PEOPLE v. MILLUM (1953)

From a judgment of guilty of violating section 11500 of the Health and Safety Code, (possession of flowering tops and leaves of Indian Hemp), after trial before the court without a jury, defendant appeals. There is also a purported appeal from the sentence.

Facts: A government narcotic agent entered an apartment in a building located in the City of Los Angeles. He was admitted by a lady. In the bedroom of the apartment defendant was making a telephone call. In the closet of the bedroom, the agent found a suitcase which contained marijuana or Indian Hemp, and a shirt in the pocket of which there was a cigarette which official analysis disclosed also contained marijuana. After having denied that the property belonged to him, defendant was told he and the young lady in the house were going to be arrested, whereupon defendant stated with reference to the property ‘that it was all his' and that the lady had no knowledge of the marijuana's being there.

Questions: First: Was there substantial evidence to sustain the judgment?

Yes. Witnesses gave direct testimony of each of the facts set forth above which, being believed by the trial court, constitute substantial evidence to sustain the judgment. (See People v. Hoff, 84 Cal.App.2d 398, 400, 190 P.2d 616; People v. Van Valkenburg, 111 Cal.App.2d 337, 340 [lb], 244 P.2d 750.)

Second: Was defendant's admission with reference to the narcotic which the agent had located in defendant's room free and voluntary?

Yes, for two reasons: (1) the officer testified that defendant's admission was made freely and voluntarily and since the trial court found, supported by substantial evidence this was true, its finding is binding upon this court (Cf. People v. Castello, 194 Cal. 595, 600[2], 229 P. 855; People v. Sameniego, 118 Cal.App. 165, 169[3] et seq., 4 P.2d 809, 5 P.2d 653); (2) the testimony relative to the admission or confession was received without objection. Therefore defendant has waived any right to urge error upon the receipt thereof in evidence for the reason the law is settled that error may not be predicated upon the admission in evidence of incriminating admissions or confessions of a defendant, even though the admissions were made under circumstances indicating intimidation, where defendant makes no objection in the trial court to the introduction of any or all the testimony in question, and fails to make a motion to strike the alleged objectionable testimony from the record. (People v. Costa, 81 Cal.App. 309, 312[1], 253 P. 940.)

Third: Did the trial court commit prejudicial error in receiving in evidence an accusatory statement made to defendant?

No. Testimony was received that one of the officers stated to defendant they had information that he was selling marijuana; that he kept some at home; that they wanted to know something about it; and defendant denied knowing anything about it. Thereafter defendant admitted the marijuana which the officers found in his room was his. Defendant argues, citing People v. Simmons, 28 Cal.2d 699, 712[5], 172 P.2d 18, that since he denied the marijuana was his, there was no admission and nothing to be received in evidence. However, the foregoing rule is subject to this one, to wit, that unless an objection is made at the trial to the reception of allegedly improper evidence, objection is waived and may not be urged for the first time on appeal. (People v. Simmons, supra, 28 Cal.2d at page 723, 172 P.2d at page 31; People v. King, 114 Cal.App.2d 95, 104[5] et seq., 249 P.2d 563.)

In the present case defendant did not object to the alleged improper evidence. Therefore he has waived any right to urge such objection in this court.

Since an appeal does not lie from the sentence, the purported appeal therefrom is dismissed. (People v. Smith, 22 Cal.App.2d 209, 211[4], 70 P.2d 677. See cases cited 16 West's California Digest (1951), Criminal Law, k1023.10, p. 737.)

The judgment is affirmed.

McCOMB, Justice.

MOORE, P. J., and FOX, J., concur.