People v. Winston
| Decision Date | 14 October 1955 |
| Docket Number | Cr. 3108 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Jess Joseph WINSTON, Defendant and Appellant. |
Charles O. Morgan, Jr., San Francisco, for appellant.
Edmund G. Brown, Atty. Gen. of California, Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., for respondent.
Defendant appeals from a judgment of conviction after verdicts of guilty on three counts of felony, furnishing marijuana to specified minors, and one count of felony, possession of marijuana, and from an order denying new trial. He attempts to appeal also from an order denying probation. 1
Questions Presented.
1. Was corpus delicti proved in first three counts, that is, was there substantial evidence that the cigarettes smoked by the minors contained marijuana?
2. Alleged error in denying cross-examination of prosecuting witnesses.
3. Alleged error in denying severance of counts for trial.
4. Count 4. Court's refusal to instruct that defendant must know that the cigarettes found in his apartment contained marijuana.
5. Search on warrant of arrest.
Evidence.
'(a) Furnishing marijuana to minors.
Edna, aged 17, the prosecuting witness under the first count, testified that she had known defendant about two years, had been to his apartment over 100 times, and had smoked marijuana 15 to 20 times at his apartment. She described the appearance of a marijuana cigarette and the effect of smoking one. She had smoked marijuana prior to meeting defendant. On January 2, 1954, 2 Edna and Barbara, aged 17 years, went to defendant's apartment, pursuant to his invitation given them by him on New Year's Eve. About half to an hour after their arrival, defendant went into the kitchen and brought back a marijuana cigarette, doing so after the girls had told him they wanted to get 'high,' an expression of marijuana users meaning they want to smoke marijuana, as it gives them an exhilarated or 'high' feeling. Both girls and the defendant smoked the cigarette, passing it from one to the other. Both girls became 'high.' Edna did not see where defendant got the cigarette but usually he kept the marijuana cigarettes in a sewing machine. Barbara had been to defendant's apartment about 100 times; had smoked marijuana 20 to 25 times and knew its appearance and its effect. Defendant charged neither girl for this cigarette. Defendant never had charged Edna, but previously had charged Barbara, for marijuana. March 13th, the date charged in the third count, Barbara went alone to defendant's apartment, arriving about 10 or 11 p. m. There were other people there. Defendant asked prosecutrix if she wanted to get 'high.' Defendant brought a marijuana cigarette from the kitchen. It was then passed from person to person. Barbara Krissman did not participate. After smoking it prosecutrix became 'high.'
Defendant denied that Barbara Krissman was ever in his apartment. Barbara Krissman corroborated prosecutrix Barbara as to the events occurring on the night of March 13th including the fact that a cigarette was passed around and smoked by all present, excepting herself. As she did not use marijuana she could not testify to the character of the cigarette. However, she noticed its effect on those who did. They
Police Officer Woods testified that when he arrested defendant at the latter's apartment, defendant denied knowing either Edna, Barbara or Barbara Krissman. Officer Rinker at that time found a telephone directory sheet in defendant's apartment on which was written 'Edna' and 'Barbara' with a telephone number after each name. One was prosecutrix Edna's phone number, the other was that of prosecutrix Barbara. Both girls reported to the police their experiences with defendant.
At the trial defendant admitted knowing Edna and Barbara but denied that they had been in his apartment more than two times, neither of which was January 2d. He denied selling or giving marijuana to either girl. He claimed that on January 2d, when the girls testified he gave them marijuana at his apartment, he was in certain taverns and was not at his apartment. Both girls testified that while at his apartment defendant watched a football game on television. He testified that his television set was not in working order at that time. He denied that either Barbara or any of the persons she mentioned were at his apartment on March 13th. Defendant accounted for Edna's phone number being in his directory list, by saying Edna had phoned him asking him to give Barbara her phone number. Edna denied this.
So far as the first three counts are concerned, the testimony of the girls, if believed (and it apparently was believed by the jury), was sufficient to sustain the conviction.
'(b) Possession.
Four police officers armed with a warrant for defendant's arrest went to defendant's apartment and were admitted by him. Searching the premises they found in the kitchen three partially smoked marijuana cigarettes, under a table scarf on top of a bread box. Defendant denied all knowledge of these cigarettes and contended they must have been left by a girl to whom he had rented the apartment while he was in Sacramento. He had been occupying the apartment for approximately three weeks between his return and his arrest. He testified that he never used marijuana, and that his only experience with it was five years previously when a man in a bar had offered him a drag on a cigarette wrapped in brown paper, which the man referred to as a 'weed.' He had refused. As to the cigarette paper he claimed he used it to make cigarettes out of pipe tobacco, a can of which was found in his apartment. They also found a package of wheat straw paper, of the type in which the narcotic expert testified marijuana cigarettes usually were wrapped.
Here again, the evidence was sufficient to support his conviction of possession. The marijuana was found in the kitchen, the place from which the girls had seen him bring the marijuana used by them. His knowledge of marijuana was shown by his smoking it and his furnishing it to his guests.
As to the first three counts, defendant contends that there is no proof that the substance smoked was marijuana; that to prove that a substance is a narcotic there must be not only the testimony of the user but of a medical doctor or expert. We know of no such requirement. It is true that in People v. Tipton, 124 Cal.App.2d 213, 268 P.2d 196, and People v. Candalaria, 121 Cal.App.2d 686, 264 P.2d 71, there was in addition to the testimony of the users, that of experts who testified that in their opinion, from the description of the substance given by the users and their reactions from its use, the substance was a narcotic. But neither case holds that such expert opinion is an essential to a conviction if the users demonstrate a knowledge of the narcotic as such. But if such opinion is required, it was present in this case. Edna testified she had smoked marijuana 15 to 20 times, and Barbara that she had smoked it 20 to 25 times. They described the appearance of a marijuana cigarette, having tucked in ends. Maloney, who qualified as an expert on marijuana testified this was characteristic of marijuana cigarettes. They described the passing of the cigarette from one person to another, each person taking one or two puffs and inhaling. Maloney said this was characteristic of the use of such cigarettes. They described their 'high' feeling after about 15 minutes, their feeling of freedom from their cares, lasting 3 to 4 hours, then their feeling of 'coming down,' that is, their feeling of depression and then that they felt hungry. All of these Maloney testified were characteristic. He testified that if a person had the feelings above mentioned it would be a good indication that the person had been using marijuana. On cross-examination he admitted that without seeing the individual it would be as easy to conclude from those symptoms that he had been drinking as to conclude he had been smoking marijuana. While Maloney was not asked his opinion as to whether the substance smoked by the girls was marijuana, he did testify from years of experience with the State Narcotic Bureau, and from talking to many marijuana smokers, to the manner of usage, sensation and symptoms produced by it, many of which were identical with those described by the girls.
The competency of the girls to testify that the cigarettes were marijuana was shown by their knowledge of it from previous experience with it. Defendant has cited no case holding that a user of a narcotic is incompetent to testify that it is a narcotic. As we said in People v. Candalaria, supra, 121 Cal.App.2d 686, 690, 264 P.2d 71, 73:
Defendant produced in court a cigarette containing Bull Durham, made to look as the girls testified the marijuana cigarettes looked. Edna stated that except that the ends were not tucked in it looked like the one she smoked on January 2d. Barbara said it looked like the one she smoked except that it probably was not as...
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