angeles city police officer assigned to the Scientific Investigation Division as a chemist. His qualifications as an expert forensic chemist were stipulated to. The brown-wrapped cigarette testified to by Officer Ramey was found to contain a green leafy material which the witness examined microscopically and tested chemically. As a result of such examination the witness testified that in his opinion the substance was marijuana.

The sole question presented on this appeal is whether the foregoing testimony established reasonable and probable cause to hold defendant to answer to the superior court.

Appellant contends that the corpus delicti of the crime of illegal possession of marijuana and defendant's connection with the crime were established at the preliminary examination. We find ourselves in accord with appellant's claim. A cursory examination of the aforesaid evidentiary features present in the instant prosecution brings it within the sphere of cases holding that while mere presence at the scene of the crime standing alone is insufficient to justify a finding of guilt, nevertheless, guilty knowledge and intent to violate the law may be shown by the facts and circumstances of the case, including the conduct of the accused (People v. Gibson, 64 Cal.App.2d 537, 539, 149 P.2d 25; People v. Foster, 115 Cal.App.2d 866, 868, 253 P.2d 50).

People v. Belli, 127 Cal.App. 269, 15 P.2d 802, involved a prosecution for the illegal possession of morphine, wherein the facts were that shortly before his arrest, while walking along the street, defendant dropped a small white package on the sidewalk; that it was immediately picked up by another person walking in the opposite direction, and that, upon a search of the latter person, a small white package similar to the one defendant had thrown on the sidewalk was found, which contained an illegal quantity of morphine. The court held that the evidence was sufficient to establish defendant's possession, and that proof of possession at the very time of arrest was not essential. See also People v. McDaniel, 154 Cal.App.2d 475, 481, 316 P.2d 660; People v. Newman, 127 Cal.App.2d 430, 435, 273 P.2d 917.

In several cases in which the facts indicated that defendants threw away narcotics at or about the time of arrest, the evidence was held sufficient to establish defendants' possession of the narcotics. People v. Terrazas, 42 Cal.App.2d 281, 108 P.2d 680; People v. Rodrigues, 25 Cal.App.2d 393, 77 P.2d 503; People v. Herbert, 59 Cal.App. 158, 159, 210 P. 276. Also, where heroin capsules were found by officers on the seat of defendant's automobile, which defendant had just abandoned, it was held that the inference was justified that defendant had possession of the capsules while in the vehicle. People v. Shafer, 101 Cal.App.2d 54, 58, 224 P.2d 778.

If we consider that in the instant case the officer...