People v. Toms

• Decision Date: 22 August 1958
• Docket Number: Cr. 1240
• Citation: 329 P.2d 90,163 Cal.App.2d 123
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Herschel Travis TOMS, Jr., and Daisy Belle Moore, Defendants and Appellants.

Page 90

329 P.2d 90

163 Cal.App.2d 123

The PEOPLE of the State of California, Plaintiff and Respondent, v. Herschel Travis TOMS, Jr., and Daisy Belle Moore, Defendants and Appellants.

Cr. 1240.

District Court of Appeal, Fourth District, California.

Aug. 22, 1958.

John H. Marshall, Los Angeles, for appellants.

Edmund G. Brown, Atty. Gen., and Joe J. Yasaki, Deputy Atty. Gen., for respondent.

MUSSELL, Justice.

Appellants were charged with violating section 11500 of the Health and Safety Code, a felony, in that on or about November 5, 1957, in Tulare county, they unlawfully had in their possession a quantity of heroin. They entered pleas of not guilty and trial was had before a jury which found them guilty as charged in the information. Motions for new trial and applications for probation were denied. Appellant Toms was sentenced to the State's prison at Vacaville and appellant Moore was sentenced to the State's prison at Corona. This appeal is from the judgments of conviction and from the order denying motions for new trial.

At about 11:00 a. m. on November 5, 1957, appellants were traveling south on highway 99 when they were stopped by a highway patrol officer for speeding. Appellant Toms was driving and was given a citation. At about 1:00 p. m. on the same day another highway patrolman (Morton E. Camp), while patroling the highway in Tulare county, copied an all-points radio broadcast concerning the Oldsmobile in which appellants were riding. He observed the Oldsmobile and pulled out after it. The Oldsmobile increased its speed to 80 miles per hour and passed several other cars. The officer finally overtook it and ordered the driver to pull over. The officer then pulled up about 10 feet behind the Oldsmobile after it came to a stop. After satisfying himself that there was nothing in the road or the area of the car and that nothing had been thrown from it, he walked over to the Oldsmobile. Appellant Moore was driving it and appellant Toms was seated in the right front seat. Officer Camp asked appellant Moore for her driver's license and then returned to his patrol car. Appellant Moore got out of the Oldsmobile and started walking toward the officer's car and he told her to go back to the Oldsmobile. Shortly thereafter, when officer Camp was in his car, appellant Moore got out of the Oldsmobile, carrying a brown paper bag. She walked to the front of the Oldsmobile, crossed in front of it and walked for some distance to the right, away from the highway and front of the car. Appellant Toms remained seated on the passenger side with his arms over the car door, watching appellant Moore. Officer Camp then proceeded toward appellant Moore. He walked between the two vehicles and along the right of the passenger side of the Oldsmobile. At this time he observed that the area around the Oldsmobile was clear of all 'foreign matter.' As the officer walked beyond the Oldsmobile towards appellant Moore he had his back to appellant Toms. After retrieving the paper sack which appellant Moore had been carrying, the officer turned back toward the Oldsmobile and saw a crumpled aluminum foil object on the ground, even with the passenger door and three feet from the car. The object was bright and shiny and was in the clear dirt area near the car door. The object was about three inches long and one inch in diameter and was tightly compressed. Appellant Toms was still seated on the passenger side of the Oldsmobile but the car door was partially open. The officer picked up the object and unwrapped the aluminum foil. Inside was a white, lined paper containing a light grey powder substance, which was later analyzed and found to be 139 grains of heroin, of the value of approximately $700.00.

Other officers were summoned to the scene and a search was made of the Oldsmobile. The officers found between the front and rear seats a clear plastic bag containing three plastic spoons, an eye dropper, and a glass case containing two hypodermic needles. A box of Kleenex containing a white powder, which later was shown to be milk sugar, was found in the trunk, with a roll of aluminum foil, women's and men's clothing, phonograph records, and other items.

Appellants first contend that it was prejudicial error to permit a prosecuting witness to testify as to appellant Moore's prior conviction. We are not in accord with this claim. The record shows that during the trial highway patrolman Elvin E. Rogers testified on direct examination by the district attorney that he was present at and overheard part of a conversation between patrol officer Pieschke and appellant Moore. Officer Rogers testified:

'A. Well, actually I said nothing to either one of the defendants. Officer Pieschke asked Miss Moore, he says, 'Have you been the route before?' And she stated that she didn't know what he was talking about. And then h...