PEOPLE v. ONE 1933 PLYMOUTH SEDAN DE LUXE AUTOMOBILE ENGINE NO PD165124 (1938)

From a judgment refusing to declare the above-mentioned automobile forfeited under the provisions of the State Narcotic Act (ch. 216, Stats.1929, p. 380, and the several statutes amendatory thereof), the state has appealed and has brought up the judgment roll.

The State contends that the findings do not support the judgment. It asserts that the owner of the automobile was bound to plead and prove “* that the automobile or other vehicle was not in fact used or intended to be used to conceal, convey, carry or transport any of the drugs mentioned in section 1 of this act, or that said drugs were not unlawfully possessed by an occupant of said automobile *”. Subd. (e), sec. 15, St.1935, p. 2210. It then quotes finding number II as follows: “That it is true that said Plymouth automobile was used in the City and County of San Francisco, State of California, on or about the 12th day of August, 1937, to unlawfully conceal, convey, carry and transport narcotics contrary to the force and effect of section 15 of the State Narcotic Act.” Continuing it calls attention to the fact that there was no finding “that said drugs were not unlawfully possessed by an occupant of said automobile or other vehicle”. It concedes that the trial court made finding number III as follows: “That it is true the said Caroline Sarubbi consented to and gave permission to her son, William Sarubbi, to use said Plymouth Sedan automobile on the 12th day of August, 1937, but that at said time she did not know that said automobile was to be used for the unlawful transportation of narcotics and did not give her permission to her son, William Sarubbi, to use said automobile for said purpose, nor did she at the time that she gave permission to her son to use said car intend that it should be used to unlawfully transport narcotics. But in that connection it contends said last-mentioned finding is immaterial. Van Oster v. Kansas, 272 U.S. 465, 47 S.Ct. 133, 71 L.Ed. 354, 47 A.L.R. 1044. These contentions, unless met by the owner, must be sustained. But the latter replies that the State's pleading was wholly insufficient. The State does not attempt to sustain its pleading but on the record as presented it contends that the owner may not now for the first time present that contention. Ransome–Crummey Co. v. Bennett, 177 Cal. 560, 565, 171 P. 304. That contention is supported by the authority cited and by several other cases. Therefore this court may not properly, and it does not, express any opinion on the sufficiency of the state's pleading.

Pending the hearings in this court each party has filed many briefs and each has made several arguments. At the time of the last hearing the owner contended that this is a special proceeding purely and exclusively statutory and not according to the course of the common law and therefore the State's pleading did not allege jurisdictional facts. But there was not a total failure to allege such facts and therefore the point may not be sustained when made for the first time on appeal. 3 C.J. 785–787.

The judgment appealed from is reversed.

STURTEVANT, Justice.

We concur: NOURSE, P.J.; SPENCE, J.