People v. Terry

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[Crim. No. 2907. Second Appellate District, Division Two. December 18, 1936.]

THE PEOPLE, Respondent, v. JOHN TERRY, Appellant.

COUNSEL

William J. F. Brown for Appellant.

U.S. Webb, Attorney-General, and R. S. McLaughlin, Deputy Attorney-General, for Respondent.

OPINION

McComb, J., pro tem.

Appellant was convicted after trial by jury of violation of the State Narcotic Act, a felony. This appeal is from the judgment and from the order denying his motion for a new trial.

Viewing the evidence most favorable to the prosecution (People v. Dukes, 90 Cal. App. 657, 659 [266 P. 558]), the facts in the instant case are:

April 10, 1936, appellant, while in an apartment in the city of Los Angeles, was seen to have in his hand a yellow box which, upon officers entering the room, he threw out of a window. The content of the box upon examination was found to be "yenshee", a preparation of opium in excess of two grains of opium in the avoirdupois ounce. [18 Cal. App. 2d 200]

Appellant relies for reversal of the judgment on the following propositions:

First: The evidence is insufficient to sustain the verdict and judgment.

Second: The court committed prejudicial error in permitting over objection introduction of evidence by the prosecution concerning a conversation between appellant and a police officer relating to crimes other than the one with which defendant was charged.

[1] Regarding appellant's first contention, we have examined the record and are of the opinion there was substantial evidence considered in connection with such inferences as the jury may have reasonably drawn therefrom to sustain the findings of fact upon which the verdict of guilty was predicated. (People v. Dukes, supra.)

[2] As to appellant's second proposition, the evidence was received over objection subject to a motion to strike. However, since appellant did not make a motion to strike the testimony after it was received, he may not urge in this court that the ruling was erroneous. (Estate of Wempe, 185 Cal. 557, 564 [197 P. 949]; Tarpey v. Veith, 22 Cal. App. 289, 294 [134 P. 367]; People v. Page, 86 Cal. App. 148, 157 [260 P. 591].)

The judgment and order are, and each, is affirmed.

Crail, P. J., and Wood, J., concurred.