156 Cal. App. 2d 780 | Cal. Ct. App. | 1958
The defendant was convicted of the unlawful possession of heroin. (Health & Saf. Code, § 11500.) An allegation of a prior conviction for the same offense was found to be true. He has appealed from the judgment.
At about 12:15 p. m. on October 8, 1956, Deputy Sheriff Robert Nichols received information from a confidential informant that a narcotics party was in progress at 816 North Cordova, East Los Angeles. Deputy Nichols had received information from the same informant once before, the information resulting in the arrest and conviction of two narcotics addicts. Deputy Nichols proceeded to the above address accompanied by Deputy Wilson, Deputy Stoops and Sergeant Cook. The officers arrived at about 3:15 p. m. and went directly into the back yard. Upon entering the back yard Nichols observed defendant kneeling on the ground near an old cushion from a couch. Three other men were near defendant, two standing and the third leaning against an automobile. Deputy Nichols approached defendant and began to question him concerning narcotics. Nichols also examined defendant’s wrists and arms, and observed fresh puncture wounds upon both hands. He then arrested defendant for suspicion of violating section 11500, Health and Safety Code.
Deputy Wilson turned over the cushion lying on the ground near defendant and Deputy Nichols observed a rubber finger stall in the dirt. Wilson picked it up and, in the presence of Deputies Nichols and Stoops and Sergeant Cook, questioned defendant about it. In reply to one of the questions defendant stated, ‘‘ That junk is mine. ’ ’ The officer then asked defendant how much was in it and defendant replied, ‘ ‘ 15 caps. ’ ’ Deputy Nichols emptied the contents of the finger stall and counted 15 capsules which were later found to contain heroin.
At the trial defendant testified that the marks on his right hand were from a tattoo. He denied seeing any heroin and denied telling the officers that the “junk” was his or that the finger stall contained 15 capsules.
Defendant’s initial contention is that the statements he made to the ofSeers constituted a confession and that the trial court erred in receiving it into evidence because the prosecution had failed to lay an adequate foundation for its admission. Assuming, arguendo, that the statements did constitute a confession, defendant’s contention is nevertheless without merit. In People v. Byrd, 42 Cal.2d 200 [266 P.2d 505], the defendant contended that recordings of certain
Defendant also argues that there is no showing that his statements were made “without previous inducement and that neither duress nor intimidation caused the defendant to furnish such evidence against himself.” In other words, it is the defendant’s contention that the absence of previous inducement and duress is not included within the meaning of the phrase “free and voluntary” and that such absence must be shown in order for a proper foundation to be laid for the introduction of a confession. It is clear, however, that the absence of inducement and duress is included within the meaning of the words “free and voluntary.” In People v. Siemsen, 153 Cal. 387, 394 [95 P. 863], the court observed that “a confession, in order to be admissible, must be free
There is likewise no merit in defendant’s contention that the trial court erred in admitting Deputy Nichols’ testimony concerning the voluntary character of defendant’s statements because such testimony amounted to a conclusion of the witness. A statement by a witness that a confession was made “freely and voluntarily” is not objectionable as a conclusion of the witness. (People v. Goldenson, 76 Cal. 328, 350 [19 P. 161]; see also annot., 114 A.L.R. 974.) In People v. Berg, 96 Cal.App. 430, 441 [274 P. 433], the court stated: “A statement made by appellant in the form of question and answer, taken down in shorthand and transcribed before the trial, was exhibited to a witness who had heard the questions asked and answered, and he was asked whether the answers were ‘free and voluntary.’ The question was objected to on the ground that it called for a conclusion of the witness, and the same point is now made here. The objection was not good. It is the constant and proper practice to ask such a question as a part of the foundation for the reception in evidence of confessions made by those charged with crime, although technically it does call for the statement of a conclusion. The recognized practice, after such a question is answered in the affirmative, is for the defendant to show, by a cross-examination which he may at once conduct, the entire circumstances surrounding the making of the confession.” Deputy Nichols’ testimony was therefore properly considered by the court.
The judgment is affirmed.
Ashburn, J., and Kincaid, J. pro tem.,
Assigned by Chairman of Judicial Council.