Henry

Defendant was convicted of possession of marijuana (Health & Saf. Code, § 11530), and it was found that he had previously been convicted of the same offense. A motion for a new trial was denied, and he was sentenced to prison. He appeals, contending that the trial court over objection improperly admitted marijuana obtained in an illegal search. We have concluded that the trial court’s failure to find whether there was a valid consent to the search requires a reversal of the judgment.

The sole prosecution witness was Los Angeles Police Officer Smith, whose testimony may be summarized as follows:

About June 7, 1965, an informant told the police that a *844 man named “Johnny” who lived at a specified hotel sold marijuana and that the informant had heard that there was marijuana in “Johnny's” room. The informant also gave the police a description of “Johnny.” Smith considered the informant to be reliable, having on two prior occasions received information from him that led to described arrests. Several days before receiving the foregoing information, Smith had received similar information from another informant.

On June 13, 1965, Smith and his partner Watts, without a warrant of…

I dissent. I would affirm the judgment for the reasons expressed by Mr. Justice Fourt in the opinion prepared by him for the Court of Appeal, Second Appellate District, Division One, and concurred in by Mr. Presiding Justice Wood and Justice Lillie, which is quoted in full below:

This is an appeal from a judgment of conviction of possessing a narcotic drug and from an order denying a motion for new trial.

In an information filed in Los Angeles County on July 2, 1965, defendant was charged with having possessed marijuana on June 13, 1965. It was further charged that defendant previously, on March 15, 1962, had been convicted of a violation of section 11530, Health and Safety Code, a felony. Defendant pleaded not guilty and denied the charged prior conviction. A jury trial was waived and defendant was found guilty as charged. The court found the charged prior to be true. Defendant was sentenced to the state prison. This appeal was timely filed.

A résumé of some of the facts is as follows: In early June of 1965, about a week prior to the arrest of defendant, Officer Smith of the Los Angeles Police Department received information from a person whose name he did not recall, and whom…