White

Robert William White was accused by information of possession of heroin in violation of section 11500 of the Health and Safety Code of the State of California. Having waived his right to a trial by jury defendant submitted the matter to the court on the transcript of the preliminary hearing. Defendant moved to suppress the evidence, People’s Exhibit 1, on the ground that it had been obtained as the result of an unlawful search and seizure. The court denied the motion and after hearing all the evidence found the defendant guilty as charged. Defendant’s motion for a new trial and application for probation were denied and he *589 was sentenced to the state prison for the term prescribed by law.

Defendant seeks a reversal of the judgment of conviction on the ground that the trial court erred in denying defendant’s motion to suppress the evidence. He urges that the search of his room following his arrest elsewhere was not a proper incident of his arrest. People’s Exhibit 1 to which defendant’s motion to suppress was directed and which is the subject of his first point on appeal consists of a Pall Mall cigarette package containing a green balloon filled with 7% grams of heroin. It was…

I concur in the judgment: This is another case arising in Los Angeles county where the defendant was charged in the information with a prior conviction of a narcotic offense, and a certified copy of the commitment in such prior case was received in evidence without objection. Although the defendant testified in his own behalf, he offered no evidence with reference to the certified copy of the commitment and his attorney stipulated that the person named in the commitment was the defendant.

At the time of the hearing of the defendant’s application for probation the judge said, “The Court makes no finding as to the question of priors.” Sentence was then imposed upon the defendant as though he were a first offender, contrary to the clear wording of the statutes made and provided in such cases. See concurring opinion in People v. Rixner, 157 Cal.App. 387 , at pages 392-393 [ 321 P.2d 91 ], and opinion in People v. Barbera, * (Cal.App.) 323 P.2d 815 .

Appellant’s petition for a hearing by the Supreme Court was denied June 17, 1958.

A hearing was granted by the Supreme Court on June 4, 1958. The final opinion of that court is reported in 50 Cal.2d - [ 328 P.2d 973 ].

Robert William White was accused by information of possession of heroin in violation of section 11500 of the Health and Safety Code of the State of California. Having waived his right to a trial by jury defendant submitted the matter to the court on the transcript of the preliminary hearing. Defendant moved to suppress the evidence, People's Exhibit 1, on the ground that it had been obtained as the result of an unlawful search and seizure. The court denied the motion and after hearing all the evidence found the defendant guilty as charged. Defendant's motion for a new trial and application for probation were denied and he was sentenced to the state prison for the term prescribed by law.

Defendant seeks a reversal of the judgment of conviction on the ground that the trial court erred in denying defendant's motion to suppress the evidence. He urges that the search of his room following his arrest elsewhere was not a proper incident of his arrest. People's Exhibit 1 to which defendant's motion to suppress was directed and which is the subject of his first point on appeal consists of a Pall Mall cigarette package containing a green balloon filled with 7 1/2 grams of…