People v. Winston

• Decision Date: 07 February 1956
• Docket Number: Cr. 5815
• Citation: 293 P.2d 40,46 Cal.2d 151
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Jess Joseph WINSTON, Defendant and Appellant.
• Court: California Supreme Court

Page 40

293 P.2d 40

46 Cal.2d 151

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jess Joseph WINSTON, Defendant and Appellant.

Cr. 5815.

Supreme Court of California, In Bank.

Feb. 7, 1956.

Appeal from Superior Court, City and County of San Francisco; Melvyn I. Cronin, Judge.

Charles O. Morgan, Jr., San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., and Victor Griffith, Deputy Atty. Gen., for respondent.

SPENCE, Justice.

Defendant was charged with the commission of four felonies. Counts one and two related to his alleged furnishing of marijuana to two minor girls on January 2, 1954; and count three related to his furnishing of marijuana to one of the girls on March 13, 1954; all in violation of section 11714 of the Health and Safety Code. Count four related to his alleged possession of marijuana on September 1, 1954, in violation of section 11500 of the Health and Safety Code. He appeals from the judgment of conviction on all four counts and from an order denying a new trial. He also attempts to appeal from an order denying probation, but since such an appeal is not authorized, Pen.Code, § 1237; People v. Mason, 109 Cal.App.2d 87, 89, 240 P.2d 64, it will be dismissed.

As grounds for reversal, defendant argues these points: (1) Lack of proof of the corpus delicti on counts one, two, and three that is, lack of substantial evidence that the cigarettes smoked by the two minor girls contained marijuana; (2) curtailment of the cross-examination of the girls to show their state of mind and possible bias; (3) denial of the severance of count four from the other three counts for trial; (4) refusal to instruct, with respect to count four, that defendant must know that the cigarettes found in his apartment contained marijuana; and (5) absence of a search warrant when the officers arrested defendant and found various items of evidence in his apartment. Only point (4) raises a serious question, but a review of the record convinces us that there was no prejudicial error and that the judgment of conviction should therefore be affirmed. Const. art. VI, § 4 1/2.

The two girls testified that on January 2, 1954, they went to defendant's apartment; that they had known defendant about two years, had previously been to his apartment about one hundred times and had smoked marijuana there at least twenty times. About half an hour after their arrival and following their affirmative response to defendant's question of whether they wanted to get 'high,' defendant went to the kitchen and returned with a cigarette. Both girls and defendant smoked the cigarette, passing it from one to the other; and both girls became 'high.' One of the Girls testified that on March 13, 1954, she went alone to defendant's apartment, joining a small party there; that on this latter occasion defendant again brought a cigarette from the kitchen; that it was passed from person to person, and she, with the other smokers, became 'high.' Her story was corroborated by one of the group who did not smoke the cigarette but who described its 'high' effect on the others 'to the point that they were feeling very, very giddy and silly.' Both prosecuting witnesses described the cigarette smoked as having tucked in ends (customary with a marijuana cigarette) and the subsequent exhilarating effects they experienced, which were followed about three hours later by a depressed feeling. In August, 1954, both girls reported to the police their experiences with defendant.

On September 1, 1954, four police officers armed with a warrant for defendant's arrest went to defendant's apartment and were admitted by him. They arrested defendant, searched the premises, and found three partially smoked marijuana cigarettes in the kitchen under a table scarf on top of a bread box. Defendant stated that he had never used marijuana, denied all knowledge of the cigarettes, and contended that they must have been left by a tenant to whom he had rented the apartment while he was out of town. He had been occupying the apartment for approximately three weeks between his return and his arrest. The officers further found a package of wheat straw paper, of the type in which, according to the narcotic expert, marijuana cigarettes are customarily wrapped. They also found a telephone directory sheet on which was written the names of both the prosecuting witnesses and their telephone numbers. At that time, defendant denied knowing either of the girls.

At the trial defendant admitted knowing both girls but denied that they had been in his apartment more than two times, neither of which was January 2, 1954. He denied selling or giving marijuana to either girl. He claimed that on January 2, when the girls testified that they smoked marijuana furnished by him in his apartment, he was not even there but was at various taverns. He further denied the visit and all the related circumstances as charged with respect to one of the girls on March 13, 1954. He said that he had the telephone numbers of the two girls in his directory list because each of the girls had telephoned asking him to give her number to the other in the event he saw or heard from the other. Both girls denied this.

Defendant first contends that the corpus delicti was not proved for the first three counts, in that there was no proof that the substance smoked was marijuana. While conceding that the prosecution need not physically produce the narcotic, he insists that to prove a substance is a narcotic, there must be not only the testimony of the user but also that of a medical doctor or expert. People v. Candalaria, 121 Cal.App.2d 686, 264 P.2d 71; People v. Tipton, 124 Cal.App.2d 213, 268 P.2d 196. Although in the cited cases, in addition to the testimony of the users, experts testified that in their opinion, from the description given by the users and their reactions from its use, the substance was a narcotic, neither case holds that such expert evidence is required for a conviction if the users demonstrate a knowledge of the narcotic as such. But in any event, such expert evidence was present here. Both girls testified that they had frequently smoked marijuana; they described the apperance of a marijuana cigarette, having tucked in ends; they related the custom of smoking such a cigarette in chain fashion in a group, each person taking one or two puffs and inhaling, then passing it to another; and they told of their 'high' feeling after about fifteen minutes, their feeling of freedom from their cares, lasting about three to four hours, then their feeling of 'coming down,' that is, their feeling of depression, at which time they became hungry. An inspector from the State Narcotic Bureau, after qualifying as an expert on marijuana following his many years' service as a chemist with the bureau, corroborated each of these essential points in the girls' testimony, and further testified that if a person had the feelings above described, it would be a good indication that the person had been using marijuana. It is true that he was not asked his opinion as to whether the substance smoked by the girls was marijuana, and that, on cross-examination, he admitted that without seeing the person it would be as easy to conclude from the described symptoms that such person had been drinking as to conclude that he had been smoking marijuana. But these were matters affecting the jury's evaluation of his entire testimony, including his description of the manner of usage, sensations, and symptoms produced by such smoking, which closely corresponded with the two girls' testimony on these matters.

The competency of the girls to testify that the cigarettes were marijuana was shown by their knowledge of it from previous use. In view of such experience, the trial court permitted the girls to identify the substance furnished them by defendant as marijuana. 'The weight, of course, to be given this testimony was for the jury.' People v. Candalaria, supra, 121 Cal.App.2d 686, 690, 264 P.2d 71, 73. Defendant cites the fact that he introduced into court a cigarette containing Bull Durham but rolled in wheat straw paper so as to resemble the marijuana cigarettes described by the girls; that each girl stated that except that the cigarette 'wasn't so flat' and the ends were 'not tucked in,' it looked like the one each had smoked on January 2; and that neither could tell by looking at the cigarette whether it contained marijuana. But these admissions by the girls did not disqualify them from testifying that the substance they smoked was marijuana, the taste and effect of which was known to them. At most, their failure to tell whether a cigarette contained marijuana or not by merely looking at the outside wrapping went to the weight of their testimony, and not to its admissibility. In view of the foregoing evidence, we conclude that the fact that the cigarettes smoked by the girls were marijuana cigarettes was amply proved. People v. Candalaria, supra, 121 Cal.App.2d 686, 689, 264 P.2d 71; People v. Rios, 127 Cal.App.2d 620, 622, 274 P.2d 163.

Defendant next contends that his cross-examination of the two girls to show their state of mind and possible bias was unduly curtailed. Both girls were asked when they reported to the police the incidents of their smoking marijuana in defendant's apartment; each said that it was in the course of questioning by a police officer attached to the Juvenile Bureau; and each thereafter was arrested. The court sustained objections to questions as to the reason for their arrest and the conversations there had. Each girl, however, stated that the police officer had asked her questions pertaining to her testimony to be given at the trial. Defendant maintains that he was entitled to elicit the conversations in order for the jury to determine whether the police officer had indicated to the girls that each might receive leniency in her own case if she were to testify...