496 P.2d 735 | Or. Ct. App. | 1972
Defendant, tried by the court, appeals from a guilty finding on a charge of possession of marihuana and resulting sentence. Former ORS 474.020.
The defendant contends that there was insufficient evidence of possession by the defendant. The police had a. valid warrant for search for marihuana .of -the upstairs of the premises at 3914 SE Schiller Street, Portland, based upon officers seeing marihuana growing in pots at a window on September 2, 1971. Making the- search, they found only a Mr. Solomon on. the
When these were offered in evidence the court sustained defendant’s objection to them, apparently because the warrant did not require seizure of identification evidence. In doing so, the court stated it would consider the officer’s testimony about the addresses on some of the exhibits because there had been no objection to that testimony. The exhibits offered should have been received. State v. Garrett, 7 Or App 54, 489 P2d 994, Sup Ct review denied, (1971). On appeal, we will consider such erroneously excluded evidence for the support it may give to the ultimate findings of the trial court. State v. Sparrow, 4 Or App 345, 347-8, 478 P2d 660 (1971).
The trial court apparently concluded that the
People v. Antista, 129 Cal App 2d 47, 50, 276 P2d 177 (1954), relied upon by defendant, is not inconsistent with our conclusion that the conviction in the case at bar must be upheld. In that case, which is somewhat similar to the case at bar on its facts, the court said:
“* * * In all cases we have examined in which conviction was upheld there was some incriminating statement or circumstance in addition to the presence of marihuana * * * which indicated knowledge of the defendant of its presence and his control of it * * (Emphasis supplied.)
Such a circumstance existed in this case: The presence in one of the rooms of six clay pots containing 150 marihuana plants which necessarily had received care and attention to be growing, could hardly be there without the tenant’s knowledge. Prom that knowledge, and the evidence that defendant had for several preceding months been a tenant of the premises, the inference that defendant had control—which the trial court made—is valid. State v. Oare, 249 Or 597, 439 P2d 885 (1968).
Affirmed.