Duran v. People ( 1961 )

Mr. Justice Frantz

dissenting:

Reversal of the conviction of Duran is advocated in this case on the ground that there was a failure of proof of the offense charged. Since I believe that this assignment is well taken, I must dissent from the opinion of the majority. As I weigh the evidence presented in this case, it lacks the quantum necessary to permit submission of any issue to the jury.

Two police officers stopped the car in which Duran was riding. They ordered the driver, Chavez, and a passenger in the front seat, Trujillo, out of the car. They had to arouse Duran, who apparently was asleep on the back seat, before they could get him out of the car. Duran appeared to be intoxicated, his speech was incoherent, and he was unaware that police officers had awakened him. The officers could not detect the odor of alcohol on Duran.

In searching the car, the officers found a woman’s handbag on the floor between the front and back seats. The handbag contained items usually carried by a woman, including lipstick which had been used, identification of one Pauline Quintana, her residence address, and some bills addressed to her. Concealed in the flap were two hand-rolled cigarettes the content of which was later analyzed in the police laboratory and determined to be marijuana.

Chavez, Trujillo and Duran were taken to headquarters. There it was ascertained that Duran was not in physical condition for interrogation. No tests to learn the cause of his condition were attempted. Investigation revealed that the car which was being operated by Chavez that evening belonged to either Chavez’ mother or aunt.

The contents of Duran’s pockets were analyzed. His pants pocket contained some debris: “tobacco, lint, crystal, sand” and l/50th of an ounce of marijuana. At eleven o’clock the next night Duran was questioned by the officers, and in the course of interrogation denied having any knowledge of the handbag or its contents, or that he knew “the owner of the purse, the name in it, Pauline Quintana.”

Only Duran was accused of the crime of illegal possession of marijuana; no charge was laid against any of the others. One of the officers talked to Pauline Quintana and her name was endorsed as a witness on the Information against Duran. However, she was not called to testify at the trial.

The majority holds that whether the evidence relates to the minutia of marijuana found in Duran’s pocket or the two marijuana cigarettes, sufficient evidence was adduced: “In either event, there was sufficient evidence to warrant and require the trial court to submit the case to the jury.” We first consider the l/50th of an ounce of marijuana found in Duran’s pocket.

There are at least three reasons why this evidence is wanting. First, l/50th of an ounce of marijuana is such a trifling amount that this court should say of it, de minimis non curat lex. It is the policy of the court not to deal with trifles. Unless a statute contains a mandate to the contrary, the presumption is that trifles are not within the prohibitory terms of a statute.

The import of the last statement is clearly inferred in the very recent case of Carter v. People, 144 Colo. 475, 357 P. (2d) 93. In that case Mr. Justice Moore said:

“Suffice it to say that a substantial quantity of the drug in question was taken from the pocket of defendant who told the arresting officers that he thought it was marijuana.” (Emphasis supplied.)

The same reasoning to like effect was expressed in the case of Henson v. State, 25 Ala. App. 118, 141 So. 718. In that case a teaspoonful of whiskey was involved. The court commented:

“These decisions and others of like tenor were based upon the possession of an appreciable quantity of whiskey. It was never intended by the Legislature to make the possession of a teaspoonful of whiskey a violation of the law.”

Secondly, C.R.S. ’53, 48-6-1, et seq. dealing with narcotic drugs, including cannabis sativa L., is not in so many words or by implication drafted in terms of forbidden drugs “in any quantity whatsoever.” Statutes containing such or similar provisions are properly construed by the courts as including very small quantities.

Thirdly, this minute quantity of marijuana was not usable. It was part of an admixture • of tobacco, lint, crystal and dirt. In such condition it can hardly be said to have the properties of marijuana. At most, its presence in Duran’s pocket is suggestive of the likelihood that at some prior time he may have had marijuana in his possession; that such possession was far enough removed from the present that particles thereof formed part of the mixture found in his pocket.

Believing that the evidence of possession is insufficient concerning the contents of Duran’s pocket, we now turn our attention to the question of the two cigarettes in the flap of the woman’s purse.

An equivocal situation regarding possession is not sufficient to hold a defendant responsible to a criminal charge; he can only be required to account for the possession of things which he actually and knowingly possessed. Van Straaten v. People, 26 Colo. 184, 56 Pac. 905; Sitterlee v. People, 67 Colo. 523, 186 Pac. 527. Such was the situation present here. The cigarettes were in a woman’s handbag ostensibly owned by Pauline Quintana; the handbag was on the floor of a car owned by a Mrs. Chavez; the car was driven by James Clifford Chavez beside whom sat Trujillo; and Duran was apparently asleep on the back seat of the car. It cannot be said that the People sustained the burden of proving possession of these cigarettes in Duran without something additional to the foregoing insufficient and problematical circumstances.

Resolution of a criminal charge is not a matter of speculation and surmise. If the evidence of possession of illicit effects “raises a mere suspicion, or, admitting all it tends to prove, the defendant’s guilt is left doubtful or dependent upon mere supposition, surmise, or conjecture, the court should advise the jury to acquit the defendant.” Robinson v. State, 66 Okla. Cr. 139, 90 P. (2d) 54. See People v. Urso, 129 Colo. 292, 269 P. (2d) 709. The speculative character of the evidence of possession was more glaring in the case of Duran than in that of the others involved.

There is no solace for the Attorney General in the case of Gonzales v. People, 128 Colo. 522, 264 P. (2d) 508. There the court stressed the fact that the contraband was found in the defendant’s room where he had his clothes. The indecisive nature of the evidence in the instant case brings it nearer to the facts in Alexander v. State, 26 Okla. Cr. 8, 221 Pac. 516, where it was said:

“This defendant may have been in possession of narcotic drugs, as charged; it may be that she and others maintained or assisted in maintaining a place where narcotic drugs were kept and distributed, and such fact may have been known to or suspected by the officers; but there is no evidence in the record to support such conclusion, beyond the fact that certain drugs were found and seized by the officers in a room reserved by the owner for his own use in a private rooming house in which the defendant had a room. To sustain a conviction against one of several such inmates there must be evidence beyond the mere finding of the drug in the room of the owner of the house. According to the evidence here these narcotics may have belonged to the owner of the premises, or they may have been the property of some other inmate of the house.”

Mr. Chief Justice Hall joins in this dissent.