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

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

Cr. 3108.

Decided: October 14, 1955

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.


‘(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 ‘appeared rather ridiculous. They carried on to the point that they were feeling very, very giddy and silly.’

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.

1. Corpus Delicti.

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: ‘In view of the many experiences which Rosamond had had with narcotics in general and with heroin in particular, and in view of the closeness with which her description of the sensations and effects of heroin injections compared to the testimony of the expert on those topics, it was not error to permit her to testify that the substance furnished her by defendant was heroin. The competency of a witness to express an opinion on a matter of this kind is largely within the sound discretion of the trial court and the ruling thereon will not justify a reversal in the absence of an abuse of such discretion. * * * The weight, of course, to be given this testimony was for the jury.’

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 flat as the one she used. Neither girl could tell by looking at it whether it contained marijuana. Defendant contends this fact makes the girls incompetent to testify that the ones they smoked contained marijuana. That fact did not disqualify them from testifying as to the substance they smoked. They then knew its taste and its effect. At most, if the failure to tell what is inside a paper by merely looking at the outside is important, it went to the weight of their testimony and not to its admissibility.

The corpus delicti, that is, the fact that the cigarettes smoked by the girls were marijuana cigarettes, was amply proved.

2. Cross-Examination.

On cross-examination of prosecutrix Edna defendant asked her when she reported to the police the incident when she and Barbara smoked marijuana at defendant's apartment. She stated that it was when Mr. Woods (a police officer attached to the Juvenile Bureau) came out to talk to her. Defendant brought out that after talking to her Woods arrested her. The court sustained an objection to a question as to what she was arrested for, and also to the conversation there had. She stated that Woods had there asked her questions pertaining to her testimony to be given at the trial. Defendant contended he was entitled to the conversation in order for the jury to determine whether Woods had indicated she might receive leniency in her own case if she were to testify against defendant. While the conversation as a whole was not admissible the questions concerning the conversation between her and Woods as to her testimony at the trial and also the questions whether she believed from her conversation with Woods that she would obtain such leniency should have been permitted. A similar situation occurred in the cross-examination of Barbara. In both cases the cross-examination was unduly curtailed. While the extent of cross-examination is largely in the discretion of the trial court (see 27 Cal.Jur. 122–123) nevertheless considerable latitude should be allowed to show the state of mind and possible bias of the prosecutrix. See People v. Evans, 113 Cal.App.2d 124, 127, 247 P.2d 915; see also People v. Pantages, 212 Cal. 237, 297 P. 890, as to cross-examination to show state of mind of a witness. However, an examination of the entire record shows that the error was without prejudice. Both girls had admitted using marijuana prior to defendant's giving it to them. Both were subject to control by the juvenile authorities, had juvenile records, and were extensively interviewed by the police. Time and again the jury learned that both girls were in custody and that their testimony was subject to the distinct possibility that it was given in the hopes of obtaining leniency. Practically everything the defendant hoped to show by the further cross-examination (it already had been quite extensive) eventually got before the jury, except, of course, an express agreement for leniency, and there was not the slightest indication that there had been any such agreement.

3. Severance.

The court denied a motion to try count 4 (possession) separately from the three counts charging furnishing marijuana to minors. Section 954, Penal Code, provides that crimes of this nature may be included in one accusatory pleading, subject to the right of the trial court in its discretion in the interests of justice and for good cause shown to order any offense or offenses to be tried separately. In the absence of a showing of an abuse of discretion in refusing a severance, the trial court's ruling will not be reversed on appeal. People v. Leete, 130 Cal.App.2d 725, 727, 279 P.2d 769; see also In re Pearson, 30 Cal.2d 871, 186 P.2d 401.

4. Instruction on Knowledge.

Defendant offered an instruction in the language of People v. Cole, 113 Cal.App.2d 253, 248 P.2d 141, to the effect that the defendant must have knowledge that the article in his possession was a narcotic. The court refused to give this instruction but did give CALJIC No. 703, which in People v. Perez, 128 Cal.App.2d 750, 759, 276 P.2d 72, we held did not include this requirement. Starting with People v. Cole, supra, it has now become well settled that knowledge of the narcotic nature of the article is a necessary element in the crime of possession of a narcotic. See cases discussed in People v. Candiotto, 128 Cal.App.2d 347, 275 P.2d 500; see also People v. Perez, supra, 128 Cal.App.2d 750, 276 P.2d 72; People v. Tennyson, 127 Cal.App.2d 243, 273 P.2d 593; People v. MacCagnan, 129 Cal.App.2d 100, 276 P.2d 679. Plaintiff contends that People v. Cole, supra, was based upon a misunderstanding of the ruling in People v. Gory, 28 Cal.2d 450, 170 P.2d 433, and asks us to reassess the decision in the Cole case and to disregard the many cases supporting the rule requiring such knowledge to be shown. Concerning a similar request made in People v. Rice, 123 Cal.App.2d 124, at page 125, 266 P.2d 200, at page 201, the court said: ‘Nor are we at all impressed to learn that the deputy attorney general who briefed the present case is of the opinion that the Cole case was incorrectly decided. The opinion in that case is one which the authorities should understand and respect.'3

In view of the many cases which have adopted the rule of the Cole case, we see no reason for attempting to overthrow that rule.

It seems to us that a great deal of the attorney general's fear that such a rule will make narcotic convictions impossible is unfounded (particularly is this so in view of the many convictions occurring since the Cole case, as shown by the appeals to this court) and is due to a failure to realize that a defendant's knowledge of the narcotic character of an article in his possession is in nowise dependent upon his admitting such knowledge. Such knowledge ‘may be shown by circumstantial evidence and reasonable inferences that may be drawn therefrom.’ People v. Batwin, 120 Cal.App.2d 825, 827, 262 P.2d 88, 90. A defendant's conduct and behavior may supply the required element. People v. Tennyson, supra, 127 Cal.App.2d at page 246, 273 P.2d 593. Any circumstance from which the jury may fairly draw the inference of knowledge of the narcotic character of the article knowingly in defendant's possession is sufficient to make out a prima facie case of knowledge, requiring the defendant to produce proof to overcome the inference.

While the court erred in refusing to instruct upon the question of knowledge, such error, under the circumstances of this case, was not prejudicial. Just as in People v. Candiotto, supra, 128 Cal.App.2d 347, 275 P.2d 500, and People v. Perez, supra, 128 Cal.App.2d 750, 276 P.2d 72, where we held that the failure to give the required instruction on this subject was not prejudicial, it is inconceivable that once the jury found defendant knew of the presence of the cigarettes under the table scarf in the kitchen, they would, or could, have found that he did not know they were marijuana cigarettes.

5. Search.

The police officers with a warrant for the arrest of defendant went to defendant's apartment and were admitted by him. After placing him under arrest they searched the apartment, finding the evidence hereinbefore mentioned. Defendant contends that as the officers did not have a search warrant, the search was illegal and therefore the evidence was inadmissible under the rule of People v. Cahan, 44 Cal.2d 434, 282 P.2d 905. The very question raised here was presented in People v. Coleman, 134 Cal.App.2d 594, 286 P.2d 582, hearing denied by the Supreme Court. We adopt the excellent statement of Mr. Justice Fox, 134 Cal.App.2d at page 599, 286 P.2d at page 586: ‘It is well settled that a search without a warrant is valid where it is incident to a lawful arrest, if it is reasonable and made in good faith; and that a seizure, during such a search, of evidence related to the crime is permissible. In re Dixon, 41 Cal.2d 756, 761–762, 264 P.2d 513; Harris v United States, 331 U.S. 145, 151, 67 S.Ct. 1098, 91 L.Ed. 1399; United States v. Rabinowitz, 339 U.S. 56, 61, 70 S.Ct. 430, 94 L.Ed. 653; McIntire v. United States, 10 Cir., 217 F.2d 663, 665; Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145 [51 A.L.R. 409]. In the case last cited, the court succinctly stated: ‘The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime, and to search the place where the arrest is made in order to find and seize things connected with the crime * * * is not to be doubted.’ There is nothing in the language, logic or rationale of the Cahan case, where the search and seizure was accomplished in violation of constitutional guaranties, which is in conflict with the above principle, which has prevailed not only in California and the federal courts, but in our sister states. Annotations: 32 A.L.R. 680; 51 A.L.R. 424; 74 A.L.R. 1387; and 82 A.L.R. 782.'

In both the Coleman case and the Dixon case, supra, the police did not have a warrant of arrest but the court in each case held that under the circumstances the arrest was a valid one nevertheless. In our case the officers had a valid warrant of arrest. In Sayers v. United States, 9 Cir., 2 F.2d 146, the court stated that the search of adjacent rooms and the seizure of liquor and papers were a ‘duty’ of the officers making a lawful arrest.

United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, held that a search of the defendant's premises incidental to a lawful arrest at those premises was not unreasonable and expressly overruled Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, relied upon by defendant, and which had held to the contrary.

The appeal from the order denying probation is dismissed. The order denying a new trial and the judgment are affirmed.


1.  There is no appeal from such order. Section 1237, Penal Code, the section providing for appeals, provides only for an appeal from an order granting probation. See People v. Mason, 109 Cal.App.2d 87, 89, 240 P.2d 64, holding that there is no appeal from an order denying probation.

2.  The first count charged defendant with furnishing marijuana to Edna on that date, the second count with furnishing marijuana to Barbara likewise on that date.

3.  In two of the cases applying the doctrine of the Cole case, as well as in that case itself, the Supreme Court denied a hearing. People v. Candiotto, supra, 128 Cal.App.2d 347, 275 P.2d 500; People v. Barnett, 118 Cal.App.2d 336, 257 P.2d 1041.

BRAY, Justice.

PETERS, P. J., and FRED B. WOOD, J., concur.