THE PEOPLE, Respondent, v. HANNAH WARREN et al., Defendants; GENERAL BELL, Appellant.
Crim. No. 6265
Second Dist., Div. One.
Aug. 25, 1958
163 Cal.App.2d 136
Edmund G. Brown, Attorney General, and William E. James, Deputy Attorney General, for Respondent.
The information also alleged that before the commission of the offenses charged against him, appellant had been convicted of two prior felonies and served terms of imprisonment in the state prison. The first prior felony alleged was the crime of burglary and possession of marijuana with judgment rendered in the District Court of the State of Texas, on or about March 30, 1950; the other for the crime of possession of marijuana with judgment rendered by the District Court of the State of Texas on or about June 19, 1952.
To the offenses charged against him in Counts I and IV, appellant pleaded not guilty. Trial by jury was duly waived and by stipulation the cause was submitted on the transcript of the testimony adduced at the preliminary examination, each side reserving the right to offer additional evidence.
Following a reading of the aforesaid transcript and consideration of additional testimony offered at the trial, the court adjudged appellant guilty as charged in Count I and not guilty on Count IV. No finding was made on the prior felony convictions as alleged. Probation was denied and appellant was sentenced to state prison. From the judgment of conviction he prosecutes this appeal.
The following will serve as a fair epitome of the factual background surrounding this prosecution. There was evi-
Approximately one hour later Burley and the confidential informant returned to Warren‘s residence and for the first time met appellant as he was leaving. Appellant asked them if they had the “stuff” (meaning heroin). They told him “No” that they had been trying to “pick up” (meaning to purchase or obtain narcotics). Appellant stated he had a “connection” (meaning a person from whom one gets his heroin), that lived near 94th and San Pedro and would be willing to take them to that location.
They entered defendant Warren‘s residence and told the latter that her “connection” was going to be too long and they would try to “score” (meaning to purchase) with appellant Bell. Defendant Warren asked if she could hold the money and in the meantime if her “connection” should call she would be able to “score.” Burley let defendant Warren hold $15.
Burley, the informant, and appellant entered the latter‘s car and drove to the vicinity of 94th and Broadway. Appellant took $20 and left the automobile saying he had to make a phone call. He returned and said his “connection” was not home. Appellant gave back the $20 and no sale took place. They then returned to defendant Warren‘s residence. Some person called Mrs. Warren from next door and when she returned Mrs. Warren stated she had made contact with her “connection” and they were to meet her “connection” at 56th and McKinley. Appellant asked defendant Warren if he could accompany them to the location because he wanted to “score” himself. Appellant stated he would drive them over in his automobile.
Defendant Warren and her little girl, the confidential informant, Burley and appellant entered appellant‘s vehicle and drove to the vicinity of 56th and McKinley. Defendant Warren then left the car and Burley observed a brown Studebaker driven by a male Negro. Appellant stated that this was Mrs. Warren‘s “connection” and he had seen him on several occasions. Defendant Warren returned and appellant asked her “did she pick up.” Defendant Warren said “Yes” that everything was “straight.”
The parties in appellant‘s car returned to 2043 East 115th
Appellant and his codefendant Hannah Warren testified for the defense. Their testimony may be summarized as follows: On the evening here in question, appellant was at defendant Warren‘s residence. As the former was leaving the house, Officer Burley and the confidential informant, Maggie Magee, approached. The latter asked appellant if he would “drive her down 94th and Broadway.” Appellant responded in the affirmative but that they would have to put gas in his automobile. When they were approaching Broadway, Maggie Magee told Officer Burley it “didn‘t look like anyone was home.” Appellant said he would have to make a phone call before he took them back. He called a friend who wanted appellant to get him a job where appellant was working. The phone call was not in connection with the purchase of narcotics. At no time during this trip was there any discussion of narcotics. Maggie Magee gave appellant a dollar for taking her over to 94th Street.
Later on the same evening Mrs. Warren, Officer Burley, Maggie Magee and appellant went on a second trip in appellant‘s car with the latter driving. Defendant Warren had asked appellant if he would take her to some market that was open. Appellant didn‘t know why Officer Burley and Maggie Magee happened to go along; he thought maybe they were friends. Appellant got no money for this trip as he was doing Mrs. Warren a favor. There was no discussion of narcotics before this trip started nor anytime during the trip. Appellant did not at any time ask Maggie Magee or defendant Hannah Warren if “she had picked up“; nor at any time did appellant offer to sell narcotics to Officer Burley and Maggie Magee. Appellant did not see Mrs. Warren get out of the car and go to a Studebaker nor did he say “that is her connection.” Appellant did not know at any time that he was transporting narcotics. After the trip they went back to
As his first ground for reversal of the judgment appellant urges that since Count I of the information involved the same facts and allegations as contained in Count I of the complaint filed in the municipal court, and which was dismissed by the committing magistrate, the trial court was without jurisdiction and therefore erred in finding him guilty on Count I of the information. In this contention appellant cannot be sustained. While appellant appears in propria persona on this appeal, he was represented by counsel at both the preliminary examination and his trial in the court below. Any objection appellant had to Count I of the information in that he was not legally committed by a magistrate or had been committed without probable cause has been waived because of his failure in the trial court, to move to set aside the information pursuant to the provisions of
“1. That before the filing thereof the defendant has not been legally committed by a magistrate.
“2. That the defendant has been committed without reasonable or probable cause.”
This is followed by
“If the motion to set aside the indictment or information is not made, the defendant is precluded from afterwards taking the objections mentioned in the last section.” (Emphasis added.)
Manifestly, such motion under
There is however, a further reason why appellant‘s contention that he was illegally convicted under Count I of the information cannot be sustained. At the conclusion of the preliminary examination, the committing magistrate dismissed Count I of the complaint filed in the municipal court, which charged appellant with selling, furnishing and giving
The only requirement would seem to be that the additional charge filed by the district attorney arise out of the same transaction as the one for which the accused is held to answer (Parks v. Superior Court, supra, pp. 613, 614). To us it seems quite clear that in the case at bar, the charge of transportation of narcotics on November 18, 1957, in Count IV of the municipal court complaint upon which appellant was held to answer is related to
For the foregoing reasons, the judgment is affirmed.
Lillie, J., concurred.
FOURT, J.—I concur in the judgment. The record in this case indicates that it is but another of the long number of cases arising in Los Angeles County where there has been a miscarriage of justice in the administration of the statutes and laws pertaining to narcotics.
The appellant in this instance was charged with two prior convictions, the first of which had to do with burglary and narcotics, and the second of which had to do with narcotics. It was charged in the information that each of these prior offenses occurred in the State of Texas, and that appellant served a separate term in the state prison in the State of Texas for each of said offenses.
The district attorney offered, and there was received into evidence, documents which, without question, and without objection, clearly showed that the appellant had been so convicted and had served such terms in prison. It was stipulated that the person named in the documents was the appellant. It was then stipulated by the prosecution and the appellant, in effect, that the judge could determine the truth or falsity of the charges with reference to the prior convictions. The question was put “Do you want this judge to determine these priors?” and the appellant answered, “Yes.”
The appellant took the witness stand and testified in his own behalf and admitted, with no hesitancy, that he had been so convicted of such felonies and that he had served terms in prison therefor. Even the attorney for the appellant, in pleading his cause to the court, said, “He has never, so far as I can see, had the opportunity to be placed on probation.
The judge then proceeded to ignore the fact of the priors and the terms served therefor, made no findings thereon, and sentenced the appellant as a first offender.
There is, so far as I can find, no excuse whatsoever for such a course other than to thwart the legislative intention, and the clear wording of the statutes made and provided in such instances, and to give an ex-convict who has twice been convicted of narcotic offenses the advantage of being sentenced as a first offender. Such a course brings the administration of criminal justice into disrepute, unnecessarily breeds serious problems and is grossly unfair to the defendants who are properly sentenced and are serving terms in the state prison as recidivists. (See
It is not readily ascertainable from the record just why the district attorney did not, at least, ask the judge to make a finding with reference to the priors, even if he, the district attorney, assumed that the judge might, notwithstanding the uncontradicted evidence, find that it was not true that the appellant was previously convicted as alleged. At least there might have been a determination.
* A hearing was granted by the Supreme Court on June 4, 1958. The final opinion of that court is reported in 50 Cal.2d 688 [328 P.2d 973].