In re HARRY HOROWITZ, on Habeas Corpus. THE PEOPLE, Respondent, v. HARRY HOROWITZ, Appellant.
Crim. No. 4854. L. A. No. 20199.
In Bank
Feb. 28, 1949.
33 Cal. 2d 534
Fred N. Howser, Attorney General, and Frank Richards, Deputy Attorney General, for Respondent.
Factual Background
The judgments of conviction which petitioner attacks are of forging a will (
Previous Attacks Upon the Judgments
The judgments of conviction growing out of such prosecution were affirmed by the District Court of Appeal (People v. Horowitz (1945), 70 Cal.App.2d 675 [161 P.2d 833]) and petitions of appellant Horowitz for rehearing and for hearing by the Supreme Court were denied. Shortly after the going down of the remittitur (Oct., 1945) Horowitz petitioned the Los Angeles Superior Court for the writ of habeas corpus and the writ of error coram nobis. The superior court issued the writ of habeas corpus and, after hearing (Jan., 1946), discharged it and denied the petition for coram nobis. Horowitz appealed from the order of denial but the appeal was subsequently dismissed. (Petitioner states that he failed to prosecute the appeal because it came before the same court which had affirmed the judgments of conviction and he felt that the justices of that court were prejudiced against him.) Another petition for habeas corpus was denied by this court without
The Coram Nobis Appeal
An order denying a petition for the writ of error coram nobis is made appealable by
Petitioner alleges that the prosecution knowingly used perjured testimony of Mrs. Irene Drucker to the following effect: On or about January 6, 1943, in the evening, petitioner called upon Mrs. Drucker and demanded possession of articles of personal property which had belonged to his mother and which were in Mrs. Drucker‘s possession. For the purpose of substantiating his claim he produced a sheet of paper which was blank except that it bore the signature of Esther Horowitz. Mrs. Drucker refused to deliver the property to petitioner. Later petitioner returned to Mrs. Drucker and again displayed the paper; on this occasion it bore the substance of the forged will and the word “Witnesses,” but no signature of any attesting witness.
The questions whether this testimony was wilfully false as to material matters and whether the prosecution used such testimony with knowledge that it was perjured, were tried out before the Honorable William R. McKay on the above mentioned previous habeas corpus and coram nobis proceedings in the superior court in January, 1946, and were resolved adversely to petitioner. In his present petition for habeas corpus petitioner states in detail his reasons for his continued insistence that they be tried out again. Such reasons, with explanations of their want of merit, are as follows:
(1.) Attorney Irving Buchalter, who handled the probate proceedings for petitioner, was a witness (called by both the People and the defendant) at the criminal trial. He testified for the prosecution that petitioner had shown him the will and other documents on January 5, 1943, and had left them in Buchalter‘s possession on the day of January 6, 1943; i. e., before Mrs. Drucker, according to her testimony, saw the paper bearing only the signature of petitioner‘s mother. The prosecuting attorney recognized and called the jury‘s attention to this conflict in the evidence. In oral argument he told the jury, “Now, of course, it is obvious to you ladies and gentlemen that if Mr. Buchalter saw the document on January 5 and at that time it contained the names of Emma Cordova and Maria Matus, that Mrs. Drucker could not have seen it on the 6th, as she testified that she did see it on or about the 6th, because at that time the will was in the possession of Mr. Buchalter.” The fact that there was a conflict between the testimonies of two prosecution witnesses may indicate that one was mistaken or even lying but does not show that the
(2.) Upon the trial of the will contest Mrs. Drucker testified for contestant Morris Horowitz. She did not then testify as to having seen the forged will in various stages of preparation. After probate of the will had been denied and petitioner had moved for a new trial of the will contest Mrs. Drucker made an affidavit in opposition to the motion for new trial, in which she stated that she had seen the will without the signatures of subscribing witnesses. That her mention of this matter was belated does not, as petitioner argues, necessarily establish that she fabricated her testimony. The effect of such belated mention upon her credibility, in the light of her earlier testimony, was for the jury to determine upon the criminal trial of petitioner and the question was properly presented to that fact-finding body. The effort of petitioner‘s counsel to impeach the testimony of Mrs. Drucker in this respect is shown by the following excerpt from the transcript:
“Q. Did you make an affidavit in which you swore that you had never told any one prior to the 24th day of September, 1943 [i. e., after probate of the will was denied], that the two signatures that you claim were not on the document you saw were not there? A. I did.
...
“Q. Did you swear also that you had not mentioned this fact, such fact to the attorneys for the contestant before or at the time of the trial of the contest? A. That is right.”
(3.) Petitioner alleges that at the time when, according to Mrs. Drucker‘s testimony, she saw and identified the paper upon which the will was forged, she could not read; that she then “did not even know the letters of the English alphabet.” That there was a question as to the extent of Mrs. Drucker‘s literacy was known to petitioner before the criminal trial. Such question was properly gone into on cross-examination in an effort to cast doubt upon her credibility and it was brought out that her ability to read was, at the most, slight. This fact, although it was material for the consideration of the triers of fact in determining the weight of her testimony, does not necessarily establish, and certainly does not charge the prosecutor with knowledge of, deliberate falsification on her part.
Petitioner charges, also, that testimony of handwriting experts, known by the prosecution to be false, was introduced against him and that expert testimony favorable to petitioner was suppressed by the prosecution. In elaborating these charges petitioner makes it apparent that they are without substantial support. The fact that experts disagree does not necessarily reflect upon the honesty of their opinions. The fact that no chemical tests of ink used on the disputed document were made by the prosecution witnesses does not, in the light of any other circumstance shown, indicate that the prosecution anticipated, or should have anticipated, that the results of such tests, if made, would be unfavorable or at all enlightening; accordingly, the failure to have such tests made does not establish that the prosecution “suppressed” evidence which, if adduced, would have favored petitioner. “There is no compulsion on the prosecution to call any particular witness or to make any particular tests so long as there is fairly presented to the court the material evidence bearing upon the charge for which the defendant is on trial. [Citations.]” (People v. Tuthill (1947), 31 Cal.2d 92, 98 [187 P.2d 16].) The fact that particular expressions of a witness, taken out of context, seem inconsistent with other statements of the witness does not show that he is lying. Yet, search of the entire record discloses, it appears to be upon these considerations that petitioner relies as basis for his grave charges
Petitioner complains that before the trial of the will contest he informed a deputy district attorney that the will had been mutilated by “spoliation of the first down-stroke in the letter H in the name of the subscribing testatrix“; that the district attorney refused to investigate this charge; and that the People were guilty of “fraud” in subsequently prosecuting petitioner on the basis of this will. The factual situation as to the asserted mutilation of the will was as follows: After it was filed for probate it was removed from the files by counsel for contestant Morris Horowitz and examined by handwriting experts employed by him. Petitioner suggests that it was on this occasion that the will was mutilated. Also, after the will was filed for probate petitioner himself obtained possession of it. It was the theory of the prosecution that petitioner then mutilated the document. He was tried and acquitted on this charge. (People v. Horowitz (1945), supra, 70 Cal.App.2d 675, 684.) It was apparent that the district attorney did investigate the claimed mutilation of the will. The facts that this investigation was not initiated immediately upon petitioner‘s suggestion, but rather after trial of the will contest at the suggestion of the probate judge, that such investigation led the district attorney to the conclusion that petitioner himself should be charged with mutilation, and that upon the trial he was acquitted of that charge, do not, in view of the other circumstances shown, sustain a charge of “fraud.”
Petitioner‘s Contention That He is Being Punished Four Times for One Act
Petitioner complains of the order, made by the trial court which sentenced him, that the sentences run consecutively. He urges that such order is in violation of the provision of
Penal Code, section 470 : “Every person who, with intent to defraud, . . . falsely makes . . . any . . . will, . . . or utters, publishes, passes, or attempts to pass, as true and genuine, . . . [the forged will], knowing the same to be false . . . , with intent to prejudice, damage, or defraud any person . . . is guilty of forgery.”
Penal Code, section 115 : “Every person who knowingly procures or offers any false or forged instrument to be filed . . . in any public office within this state, which instrument, if genuine, might be filed . . . under any law of this state . . . is guilty of felony.” (A will is an instrument within the contemplation of section 115. People v. Davidian (1937), 20 Cal.App.2d 720, 723 [67 P.2d 1085].)
Penal Code, section 132 : “Every person who upon any trial . . . offers in evidence as genuine or true, any . . . paper . . . , knowing the same to have been forged or fraudulently altered or antedated, is guilty of felony.”
Penal Code, section 134 : “Every person guilty of preparing any false or antedated . . . paper . . . with intent to produce it, or allow it to be produced for any fraudulent or deceitful purpose, as genuine or true, upon any trial . . . is guilty of felony.”
Petitioner relies upon cases which hold that one who, with reference to the same instrument, is guilty of more than one of the acts denounced by
In the present case, as previously indicated, the indictment alleged and the jury found petitioner guilty of four instances of criminal conduct, and the record of the trial (which is filed with us) shows evidence sufficient to support the jury‘s determination that petitioner committed four separate offenses upon four separate occasions, as follows:
1. Petitioner was charged with and found guilty of a violation of
2. It was alleged, the evidence sufficiently showed, and the jury found that on January 11, 1943, petitioner violated
3. It was alleged, the evidence sufficiently showed, and the jury found that on July 26, 1943, petitioner violated
4. Petitioner was charged with and found guilty of a violation of
It is thus apparent that on the showing made, and under established law, we must accept the contention of the respondent that petitioner is being punished for four separate acts and that the consecutive running of the sentences does not constitute punishment of one act more than once. Accordingly, since the question is not presented on the record before us, it is unnecessary to decide whether habeas corpus is available to relieve one whose sentences are ordered to run consecutively in violation of
Attack Upon Determination of Prior Conviction of Felony
Petitioner complains of the determination, made at the time of his conviction in California, that in 1926 in Illinois he was convicted of four robberies, felonies, the sentences to run concurrently, and that he served a term of imprisonment therefor in the state prison. This contention is relevant because “for a person previously convicted of a felony either in this State or elsewhere” the minimum term of imprisonment is five years (
Other Contentions
Petitioner has requested that impartial experts be appointed by this court to examine the will. Such examina-
Petitioner undoubtedly has established that at the trial there were disputed issues of fact and grave conflicts in the evidence. But the existence of such issues and conflicts at the trial, or the discovery of new evidence pertinent to them, presents no ground for intervention by us on habeas corpus. Even if petitioner‘s cause were presently before us on appeal from the judgments of conviction, the trial court‘s factual determinations, on such a record, would be conclusive. Under our system of law the weight of the evidence is primarily for the jury; it then may be reviewed by the trial judge and a new trial granted if in his discretion it appears that the weight of the evidence, despite substantial conflict, does not sustain the jury‘s finding. But on appeal, if there be substantial conflict, the determinations of jury and trial judge must be accepted as final (People v. Tom Woo (1919), 181 Cal. 315, 326 [184 P. 389]; People v. Green (1939), 13 Cal.2d 37, 42 [87 P.2d 821]) and on habeas corpus, wherein the attack is collateral, the sphere of inquiry and bases of action are still more limited (In re Byrnes (1945), 26 Cal.2d 824, 827 [161 P.2d 376]; In re McVickers (1946), 29 Cal.2d 264, 273 [176 P. 2d 40]). If at the end of court procedures there is claimed to persist a miscarriage of justice, despite all the precautions of the law to the contrary, the ultimate remedy rests in an appeal to the governor for a pardon. (
Other contentions of petitioner need not be set out at length. They concern matters which should not be raised on habeas corpus and many of them were presented to, and correctly disposed of by, the District Court of Appeal upon the appeal from the judgments of conviction.
Furthermore, certain grounds of the petition were presented by the previous application to this court for habeas corpus, and it appears that all grounds now urged were then known to petitioner. It is the policy of this court to deny an application for habeas corpus which is based upon grounds urged in a prior petition which has been denied, where there is shown no change in the facts or the law substantially affecting the rights of the petitioner. (In re Miller (1941), 17 Cal.2d 734, 735 [112 P.2d 10]; In re De La Roi (1946), 28 Cal.2d 264, 275 [169 P.2d 363].) And as to the presentation of new grounds based on matters known to the petitioner at
For the reasons above stated the appeal in L.A. 20199 (coram nobis) is dismissed; the “Motion for Appointment of Experts by Court” is denied; the writ heretofore issued in Crim. 4854 (habeas corpus) is discharged; and petitioner is remanded to custody.
Gibson, C. J., Shenk, J., Traynor, J., and Spence, J., concurred.
CARTER, J.—I concur in the conclusions reached in the majority opinion and generally in the reasons stated therein for such conclusions, but I do not desire to be understood as giving approval to the rules announced in the majority opinions of this court in People v. Slobodion, 30 Cal.2d 362 [181 P.2d 868] and Estate of Hanley, 23 Cal. 2d 120 [142 P.2d 423], as I do not consider the rules announced in these opinions to be good law and I am hopeful that the time will come when the majority of this court will so declare.
EDMONDS, J.—The order dismissing the appeal from the order denying Horowitz relief by way of a writ of error coram nobis necessarily is based upon the conclusion recently stated by a majority of the court that such an application “must be regarded as part of the proceedings in the criminal case . . .” (In re Paiva, 31 Cal.2d 503, 510 [190 P.2d 604].) This was a startling and wholly illogical departure from the rule long followed in California and expressly recognized by Mr. Justice Schauer in the same opinion: “That the writ, or the proceeding for it, has been traditionally regarded as civil cannot be disputed.” Yet, notwithstanding the traditional classification of the remedy, it was decided that “an order made in a proceeding in the nature of a writ coram nobis is an order in the original case . . .” although none of the cases cited immediately following such characterization of it so hold. On the contrary, in previous consideration of the remedy of coram
For the reasons, which I stated more fully in the Paiva case (31 Cal.2d at p. 511), in my opinion the notice given by Horowitz of an appeal from the order denying relief to him was timely filed and the record should be reviewed upon the merits. As to the issues presented in the habeas corpus proceeding and the motion in connection therewith, I concur in the judgment.