Opinion
Cr. 5433
10-11-1955
PEOPLE of the State of California, Plaintiff and Respondent, v. Dorothy DIXON, Defendant and Appellant.
Henry S. Rupp, Long Beach, for appellant. Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., for respondent.
PEOPLE of the State of California, Plaintiff and Respondent,
v.
Dorothy DIXON, Defendant and Appellant.
Hearing Granted Nov. 9, 1955. *
Henry S. Rupp, Long Beach, for appellant.
Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., for respondent.
DORAN, Justice.
Appellant was charged by information with the violation of section 11500 of the Health and Safety Code, to-wit: the unlawful possession of a preparation of heroin. At the arraignment a doctor was appointed to examine defendant as to 'present sanity and sanity at the time of the alleged offense'. Defendant entered a plea of not guilty and not guilty by reason of insanity. Trial by jury was waived and the matter was submitted on the transcript of the preliminary examination. The trial judge found defendant guilty as charged and sane at the time of the commission of the offense. A motion for a new trial was denied and defendant was placed on probation and as a condition thereof to serve one year in the county jail.
The officers entered defendant's home and forcibly took a key from defendant following a struggle. The key opened a padlock to the garage where the officers found some narcotics. The defendant told the officers that the narcotics belonged to a friend and were placed there by defendant at the friend's request. There is no question that, at least technically, defendant was in possession of the narcotics.
The contention on appeal is that 'The officers making this arrest, search and seizure did so without a warrant'.
It is also contended that the court erred in refusing a continuance because of defendant's illness.
It is argued that, 'testimony of the officers clearly shows that the rule laid down in Rochin v. California, 342 U.S. 165, [72 S.Ct. 205, 96 L.Ed. 183] was violated, and no narcotics, which were introduced in evidence, had been found prior to the time that the key was forcibly taken from her'. 'That there was a struggle over the key and that the key to the garage was forcibly taken from appellant after a struggle, in which she was thrown to the bed forcibly by the policemen'.
Respondent argues that, 'In the case at bar the officers extracted the garage key from appellant's person, opened the garage, and there found and seized the ten bags of heroin. They then entered the 'third garage from the right', and there found and seized the carton of capsules. In the appellant's house they found and seized a quantity of Merck milk sugar. Thus, '* * * the search was made contemporaneously with the arrest; only the premises immediately involved were searched; and only contraband connected with the alleged crime was seized. There was thus a scrupulous avoidance of the unconstitutional transgressions * * * denounced by the Cahan case (People v. Cahan, Cal., 282 P.2d 905.)' (Emphasis added).
'Appellant's implied argument that the key, the capsules and the heroin were inadmissible in evidence as the fruits of an illegal search and seizure is further shown to be without merit by the fact that no objection was made thereto. The law is settled in this State that a party cannot complain for the first time on appeal where no objection to the admissibility of evidence was made at the trial.
'Having failed to raise the question of admissibility by seasonable objection, appellant is therefore precluded from securing a reversal on the grounds urged.' People v. Beard, Cal.App., 287 P.2d 830.
Respondent's contentions are supported by the record and the law. To pursue the argument further is unnecessary. The judgment and order appealed from are affirmed.
WHITE, P. J., and DRAPEAU, J., concur. --------------- * Opinion vacated 296 P.2d 557.