People v. Tabb

• Decision Date: 21 November 1955
• Docket Number: Cr. 3131
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. R. C. TABB, Defendant and Appellant.

Page 858

289 P.2d 858

137 Cal.App.2d 167

The PEOPLE of the State of California, Plaintiff and Respondent, v. R. C. TABB, Defendant and Appellant.

Cr. 3131.

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

Nov. 21, 1955.

Hearing Denied Dec. 21, 1955.

Totton P. Heffelfinger, II (appointed by court), San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., J. Frank Coakley, Dist. Atty. of the County of Alameda, Robert L. Anderson, Deputy Dist. Atty., Oakland, for respondent.

KAUFMAN, Justice.

Defendant appeals from a judgment of conviction after jury verdict on a charge of violating § 11,500 of the Health and Safety Code, the unlawful selling, furnishing or giving away narcotics. He was charged also with a prior conviction of the same section. A plea of not guilty was entered, but the prior conviction was admitted.

On September 2, 1954, an agent of the State Bureau of Narcotic Enforcement, Major W. McBee, was introduced to appellant by Trosclaire, an informer and a heroin addict. They met opposite 3219 Fibert Street in Oakland, which was the address of appellant Tabb's art shop. Appellant was introduced as 'Candy'. Trosclaire had informed the agent that he thought appellant's last name was Yates. At this meeting Trosclaire told appellant that McBee wanted to get some marijuana. Appellant indicated that the price would be $15. McBee then gave appellant $15 and drove him to the vicinity of 37th and West Streets in Oakland. Appellant left the car and was gone for a few minutes. On his return he told McBee that the man he was looking for was not there. They returned to 3219 Filbert Street, and appellant gave back to McBee the $15. Appellant crossed the street to a phone booth, and apparently made a telephone call. On returning he told McBee that he was 'all wasted away' and didn't have anything himself, that if McBee wished he would 'hold out a can for him on the following day.' This, according to the agent, in the parlance of the narcotics trade, meant that the person didn't have anything, that anything he had was gone at that time.

On the following day, September 3, 1954, McBee contacted appellant opposite the art shop at approximately 12:50 p. m. Trosclaire was present. Appellant entered McBee's automobile where he handed a paper bag to McBee. McBee asked him if it was $15 and appellant said 'yes'. McBee gave him the money. Appellant asked McBee if he wanted to look at it to see if it was any good. McBee opened the bag and saw a green leafy substance. This proved to be a one-half ounce of marijuana, which was introduced as People's Exhibit No. 1.

McBee, at the trial, positively identified appellant Tabb as the person with whom he had negotiated the narcotics purchase. He stated that appellant's appearance had changed since the date of the transaction in that he no longer had the 'distinctive' goatee which he was wearing at the time of the sale. After the transaction McBee had gone through the photographic files of the Oakland Vice Squad, located appellant's picture therein as the party from whom he had made the purchase. Appellant was apparently not arrested until sometime in October. The informer, Trosclaire, at the time of trial, was in a federal hospital for narcotic addicts.

Appellant testified that he had never had any contact with McBee prior to the preliminary hearing, and denied all of the incidents related by McBee concerning the narcotic transaction. He admitted that Trosclaire, a heroin addict, had been living with him for about two weeks prior to September 3, at 3219 Filbert Street, Oakland. He said that he first learned of Trosclaire's addiction about a week and half after he came to live with him, and that he then asked him to move out, but since Trosclaire had no money, appellant could not turn him out in the cold. When asked if he had been previously convicted of a felony, appellant said that he had not, but on advice of counsel had pleaded guilty to a similar action. He admitted pleading guilty to two counts under § 11,500, Health and Safety Code for which he had spent two years in San Quentin and two years on parole.

Appellant contends that the questions asked by the prosecuting attorney and the statements made by him in argument constituted prejudicial misconduct and deprived him of a fair trial. The questioning which appellant assigns as prejudicial was as follows:

'Q. This was not your first brush with a narcotic, was it, Mr. Tabb? A. No, it was not.

'Q. Now, Mr. Tabb, have you ever been convicted of a felony? A. I have never been convicted of a felony, although on advice of counsel, I have pleaded guilty to a similar action.

'Q. Isn't it a fact, sir, that on April 8 of 1948, you were convicted in the Superior Court of the State of California in this County for two counts of 11,500 of the Health and Safety Code? A. I wasn't convicted. My attorney advised me to plead guilty.

'Q. Didn't you go to San Quentin, sir? A. Yes, I did. I spent two years in San Quentin and did two years on parole successfully.

'Q. And this 11,500 had to do with possession and furnishing of marijuana, didn't it? A. It did not.

'Q. It did not? A. It had to do with three marijuana cigarettes found on my front porch.

'Q. Possession of marijuana, is that correct? A. One count of possession, yes.

'Q. And a second count of furnishing marijuana, wasn't that true? A. That is what they said.

'Q. You, before listening to Major McBee on the stand here knew what marijuana was then, didn't you? A. I was slightly acquainted with it, yes.

'Q. And you also knew some of the terms we have been speaking of like pot and bread and things of that nature? A. I am afraid I haven't been in that element for quite a while.'

It is to be noted that during this questioning no objections were interposed by appellant's counsel.

There is, of course, no question of the propriety of impeaching a defendant by showing that he has been convicted of a felony. § 2051, Code of Civ.Proc. Furthermore questions are permitted to ascertain the nature of the offenses involved in the previous convictions. People v. Peete, 28 Cal.2d 306, 320, 169 P.2d 924; People v. Garrow, 130 Cal.App.2d 75, 278 P.2d 475; People v. Gardner, 128 Cal.App.2d 1, 7, 274 P.2d 908. Since, at first, appellant denied he had been convicted, further questioning was necessary to bring out the fact that he had actually been adjudged guilty of a felony. There can be no objections to the questions which call for the nature of the counts on which he was convicted. Was there, then, anything objectionable about the three remaining questions which were asked to determine whether or not he was familiar with the narcotic marijuana? His answers to the prior questions were rather evasive, tending to create the impression that he may not really have known anything about marijuana, but that he was unfortunate enough to be caught with it on his premises. Therefore, since one element of the offense to be proved by the prosecution was appellant's knowledge that the substance which he dealt with was a narcotic, it was proper to bring out facts to show that he was familiar with marijuana. In People v. Sykes, 44 Cal.2d 166, 280 P.2d 769, it was said that in circumstances where appellant had repeatedly denied the commission of the crime, it was within the permissible scope of cross-examination to ask if appellant had ever had narcotics in his possession. The court said that 'The evidence that at prior times he had narcotics in his possession was admissible to show familiarity with them.'

Appellant contends that the question of the district attorney went beyond the permissible purpose and tended to elicit testimony which in the minds of the jurors tended to prove that appellant had criminal tendencies and was likely to have committed a crime involving narcotics. He cites People v. Musumeci, Cal.App., 284 P.2d 168, 173, which holds that 'testimony tending only to prove inclination of an accused toward crime, thereby rendering more probable his guilt of the charge for which he is on trial is inadmissible.' The cited case cannot be said to parallel the situation here involved, for there defendant was questioned at great length to bring out the fact that he was a sex pervert, and the only purpose of doing so would be to show that he was inclined to commit a crime of the type with which he was then charged. Here appel...