( People v. Redrick, 55 Cal.2d 282, 285 [ 10 Cal.Rptr. 823, 359 P.2d 255]; People v. Winston, 46 Cal.2d 151, 160 [ 293 P.2d 40].) [7] Proof may be made by circumstantial evidence as well as direct. ( People v. Estrada, 185 Cal.App.2d 435, 437-438 [ 8 Cal.Rptr. 308]; People v. Williams, 202 Cal.App.2d 387, 392, 395 [ 20 Cal.Rptr. 740].) [5b] What sort of trouble was it that Mrs. Bost wanted to keep Hunter from getting into when she took half of his cigarettes from him? Ordinary cigarettes made with tobacco are not illegal, and no one could possibly be a law breaker for possessing a half-pack of cigarettes. Of course, possession of marijuana cigarettes could get Hunter into trouble, and an inference may be drawn from this testimony that Mrs. Bost knew that they were marijuana cigarettes.
This is particularly true when, as in the present case, the prosecutor has told the jury that his statements to them are not considered to be evidence. (See People v. Williams, 202 Cal.App.2d 387, 397 [ 20 Cal.Rptr. 740] .) The prosecution's failure to interview Smith prior to the time of the opening statement does not show bad faith, since the prosecution had a right to assume that Smith's testimony at the trial would correspond to his testimony under oath at the preliminary hearing. (7b) Under the circumstances, there has been no showing that the prosecutor acted in bad faith or improperly.
Moreover, while defendant's statements to the officers at the time of arrest could be interpreted as partially exculpatory in that he denied that the cigarette was his, such statements constituting evidence in defendant's behalf even though introduced as part of the People's case (see People v. Collins, 189 Cal.App.2d 575, 589 [ 11 Cal.Rptr. 504]; 2 Wigmore, Evidence (3d ed. 1940) § 290, p. 180), the inference that he had knowledge of the narcotic character of the cigarette was strengthened by his use of the term "joint" for marijuana cigarette (see People v. Newman, 127 Cal.App.2d 430, 432, 434 [ 273 P.2d 917]), and his statement that if "just carrying one joint" he "would swallow it." (See People v. Williams, 202 Cal.App.2d 387, 395 [ 20 Cal.Rptr. 740].) The judgment is affirmed.
First, was an objection lodged or a motion in limine made? ( People v. Williams (1962) 202 Cal.App.2d 387, 397 [ 20 Cal.Rptr. 740]; People v. Solis (1961) 193 Cal.App.2d 68 [ 13 Cal.Rptr. 813]; People v. Ramsey, supra, 172 Cal.App.2d 266; People v. Planagan (1944) 65 Cal.App.2d 371 [ 150 P.2d 927].) Second, was the jury informed by the court or by the prosecution opening statement is not evidence?
However, knowledge of the presence of the narcotic in order to constitute unlawful possession does not mean absolute or scientifically irrefutable knowledge as respondent apparently suggests. (See People v. Williams, 202 Cal.App.2d 387, 392 [ 20 Cal.Rptr. 740].) In fact, we can visualize numerous cases arising in the future in which purveyors of narcotics could escape conviction if we should hold that absolute knowledge of its presence is the test; for example, if A purchases a kilo of marijuana in a sealed container from B, a known narcotics dealer, under the truthful representation that the container contains marijuana, and then immediately sells the drug to C without examining the container's contents, he would not be guilty of any crime.
It is undisputed that defendant had the package of marijuana in his possession; he admitted that Alvarado gave him the package to hold and he went with it to his car. [2] The only question is whether the evidence establishes that defendant knew the substance in the package was marijuana and its narcotic character. Knowing possession of narcotics may be inferred from circumstances such as "the conduct of the parties, admissions or contradictory statements and explanations" ( People v. Foster, 115 Cal.App.2d 866, 868 [ 253 P.2d 50]; People v. Weathers, 162 Cal.App.2d 545, 547 [ 328 P.2d 222]; People v. Rodriguez, 151 Cal.App.2d 598, 601 [ 312 P.2d 272]), defendant's use of terms describing the narcotic — "weed" ( People v. Jackson, 198 Cal.App.2d 698, 706 [ 18 Cal.Rptr. 214]), "joint" ( People v. Groom, 60 Cal.2d 694, 697 [ 36 Cal.Rptr. 327, 388 P.2d 359]; People v. Williams, 202 Cal.App.2d 387, 395 [ 20 Cal.Rptr. 740] ) or defendant's "peculiar behavior" ( People v. Janisse, 204 Cal.App.2d 829, 832 [ 22 Cal.Rptr. 830]). Shortly before going to the apartment Alvarado alluded to someone else who was going to pick up some marijuana for whom he would wait so they could "do it together"; a few minutes later he and the agent entered apartment 5 after which defendant came in and was introduced to him by Alvarado as the man he was talking about and a "very good friend."
The sale by Gibbs and the seller's knowledge of the narcotics character of the substance were basic elements in the prosecution proof. (See Rideout v. Superior Court, supra, 67 Cal.2d at p. 474; People v. Williams, 202 Cal.App.2d 387, 391 [ 20 Cal.Rptr. 740].) Smith, the informer, was the only prosecution witness who could establish these facts by observation.
[4] But the same case pointed out what should be apparent to everyone acquainted with our judicial procedure: "Proof may be made by circumstantial evidence as well as direct." (See also People v. Estrada, 185 Cal.App.2d 435, 437-438 [ 8 Cal.Rptr. 308], and People v. Williams, 202 Cal.App.2d 387, 392, 395 [ 20 Cal.Rptr. 740].) [5] Here it is not questioned that the defendant had possession of the nine growing plants of marijuana located in the yard of his residence and tended to and irrigated by him in the same fashion as were his tomato plants, while he paid no attention to the lawn of Bermuda grass, which presumably also needed water but which was completely neglected.
[46] It is well settled that when evidence is admissible for one purpose, but inadmissible for another, the right to limiting instructions is waived if not requested at the trial. ( People v. White, 50 Cal.2d 428, 430-431 [ 325 P.2d 985]; People v. Williams, 202 Cal.App.2d 387, 396 [ 20 Cal.Rptr. 740].) 6. DENIAL OF MOTION FOR NEW TRIAL
No showing of bad faith was made here. See People v. Williams (1962) 202 Cal.App.2d 387, 397 [ 20 Cal.Rptr. 740], where the court said: "In the present case, the defendant made no objection to the statement of the district attorney and if he knew such statement could not be proven, should have objected at the time instead of relying on the possibility of a later reversal." [22] The applicable rules with respect to comments in the opening statement which are allegedly not substantiated by the evidence subsequently admitted were summarized in People v. Ramsey (1959) 172 Cal.App.2d 266, 272-273 [ 342 P.2d 287].