Gutierrez

Appellant Gutierrez and one Ramirez were separately accused by information of a violation of the Health and Safety Code, section 11531, arising out of the sale of five marijuana cigarettes on February 24, 1961. The cases were consolidated for trial, defendants pleaded not guilty, and the jury found Gutierrez guilty, but was unable to reach a verdict as to Ramirez. Gutierrez now appeals from the judgment and from an order denying his motion for a new trial.

The People’s case rested entirely on the testimony of State Narcotics Agent Martinez, which was, in substance, as follows: On the evening of February 24, 1961, Martinez accompanied a man, known only as Shone, to the Ace High Café in Santa Maria. Shone undertook to find marijuana for Martinez. While at the bar, Martinez made some inquiries of the patrons as to where he might obtain some marijuana. An unidentified patron spoke to Gutierrez, who thereupon came to Martinez, inquired whether Martinez was looking for marijuana and when informed that he was, stated to Martinez that a colored fellow named Danny might have some and would be in the café between 10 and 10:30 p. m. Danny never appeared. At the suggestion of Gutierrez, he…