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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Clarence SPRIGGS, Defendant and Appellant.

Cr. 8495.

Decided: September 18, 1963

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and C. A. Collins, Deputy Atty. Gen., for respondent.

In a nonjury trial the defendant was convicted of unlawfully possessing heroin. He admitted allegations of the information that he had been convicted twice previously of felonies. He appeals from the judgment.

Appellant contends that the court erred in sustaining the prosecution's objection to a certain question asked by defendant's counsel.

On February 17, 1962, about 9:30 p. m., while Officer Cochran was standing in a darkened doorway at the rear of 809 East Fifth Street, in Los Angeles, he saw defendant Spriggs and a woman standing at the entrance of an alley which extends east and west at the rear of said address. That entrance was at the intersection of the alley and Stanford Street. Those persons were about 40 feet from the officer. Two other officers were with Officer Cochran at that time. Officer Cochran testified that he saw defendant Spriggs bend over a small bush at the alley entrance and place his hand under the bush; when defendant withdrew his hand, the officer (witness) saw a white piece of paper in his hand; then defendant looked all around and again placed his hand under the bush; after the defendant withdrew his hand, he began walking eastward through the alley and directly in front of the doorway where the officer was standing; when defendant arrived at the doorway, the officer stepped out and said, ‘Police officer’; at that time the defendant jumped backward and made a throwing motion with his hand; the officer saw him throw a blue balloon and a white piece of paper to the ground; the officer picked up those articles, and saw that the paper contained 11 empty gelatin capsules, and that the balloon contained a white powder resembling heroin; then he arrested the defendant.

The articles which the officer picked up were received in evidence as Exhibit 1. It was eatablished that the white powder was heroin.

On cross-examination, Officer Cochran testified that the woman who was with defendant was arrested also, and at the time of her arrest he was aware that she was a known narcotics user; her name was Albertina Rowland; in his opinion there were ‘marks' on her; at the time of trial, he (officer) did not know her whereabouts. He was asked the following question by counsel for defendant: ‘Did you ask her [at the time of arrest] if the narcotics you allegedly found were hers?’ He replied, ‘Yes, I did.’ Counsel for defendant asked: ‘What did she say?’ The deputy district attorney objected on the ground that it was immaterial and hearsay. The objection was sustained. (This is the ruling which appellant asserts was reversible error.)

Defendant Spriggs testified as follows: He was arrested on said February 17, about 9 p. m., while he was with a woman by the name of Tina whom he had met about 45 minutes previously. He knew that she used narcotics. He had been released from the county jail a few hours earlier that day. At the time of his release he had about thirteen dollars in change, and he went to Fifth Street to see if he could rent a room for seven or eight dollars. After he met Tina, they walked together on Stanford Street going toward Fifth Street. When they were about 20 feet from the alley, he saw four or five persons standing in the alley. Tina stopped to fix her stocking. When he and Tina were turning into the alley, the officers ran out, and Officer Cochran grabbed him by the arm and punched him in the stomach; and another officer handcuffed him and started to poke him as if he (officer) wanted him to ‘gag something out.’ After they had beaten him about ten minutes, one of the officers, who had gone onto the sidewalk, said he had found something. One officer said, ‘I found it.’ He (defendant) did not at any time put his hand under the hedge. He did not at any time say that the heroin, allegedly found in the alley, was his. He did not buy any narcotics from anyone on February 17. The woman did not give him any heroin, nor tell him that she had heroin on her person. He (defendant) had used narcotics in the past. Neither he nor Tina threw anything to the ground.

Officer Cochran testified further that he did not hit the defendant, and that he did not see either of the other officers hit him.

As above shown, Officer Cochran testified that at the time of the arrest of defendant and Albertina Rowland he had a conversation with her. He was then asked the following question: ‘Did you ask her if the narcotics that you allegedly found were hers?’ After he replied in the affirmative, counsel for defendant asked, ‘What did she say?’ The prosecution's objection, on the grounds of immateriality and hearsay, was sustained.

Appellant contends that the court erred in sustaining the objection. He argues to the effect that the answer to the question should have been received to prove that someone other than defendant had possession of the alleged narcotics, especially since the person (Albertina Rowland) was arrested at the same time defendant was arrested and she was a known narcotics user. He argues further that the answer would have been the arrestee's (Rowland's) declaration ‘against penal interest,’ and for that reason the answer should have been received. Appellant does state that the weight of authority in California as well as in most of the other states of the United States, and in England, is contrary to his position on this point. He argues, however, a modern minority view has been growing which supports to some extent a modification of the majority rule. In California an extra-judicial declaration against penal interest is not admissible as an exception to the hearsay rule. In People v. Hall, 94 Cal. 595, 599, 30 P. 7, 8, it was said: ‘The rule is settled beyond controversy that in a prosecution for crime, the declaration of another person that he committed the crime is not admissible. Proof of such declaration is mere hearsay evidence, and is always excluded, whether the person making it be dead or not.’ (See also People v. Collum, 122 Cal. 186, 187–188, 54 P. 589; People v. Raber, 168 Cal. 316, 319, 143 P. 317; People v. Woods, 90 Cal.App. 758, 759, 266 P. 361.) The declaration of Rowland is not admissible as a declaration against interest.

Appellant also argues that the declaration of Rowland should have been received as a part of the res gestae. This point was not made in the trial court, and of course the trial judge was not given an opportunity to exercise his discretion in ruling on the admissibility of evidence under the res gestae rule. Under such circumstances, this point should not be considered on appeal.

It is to be noted that the first ground for the objection was immateriality. The defendant was charged with unlawful possession of heroin. There was direct evidence that defendant Spriggs was in possession of narcotics. It was not necessary to prove ownership of the narcotics. There was no offer of proof as a basis for showing materiality. The objection was properly sustained on the ground of immateriality.

There was testimony by the officer, in response to a question by defendant, that at the time of trial he did not know the whereabouts of Rowland. It is to be noted that defendant did not call Rowland as a witness; nor make a showing that she was not available as a witness.

The evidence was sufficient to support the conviction. The court did not err in ruling as to the admissibility of evidence.

The judgment is affirmed.

WOOD, Presiding Justice.

LILLIE, J., concurs.

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