PEOPLE v. TAYLOR (1958)

In an indictment returned by the Grand Jury of Los Angeles County, defendant and one Cecil Scott were accused of a violation of Section 11500 of the Health and Safety Code, in that they, on or about July 17, 1957, did unlawfully sell, furnish and give away a preparation of heroin. A prior conviction of defendant was also alleged, but this allegation was stricken at the time judgment was pronounced, at which time the court stated: ‘The Court will strike the prior in the interest of justice as the Court feels that the Board of Trustees of the California Institute for Women will have ample latitude to determine the length of stay of the defendant.’

On September 20, 1957, the indictment was amended to show the true name of defendant as ‘Dorothy Lorraine Taylor’. On September 25, 1957, upon being advised by the district attorney that Dorothy Lorraine Taylor, the person then before the court, was not the Lorraine Taylor named in the indictment, the court ordered the indictment dismissed as to Dorothy Lorraine Taylor only, and ordered that the indictment be amended to show the true name of the accused as Lorraine Taylor. An alias bench warrant was issued for the arrest of the latter. Subsequently, the record was amended to show the correct spelling of defendant's first name as ‘Laurine’. On January 2, 1958, defendant entered a plea of not guilty and denied the prior conviction of a felony charged against her.

Trial by jury having been duly waived the cause proceeded to trial before the court on February 11, 1958. At that time defendant made a motion to dismiss the cause under Penal Code, Section 1382 and the court denied the motion. This matter was urged again on motion for new trial.

After hearing all the evidence, the court found the defendant guilty as charged in the indictment. Her motion for a new trial was denied. Defendant's application for probation was denied and she was sentenced to state prison.

From the judgment of conviction and the denial of her motion for a new trial defendant prosecutes this appeal.

The factual background of this prosecution as revealed by the record shows that about 2 o'clock on the afternoon of July 17, 1957, Police Officer Sam Hunter and Policewoman Pettigrew of the Los Angeles Police Department, were sitting in an automobile in a parking lot at the corner of Adams Boulevard and Normandie Avenue in the city of Los Angeles. At that time one Cecil Scott came up to the vehicle and the officers had a ten or fifteen minute conversation with him. During this conversation Officer Hunter gave Scott $10. Scott then waved to defendant and she came up to the car where Scott introduced her as his good friend to the police officers. Scott then ‘mumbled’ something to defendant and the latter opened her red handbag and removed therefrom a white paper bindle and gave it to Scott who immediately gave it to Officer Hunter.

After receiving the bindle the officers went directly to the Police building where Hunter initialed the bindle, put it into a small brown envelope and sealed it, put this into a larger brown envelope and sealed it with red sealing wax, affixing his thumb print in the sealing wax. These envelopes, the paper bindle and its contents, were received into evidence. Officer Hunter identified the paper bindle as the same bindle which defendant gave to Scott and the latter gave to him.

James H. Carter, a Los Angeles city police officer, assigned to the Scientific Investigation Division, and a qualified expert in the field of chemistry, testified that from his analysis, the contents of the foregoing paper bindle contained a narcotic known as heroin.

Officer Hunter was in the presence of defendant for about 25 or 30 minutes on July 17, 1957, and had a good opportunity to ‘look her over’. He positively identified defendant at the trial as the female participant in the above transaction.

While admitting she was well acquainted with Cecil Scott as of July, 1957, and that she saw him ‘every day’, defendant, as a witness in her own behalf, denied having seen Officer Hunter at any time prior to the trial, and in answer to the question, ‘And on the date of July 17, 1957 do you ever recall any transaction involving this gentleman and another man by the name of Scott and an officer by the name of Pettigrew?‘ she replied, ‘No, sir.’

Appellant first contends that the court erred in denying her motions made at the commencement of the trial and on her motion for a new trial to dismiss the action pursuant to the provisions of Section 1382, subd. 2, of the Penal Code. Insofar as here pertinent, the cited section reads:

‘The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases * * *.

‘2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial in a superior court within 60 days after the finding of the indictment * * *’.

Conceding, as urged by appellant that the burden was upon the prosecution to show good cause for holding an accused without trial for a longer time than that named in Penal Code, Section 1382, and that in the absence of such showing the court had no discretion in the matter, but was imperatively required to grant a defendant's motion nevertheless, the rule is well settled, that on appeal all intendments are in favor of the regularity of the action of the court below. Error is never presumed, but must affirmatively appear (People v. Douglass, 100 Cal. 1, 4, 34 P. 490; People v. Hocking, 140 Cal.App.2d 778, 783, 296 P.2d 59.)

Accordingly, since there is a presumption that good cause existed for the delay herein, and the burden is on the appellant to show that the court abused its discretion in denying appellant's motion, we are satisfied that no affirmative showing of error was made.

The record herein shows that no objection was interposed by appellant when she was arraigned or when, after entry of her plea, the trial date was set for February 11, 1958. When a defendant fails to object at the time the cause is set for trial beyond the statutory period, consent is presumed (Ray v. Superior Court, 208 Cal. 357, 358, 281 P. 391).

Appellant relies heavily upon the case of Wilson v. Superior Court, 125 Cal.App.2d 749, 750, 271 P.2d 156. This case is easily distinguishable from the case at bar. In the cited case there was no showing whatsoever of any effort to apprehend the defendant for a period of more than one year after the return of the indictment. When he was finally brought before the court he insistently objected to continuance of his trial beyond the 60-day period specified in Section 1382 of the Penal Code. And, as stated by the court (125 Cal.App.2d at page 750, 271 P.2d at page 156), the accused affirmatively showed that, ‘* * * prior to the indictment, he had established a residence in the City of Hollywood in Los Angeles County and had on August 29, 1952, so notified the department of Motor Vehicles in Sacramento giving the number of his driver's license; that he has been continuously in business at that address under a partnership wherein his partner conducted his share of the business at an address in Oakland. That these addresses were publicized and that no effort was made to conceal them. He also showed that in the fall of 1953 he announced his candidacy for the governorship of California and that wide publicity had been given of that fact.’

In the case at bar, the fact that another person with a very similar name was brought in eight days after the indictment was returned, that this person was subsequently arraigned and released, and that thereupon a bench warrant was issued for the true defendant who was apprehended on the warrant some time in December, shows that an effort was definitely being made to apprehend and arraign the defendant. Under the facts and circumstances here present no abuse of discretion appears in the denial of appellant's motion to dismiss the action.

Appellant's next contention is that the trial court erred in the admission of testimony by Officer Hunter that he paid $10 to Scott at the time of the transaction here in question. It is appellant's claim that Officer Hunter's testimony that he gave $10 to Scott is hearsay because his act in handing over the money took place outside her presence, and, therefore, appellant is in no position to refute such testimony.

Appellant asserts that hearsay evidence ‘may consist of non-verbal conduct’, and in support of this claim cites McBaine California Evidence Manual, wherein, at p. 311, Section 224, it is said: ‘The conduct of an individual is hearsay if it is intended by him or assumed to have been intended by him, to operate as an assertion of a proposition, and it is offered in evidence to prove the truth of the matter asserted, or assumed to have been intended.’

However, the very essence of the hearsay rule is a requirement that the veracity of the witness and his testimonial assertions shall be subjected to the test of cross-examination under oath (Buchanan v. Nye, 128 Cal.App.2d 582, 585, 275 P.2d 767). In the instant case this requirement was met. The conversation between the witness and Cecil Scott was properly excluded by the court. The testimony which was given related only to an act which the witness himself performed, and of which he had firsthand knowledge. Appellant therefore had the opportunity, and exercised it, to cross-examine the witness, which she did at some length.

Furthermore, as was said in People v. Henry, 86 Cal.App.2d 785, 789, 195 P.2d 478, 480, ‘There is a well established exception or departure from the hearsay rule applying to cases in which the very fact in controversy is whether certain things were said or done and not as to whether these things were true or false, and in these cases the words or acts are admissible not as hearsay, but as original evidence. (Citing cases.)’

As pointed out by respondent, ‘Since witness Hunter's testimony related to an act which he himself did, since the act related to a fact in controversy (whether there was a sale), and since he was subject to cross-examination, there was no error in admitting this testimony.’

Finally, appellant earnestly insists that the evidence was insufficient as a matter of law to sustain her conviction. In this regard she contends that, ‘At the most the evidence shows that the defendant had heroin in her possession and that she furnished it to her co-defendant Cecil Scott. There is absolutely no evidence to show that defendant knew or had reason to know of Scott's transaction with Officers Hunter and Pettigrew, or that she in any manner conspired with Scott to sell heroin to the police officers or participated in the alleged transaction.

‘For aught that appears in the record the defendant might merely have been holding the heroin for Scott and returned it to him at his request.’

However, appellant overlooks the fact that the indictment charged her with selling, furnishing and giving away a preparation of heroin. Therefore, the crime charged was proven if it was established beyond a reasonable doubt that she either furnished or gave away the narcotic, though no proof of a sale thereof was established. However, we are satisfied that the evidence is sufficient to prove that appellant not only furnished or gave away the contraband, but also, that she participated in a sale thereof.

Penal Code, Section 31, classifies as principals in the commission of a crime, ‘All persons concerned in the commission of a crime * * * and whether they directly commit the act constituting the offense, or aid and abet in its commission * * *’.

It is not necessary that the buyer deal directly with the seller. The fact that the parties deal with each other through a third party does not invalidate a conviction. In People v. Bradford, 130 Cal.App.2d 606, 608, 279 P.2d 561, 563, a conviction for selling narcotics was sustained though the evidence showed, ‘* * * that upon the occasion of each sale the officer contacted the defendant through an unnamed informer, through whom the officer paid the money to defendant and to whom defendant delivered the heroin.’

The evidence in the case at bar is much stronger than that in the case just cited. The record herein shows that the identity of the go-between Cecil Scott was well known to appellant who so testified, saying, ‘I saw him every day’. Practically every element of the transaction occurred in the immediate presence of appellant. The record reflects that she removed the heroin from her handbag, handed it to Scott, and the latter immediately delivered it to the officer in the presence of appellant. The officer had just previously given Scott $10 in payment for the heroin. These circumstances reasonably allow an inference to be drawn therefrom that the appellant was the seller, the officer the buyer, and that Scott acted as a go-between, or that appellant and Scott were co-participants in a sale of heroin to Officer Hunter. Under the rule announced in People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778, we cannot say that the facts in the case now engaging our attention are not sufficient to support the decision rendered in the court below.

The judgment and the order denying defendant's motion for a new trial are, and each is affirmed.

WHITE, Presiding Justice.

FOURT and LILLIE, JJ., concur.