PEOPLE v. GORY (1945)

Defendant was charged in an information containing two counts with (1) unlawfully taking marijuana into a prison farm in violation of section 4573 of the Penal Code, and (2) the unlawful possession of flowering tops and leaves of Indian Hemp (cannabis sativa), in violation of section 11160, Health and Safety Code, St.1941, p. 2820. He was also charged with a prior conviction of felony, i.e., grand theft. Defendant admitted the prior conviction, and moved to dismiss count 1 of the information, which was granted. The jury found defendant guilty of the crime charged in count 2 of the information, the unlawful possession of cannabis sativa. From the judgment which followed, defendant has perfected this appeal, and he also appeals from the order by which his motion for a new trial was denied.

The record discloses that at the time of the alleged possession of marijuana, appellant was a prisoner at the Los Angeles County Honor Farm near Castaic, and with thirty some odd prisoners occupied one of the camp's bunk-houses or barracks, to which he had been assigned in April of 1944. As part of the equipment issued to each prisoner appellant received a metal box 8 inches deep, about 18 inches long, approximately a foot wide, in which to keep his toilet articles and small personal effects. There was no way of locking these boxes, each of which bore a number corresponding to the bed number of the space occupied by the particular prisoner. The boxes were placed on the floor at the head of each bed, and during the day when the prisoners were engaged in their duties on the farm, one man was selected from the personnel to stay in the bunk-house to ‘keep the inmates from monkeying with other people's property.’

Officer Gunderson entered the bunkhouse at 9:30 p.m. on June 2, 1944, and while several officers who accompanied him searched the boxes of other prisoners in the bunk-house, he went to appellant's bed on which the latter was lying, and picking up the metal box bearing the number of appellant's bed, he opened the box and found marijuana ‘scattered from the top down to the bottom * * * just loose in the box.’ Said officer took off appellant's clothes and examined them, turning the pockets inside out, but found no marijuana either on his person or in his clothes. Deputy Sheriff Huber, who was present at the time, testified that he asked appellant what he knew about this marijuana, stating: ‘This is your marijuana; where did you get it?’ and that appellant did not answer. Appellant admitted in his own testimony that the material which the officers identified as marijuana was taken from his box, but stated that he had never seen it before the officers removed it from the box.

Appellant bases this appeal upon six points which enumerate the grounds upon which he relies for a reversal of the judgment of conviction.

In points I and II, he complains of error on the part of the trial court in reading, rereading and then expressly withdrawing from the jury's consideration an instruction, hereinafter referred to as ‘instruction 12’, to-wit: ‘In order for defendant to have in his possession the objects charged in the information, you must be convinced by the evidence and beyond a reasonable doubt that he knowingly had such objects in his possession. The meaning of the word ‘possession’ includes the exercise of dominion and control over the thing possessed.' Appellant urges that by such erroneous action the trial court effectively removed from the consideration of the jury the right to determine whether he had any knowledge of the presence in the box of the contraband substance; and was equivalent to a declaration that any object found among his effects was conclusively presumed to be there of his own knowledge. Moreover, ‘without the element of knowledge there can be no ‘possession’ as the word is used in defining the offense of which this defendant was convicted, and that the trial court denied to the defendant the right to urge as a defense that element which is basic in any charge of possession of narcotics.'

In points III and IV, appellant specifies error in the reading, rereading and express withdrawal by the trial court from the jury's consideration an instruction, hereinafter referred to as ‘instruction 13’, to-wit: ‘Even if you find from the evidence beyond a reasonable doubt that the defendant had in his possession, flowering tops of Indian Hemp or loco-weed, before you can find the defendant guilty of possessing the same, you must also be convinced beyond a reasonable doubt that the defendant had a guilty knowledge of the character of said flowering tops of Indian Hemp and possessed a guilty intent. If you find that the defendant was innocent of the knowledge of the character of the flowering tops of Indian Hemp or did not have a guilty knowledge of possessing said flowering tops of Indian Hemp, then you will find the defendant not guilty and must acquit him.’ Appellant contends that by reading the refused instruction to the jury, later rereading it, and then withdrawing it from their consideration with the admonition that they were to disregard it, the trial court removed from the jury the right to determine whether or not the defendant knew the object was marijuana.

To clarify his position with respect to the two instructions numbered 12 and 13, appellant states: ‘Whereas the first two points were directed to ‘knowledge’ of the existence of the object as a prerequisite to the ‘dominion and control’ necessary to constitute possession, Points III and IV are directed to ‘knowledge’ as applied to the character of the object as being a prohibited poison.'

Respondent argues that instruction numbered 9 which was given to the jury fulfills all requirements of the law and constitutes a proper instruction on the question of possession: ‘Possession of narcotics as charged in the information means an immediate and exclusive possession and that such narcotics were under the dominion and control of the defendant.’ Also, that the term ‘wilfully’ as used in instruction numbered 15, which was given to the jury, unquestionably invokes the element of knowledge, to-wit: ‘If you believe beyond a reasonable doubt that the defendant, on or about the 2nd day of June, 1944, at and in the County of Los Angeles, State of California, did wilfully, unlawfully and feloniously have in his possession flowering tops and leaves of Indian Hemp (marijuana), as charged in the information you should find the defendant guilty as charged.’ In this connection respondent contends that ‘it must necessarily and inevitably follow that if he (appellant) wilfully had marijuana in his possession, he knew what the substance was which he possessed.’

It appears that in those cases wherein the courts have stated that neither intent nor knowledge is an element of the offense of possession of narcotics and that ‘mere possession’ is a violation of the statute, People v. Randolph, 133 Cal.App. 192, 196, 23 P.2d 777; People v. Johnson, 66 Cal.App.2d 164, 165, 152 P.2d 331; People v. Sweeney, 66 Cal.App.2d 855, 859, 153 P.2d 371, the evidence adduced therein presented sufficient facts and circumstances which conclusively established the guilty knowledge of the particular defendant. Such evidence usually included admissions and statements made by the defendant with respect to possession of such narcotics, which supplied the final link in the chain of circumstances connecting defendant with the offense charged against him. Moreover, in many instances, possession of drugs has been inferred from testimony that the defendant threw the drug out of the window, or otherwise disposed of it upon the approach of the arresting officers, and that it was later retrieved and identified as having been in the custody and under the control of defendant prior to his arrest. People v. Rodrigues, 25 Cal.App.2d 393, 394, 77 P.2d 503; People v. Belli, 127 Cal.App. 269, 15 P.2d 809.

In the instant cause, the record is devoid of any evidence connecting appellant with the offense of possession of marijuana, except that the box assigned to him contained loose pieces of the drug scattered from top to bottom thereof and intermingled with his shaving material, tooth powder and other small articles. The box was incapable of being locked and stood open and accessible to any one passing through the barracks. Appellant denied that he had ever seen the ‘stuff’ until the officers took it out of his box and told him what it was. At no time did he make any statements or admissions with respect to the marijuana found in his box, and when Officer Huber confronted him with it saying: ‘This is your marijuana; where did you get it?’ appellant made no reply. Moreover, there is no evidence that appellant was, or ever had been, addicted to the use of narcotics. Taken as a whole, the evidence produced by the prosecution herein raises only a suspicion of guilt.

In People v. Bassett, 68 Cal.App.2d 241, 156 P.2d 457, 460, this court in reviewing a judgment of conviction for possession of narcotics, held as follows: “Possession' of a chattel is established when it is shown that a person has physical control thereof with the intent to exercise such control, or having had such physical control, has not abandoned it and no other person has that possession. (Rest. Torts, sec. 216). The statute does not require ‘proof of possession’ at the very time of arrest, People v. Belli, 127 Cal.App. 269, 271, 15 P.2d 809, nor is it necessary to prove that the accused had the unlawful article on his person, People v. Sinclair, 129 Cal.App. 320, 322, 19 P.2d 23. The question therefore arises, does the evidence in the case before us establish the fact that ‘possession’ of the narcotics was immediate and exclusive and under the dominion and control of appellant.'

In Matter of Yun Quong, 159 Cal. 508, 514, 114, P. 835, 838, Ann.Cas.1912C, 969, a proceeding in habeas corpus presented to the Supreme Court in 1911, it was stated: ‘There is no merit in the argument that the statute (Poison law, amendment of 1909) is unreasonable, and therefore void, because it is possible for one to have the possession of opium innocently and without knowledge. The act clearly means a conscious and voluntary possession. Ex parte McClain [134 Cal. 110, 66 P. 69, 54 L.R.A. 779, 86 Am.St.Rep. 243].’

In People v. Herbert, 59 Cal.App. 158, 159, 210 P. 276, 277, the court ‘instructed the jury in effect that the burden of proving possession of the narcotics as alleged in the information rested upon the prosecution, and such possession must have been an immediate and exclusive possession and one under the dominion and control of defendant. The instructions given by the court fully and correctly stated the law upon the subject.’ In the last-cited case, it was held that the evidence therein presented, which included admissions by defendant, was sufficient to connect defendant with the possession of the narcotics.

In People v. Gallagher, 12 Cal.App.2d 434, 55 P.2d 889, the appellant argued that the evidence was insufficient to show possession within the meaning of the law, as such possession must be personal and exclusively under the dominion and control of the person charged. In answer to this contention the court stated, 12 Cal.App.2d at page 436, 55 P.2d at page 890: ‘It has been frequently held in this state that the possession denounced by the act need not be a personal one, it being sufficient if such possession is constructive, so long as it is immediate and exclusive and under the dominion and control of the violator. People v. Sinclair, 129 Cal.App. 320, 19 P.2d 23; People v. Torres, 5 Cal.App.2d 580, 43 P.2d 374. Here * * * there is evidence to show that appellant directed the officers to the place where he had the narcotics concealed and gave them the keys to obtain entrance to the premises. There is also evidence that appellant admitted the morphine contained in the room was his. This evidence is amply sufficient to support the verdict.’

In the instant cause, the record discloses that such possession as appellant had of the marijuana found in his box was neither exclusive nor under his dominion or control. The box was furnished by and was under the absolute control of the prison camp authorities. They had access to it at all times and at any time could have prevented appellant from even looking into it, and during his absence from the barracks, the box was under the sole and exclusive custody and control of such authorities.

In the recent case of People v. Gin Shue, 58 Cal.App.2d 625, 628, 137 P.2d 742, 745, the court recognized the necessity of proving that the defendant had knowledge of the presence of the narcotics when it declared: ‘On this evidence, on proper instructions of the trial court, there was submitted to the jury the question as to whether appellant had knowledge of the contents of the valise while it was in his possession.’

That it is necessary to prove that a defendant knowingly possessed narcotics was also approved in People v. Gibson, 64 Cal.App.2d 537, 539, 149 P.2d 25, 26, where the court declared: ‘Guilty knowledge and intent to violate the law may be shown by the facts and circumstances of the case, including the conduct of the defendant and any false or misleading statements which he may make to the arresting officers or others with relation to the material facts.’

In accordance with the foregoing, it would appear that guilty knowledge is an essential element of the crime with which appellant was charged, and that the withdrawal from the consideration of the jury of the two instructions, hereinbefore referred to, amounted to a miscarriage of justice.

For the reasons stated, the judgment and order appealed from are, and each of them is, reversed.

YORK, Presiding Justice.

DORAN and WHITE, JJ., concur.