Opinion
Cr. 3176
4-19-1956
The PEOPLE of the State of California, Plaintiff and Respondent, v. Oscar HAMPTON, Defendant and Appellant.*
Robert L. Bostick, Oakland, for appellant. Edmund G. Brown, Atty. Gen., John S. McInerny, Deputy Atty. Gen., for respondent.
The PEOPLE of the State of California, Plaintiff and Respondent,
v.
Oscar HAMPTON, Defendant and Appellant.*
April 19, 1956.
Hearing Granted May 15, 1956.
Robert L. Bostick, Oakland, for appellant.
Edmund G. Brown, Atty. Gen., John S. McInerny, Deputy Atty. Gen., for respondent.
NOURSE, Presiding Justice.
The appellant and one Johnson were jointy charged with violation of the narcotics act--sale of marijuana. Appellant was also charged with two prior convictions for violation of the same act (possession of marijuana). Defendant Johnson pleaded guilty and was the only witness called by appellant. The two priors were admitted by appellant.
During the trial appellant was represented by private counsel. His appeal is presented here by counsel assigned by this court for that purpose.
Three grounds are assigned in the attack upon the judgment: (1) that appellant was not brought to trial within the statutory limit; (2) that the district attorney's remarks to the jury were prejudicial misconduct; (3) that the evidence is insufficient to support the verdict. The answers to all three points are simple.
(1) The record discloses that the appellant went to trial under stipulation by his counsel and without any objection to the delay--if any delay existed, which does not appear in the record.
It is the settled rule of decision that the statutory right to a speedy trial--within 60 days from the filing of the information--is a privilege to the defendant which may be waived. People v. Workman, 121 Cal.App.2d 533, 536, 263 P.2d 458; see for numerous citations to the same effect West's Annotated Penal Code, § 1382, vol. 50, pp. 788-789. The right was waived here when the defendant, in open court, consented to the time of trial without objection as to the time of trial.
(2) The assigned misconduct of the district attorney should not be taken seriously. It is argued that he was guilty of misconduct in referring to appellant as a 'supplier' and a 'big man' in the narcotics trade. No objection was made to these remarks and we are unable to perceive any misconduct. The appellant had theretofore been convicted on two charges of narcotics traffic. He had served two terms on those convictions. How many more would it take to make him a 'big man' in the trade? Succinctly, what is the basis upon which we could label a dealer in the illicit trade of narcotics as a 'big man' in the trade?
Appellant complains of the statement of the deputy district attorney in oral argument to the effect that all the evidence, in his opinion, showed that the defendant was guilty. He relies on People v. Kirkes, 39 Cal.2d 719, 723, 249 P.2d 1, which is an extreme case, and not in point, as in that case the district attorney intimated that he had private knowledge of facts showing defendant's guilt. The rule applicable here is found in People v. Acuff, 94 Cal.App.2d 551, 558, 211 P.2d 17, 21, where this court, speaking through Justice Goodell, gave the correct and sensible rule as follows: 'A prosecutor 'has the right to state his views, his beliefs and his convictions as to what the evidence establishes, and to urge that the evidence convinces his mind or is conclusive of the guilt of the defendant'' (citing numerous authorities).
(3) The evidence is sufficient. A federal narcotic agent testified in detail to the purchase and delivery of a quantity of marijuana in his presence. The appellant did not testify. His codefendant, who had pleaded guilty, gave a rambling story of the transaction which the jury manifestly disbelieved. The minor discrepancies between the testimony of this witness and that of the federal officer did not weaken the positive testimony of the officer. In any event the jury believed the testimony of the federal officer and disbelieved that of the codefendant. That disposes of the issue.
The appeal from the order denying a new trial must of course be dismissed.
Judgment affirmed.
KAUFMAN, Justice.
I concur in the affirmance of the judgment of conviction. On a review of the entire record I am of the opinion that appellant had a fair trial. The remarks of the district attorney while intemperate did not constitute prejudicial error. Article VI, section 4 1/2 of the State Constitution applies here.
DOOLING, Justice.
I dissent. In my opinion the statements of the prosecutor concerning his belief in appellant's guilt fall into the class condemned in People v. Kirkes, 39 Cal.2d 719, 249 P.2d 1, and People v. Edgar, 34 Cal.App. 459, 167 P. 891, and were not a mere statement of what the prosecutor believed the evidence established within the rule of People v. Acuff, 94 Cal.App.2d 551, 211 P.2d 17. I quote the prosecutor's exact language: 'It is my duty as a Deputy District Attorney to only prosecute the people that I believe are guilty. In this case I sincerely believe Mr. Hampton is guilty. * * * If I were to prosecute this man knowing he wasn't guilty, it would be a grievous breach of duty, and I am the first one to agree with that. But I don't believe the man is not guilty. I wouldn't be here standing in front of you.'
The prosecutor thus threw the weight of his personal integrity and his own judgment of appellant's guilt into the scales, without any reference to the evidence. The language of People v. Edgar, supra, quoted with approval by the Supreme Court in People v. Kirkes, supra, 39 Cal.2d at pages 723-724, 249 P.2d at page 4, clearly applies to the prosecutor's statements above quoted: "When the district attorney declared that he would not prosecute any man he did not believe to be guilty, he thereby wrongfully placed his personal opinion of the guilt of the defendant in evidence in the case. He was privileged to argue to the jury that it was his opinion, formed from deductions made from the evidence adduced at the trial that the defendant was guilty of the crime charged (citation); but his declaration to the jury that he would not prosecute any man whom he did not believe to be guilty was tantamount to an assertion that he believed in the guilt of the defendant at the very inception of the prosecution; and necessarily such belief must have been founded upon the result of the district attorney's original and independent investigation of the charge, and therefore in all likelihood was based, in part at least, upon facts which did not appear, and which perhaps could not have been shown, in evidence." --------------- * Opinion vacated 302 P.2d 300.