People v. Gory

28 Cal. 2d 450, 170 P.2d 433 (1946)



A person has possession of a chattel who has physical control with the intent to exercise such control, or, having had such physical control, has not abandoned it and no other person has obtained possession. But knowledge of the existence of the object is essential to physical control thereof with the intent to exercise such control and such knowledge must necessarily precede the intent to exercise, or the exercise of, such control. The distinction which must be drawn is the distinction between (1) knowledge of the character of the object and the unlawfulness of possession thereof as embraced within the concept of a specific intent to violate the law, and (2) knowledge of the presence of the object as embraced within the concept of physical control with the intent to exercise such control, which constitutes the "possession" denounced by Cal. Penal Code § 20. It is "knowledge" in the first sense which is immaterial but "knowledge" in the second sense is the essence of the offense.


Defendant was a prisoner at an honor farm and shared living quarters with other prisoners. As part of the equipment issued to each prisoner, defendant received a metal box to keep personal effects. Upon a search, officers discovered marijuana in defendant's box. Defendant was subsequently convicted of unlawful possession of marijuana in violation of Cal. Health & Safety Code §11160. Defendant's motion for a new trial was denied. On appeal, the court reversed defendant's conviction for possession of marijuana since the trial court failed to instruct the jury fully and clearly as to defendant's knowledge of the possession of marijuana. Because of the denial by defendant of knowledge of the marijuana's presence in his unlocked box, it was the duty of the court to submit to the jury, on proper instruction, the question as to whether defendant had knowledge of the presence of marijuana. The court reversed defendant's conviction.


Is knowledge considered to be an element to the crime of possession of marijuana?




Our code provides that "the word 'willfully,' when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, . . ."  While thus the word "willfully" invokes the element of knowledge in the sense here required, the word was not defined in the instructions to the jury. This fact is material in view of the court's withdrawal of instruction 12, directed to the same element of knowledge in requiring that defendant must "knowingly" have had "in his possession the objects charged in the information" in order to be found guilty. In this confusion in the submission of the essential issue of fact to the jury for consideration in the determination of defendant's guilt, it is doubtful, to say the least, whether the jury would infer from the word "willfully" the element of knowledge in the required sense.

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