THE PEOPLE, Respondent, v. WALTER BROWER, Appellant.
[Crim. No. 2533. First Dist., Div. One. June 24, 1949.]
First Dist., Div. One.
June 24, 1949.
562
Fred N. Howser, Attorney General, and David K. Lener, Deputy Attorney General, for Respondent.
He makes five contentions: (1) The information became void. (2) The court refused to let the codefendant Gross plead guilty. (3) He was not brought to trial within the time prescribed by law. (4) Errors in introduction of evidence. (5) The corpus delicti was not proved.
1. INFORMATION WAS NOT VOID
In the original information defendant was charged jointly with one Gross with the crime of forgery. On October 20, 1947, both defendants pleaded not guilty thereto. On December 4, both defendants were in court, represented by Attorney Klein. The clerk proceeded to arraign them on an amended information which apparently had been filed previously. (The record does not show when.) This information was the same as the original one except that a prior conviction against Brower alone had been added. To this amended information Gross pleaded guilty, Brower not guilty, admitting the prior conviction. The district attorney then asked the court to refuse to accept Gross‘s plea of guilty. In the discussion which ensued the court set aside the amended information on the ground that it was filed after plea to the original information, without leave of court. While the court used the language “set the whole thing aside” it is obvious from the discussion and the proceedings thereafter, including the fact that Brower at no time during the trial contended that the original information had been set aside, that the court was referring to the amended information and not to the original information. Defendant now contends that the amended information superseded the original information and when the court set it aside the original information was set aside also, and there was left no information upon which to try him. This contention is not well founded. Section 1008 of the
2. THE CODEFENDANT‘S PLEA
As stated, Gross pleaded not guilty to the original information. He pleaded guilty to the amended information before the court set it aside. When the court set aside the amended information, the district attorney announced that he would file an amended information later. Apparently this was not done, although at the end of the presentation of evidence by the prosecution, the following occurred: “MR. MULLINS [for the prosecution]: That is all. That is the People‘s case except on a motion for the amended information, which is under submission. THE COURT: That will remain under submission.” The court did not act further on this matter and the judgment made no mention of the prior conviction. The record shows that on more than one occasion before trial, Gross asked that he be permitted to change his plea from not guilty to guilty. To this the district attorney objected and the court refused to allow the change. Brower contends that thereby he was forced to trial with an admittedly guilty man and that the jury was influenced by evidence admissible against Gross alone, which could not have been before the jury had Brower been tried alone. Thus, Gross‘s confession, which was not admissible against Brower, was admitted. Although the court specifically instructed several times that this confession was not to be used against Brower, the district attorney in his argument read it to the jury, emphasizing the parts implicating Brower. The court erred in forcing Gross to stand trial where the only purpose
When Brower called Gross to the stand to testify, he stood on his constitutional rights and refused to do so. It is doubtful if this can be blamed on the prosecution. However, were there any reasonable doubt of Brower‘s guilt, the fact that Gross was compelled to stand trial against his own wish, so that his confession could be indirectly used against Brower, and that Gross then refused to give Brower an opportunity to examine him concerning the matters mentioned in the confession, would be important. But in view of the facts of the case, no miscarriage of justice resulted.
3. DELAY IN BRINGING DEFENDANT TO TRIAL
Approximately four months and eleven days elapsed from the filing of the information to the date of trial. A portion of this time defendant was confined in jail serving a 60-day term. During all the time up to the day before the case went to trial, defendant was represented by an attorney who also represented the codefendant. The record shows that while on one or two occasions the attorney complained of the delay in setting the case, he either asked for the continuances, acquiesced in, or consented to them. The information was filed on October 14. Defendants were arraigned October 17. At defendant‘s request the matter was continued to October 20, to plead. October 20 defendants pleaded and at defense attorney‘s request the case was continued to October 27 to be set. The record fails to show what, if anything, happened between October 20 and November 20. On the latter date, when the case was called, the defense attorney stated that he had consulted with the district attorney and offered to plead both defendants guilty provided Brower was sentenced to the county jail for six months instead of being given a prison sentence. Some discussion ensued between counsel on this subject, the district attorney refusing to recommend the jail sentence. The district attorney stated that Gross was charged with one Brick on another charge and he desired to try that case, to be followed by the case against Gross and
FACTS
Before discussing the next two points, it is advisable to set forth the facts established at the trial. The charges against Gross and Brower were the aftermath of a burglary at Longview, Washington. The facts concerning that crime were not contradicted. Brower admittedly had no part in the commission of that crime, as he was actually in the San Francisco County Jail at the time. On a night in June, 1947, the safe was removed from the Longview Western Union office. It was later found at the city dump with a hole burned in it. The inventory the night before had included unused American Express money orders AQ-8188400 to AQ-8188499 inclusive. (Hereafter these money orders will be referred to
Order 483 was cashed at the Zanzibar Tavern. The owner identified Brower as the person who presented and cashed it, saying that he was cashing it for a friend. Order 486 was cashed at a liquor store by Gross. The clerk who cashed it testified Gross came in alone and that he had never seen Brower before the trial. Order 487 (the one set forth in the information) was cashed at a night club by Gross but Brower was not present. The money orders were signed either “Ida Stearns” or “Davis Stearns” as payee. These money orders were of the type made payable to a named payee and which the payee does not sign on purchase, but must sign when they are cashed. The handwriting expert of the San Francisco Police Department testified that after comparing certain exemplars written and signed by Brower with the handwriting and signatures on the orders, he was convinced that the filled in matter and the signatures were in Brower‘s handwriting and had been written by him. A police inspector testified that when he asked Brower to compare his own exemplars with the signatures on the money orders, Brower said, “That finishes me. . . . I will cop a plea to petty theft if you will give me a county jail sentence“; also, that when confronted with a statement given by Gross incriminating Brower, the latter stated to Gross, “You put the noose on my neck, Joe. Why did you give that statement?”
4. NO ERROR IN ADMISSION OF EVIDENCE
Defendant contends that the court erred in admitting testimony that Brower cashed order 483, inasmuch as the order he was charged with forging was 487, cashed by Gross. Defendant contends that this was evidence of an independent and unrelated crime. The evidence was admitted prior to proof that Brower had any connection with order 487. The evidence was admissible, as it, together with the other evidence concerning the other two orders which were cashed the same day, shows a general pattern, scheme or plan to forge orders stolen in blank from the Western Union office. Admissibility of such evidence is well established. (People v. Selk, 46 Cal.App.2d 140 [115 P.2d 607]; People v. Cassandras, 83 Cal.App.2d 272 [188 P.2d 546]. See, also, discussion in 8 Cal. Jur. 69.)
In People v. Albertson, 23 Cal.2d 550 [145 P.2d 7], in discussing the admissibility of evidence of other crimes, the court says (p. 578): “Hence: (a) Ground must first be laid implicating the accused in the charge under trial, and unless sufficient evidence of this has been, in the opinion of the trial judge, first adduced, all evidence of other offenses must be excluded; (b) the collateral offense cannot be put in evidence without proof that the accused was concerned in its commission. . .” Although in the order of proof in our case, the court admitted this character of evidence before it had received evidence complying with this rule, such evidence was later received. Where sufficient evidence to meet the requirements above set forth actually appears in the case, the fact that it came later is not important.
Defendant contends that the corpus delicti was not established against him. The rule is that the prosecution must establish that a crime has been committed, but the identity of the person who committed it is not a part of the corpus delicti. (People v. Garcia, 101 Cal.App. 213 [281 P. 508].) Defendant maintains that the order (487) described in the information was not admitted in evidence, basing his contention on some confusion in the use of the terms “checks” and “money orders.” Both the district attorney and the witnesses used these terms interchangeably. In addition to the money order blanks stolen at Longview, there were also some blank traveler‘s checks taken at the same time. The difference between a “check” and a “money order” is that on the latter the payee‘s name is not signed until the time of the cashing, while on the “check” the purchaser signs at the time of purchase and then when cashing, signs again as a means of identification. While the orders 487, 486 and 483 were frequently referred to as “checks,” the record clearly indicates that the witnesses and counsel were not referring to the stolen “checks” but to these particular orders. When these three were marked for identification, they were referred to as “checks,” but when they were actually introduced into evidence they were properly called. Defendant is in error in contending that they were not admitted in evidence. The record clearly shows that all three of them were.
The judgment is affirmed.
Ward, J., concurred.
PETERS, P. J.-I dissent.
The majority opinion fully and fairly sets forth the facts. That opinion concedes that the only purpose in forcing Gross to stand trial and in refusing to accept his plea of guilty “was to get before the jury evidence inadmissible against Brower.” The majority concede that this was error and that “This practice is highly reprehensible.” Nevertheless, the majority state that they are “forced” to hold that the error was not prejudicial under article VI, section 4 1/2 of the Constitution, because the other evidence in the record shows guilt. The inadmissible evidence, being a confession of a supposed coactor, was highly persuasive and could not help but be convincing to a jury. I concede that the other evidence in the record is sufficient to sustain a finding of guilt, but that
Article VI, section 4 1/2, serves a most important purpose, and that is to prevent all errors resulting in a reversal. But that section does not require that all errors, no matter how great, must be held to be nonprejudicial simply because, independently of error, guilt may be spelt out of the record. The fundamental requirement in every case, guaranteed under the state and federal Constitutions, is that the defendant must be accorded a fair trial. The Constitution guarantees that a defendant is entitled to have his guilt or innocence determined according to law, and is entitled to the protection of his substantial rights. Here the defendant was not accorded that protection. How can this court say, as a matter of law, from the cold record that, had defendant been separately tried, as the majority admit he should have been, and had the confession of Gross implicating defendant not been admitted into evidence and read and emphasized to the jury, this jury nevertheless would have convicted him on the testimony of the expert? It is not necessary, in order to require a reversal, that the appellate court be convinced that the defendant was prejudiced by the error. Whenever it appears that such error could have prejudiced him, it is the duty of an appellate court to reverse. Otherwise, the rule that a defendant is entitled to a fair trial will have completely disappeared from our law.
These principles are not new. They are the principles that have frequently been stated by the appellate court, by the Supreme Court of California and by the Supreme Court of the United States. One quotation from each of these courts demonstrates that this is so.
In People v. Adams, 76 Cal. App. 178, 186 [244 P. 106], a frequently cited case, the District Court of Appeal declared : “The evidence is sufficient to support the judgment. It is perfectly clear, however, that section 4 1/2 of article VI of the constitution was not intended to mean that the mere fact that the evidence may support the judgment is a sufficient reason in all cases for refusing to set it aside. To give the section that meaning would often lead to gross miscarriages of jus-
The Supreme Court of California, in People v. Sarazzawski, 27 Cal.2d 7, 10 [161 P.2d 934], stated the proper rule as follows: “There is no question that the evidence amply supports the verdict and judgment but, regrettably, we find in the record several incidents which should not have occurred in a fair and orderly trial. At least two of such incidents are matters of such grave moment as to amount to substantial departures from the established elements of a fair trial, to which every person charged with crime, no matter how rich or poor, virtuous or debased, is entitled. When a defendant has been denied any essential element of a fair trial or due process, even the broad saving provisions of section 4 1/2 of article VI of our state Constitution cannot remedy the vice and the judgment cannot stand. [Citing cases.]” (Italics added.)
The federal statute on the subject is substantially similar to article VI, section 4 1/2. The leading case interpreting the federal statute is Bollenbach v. United States, 326 U.S. 607 [66 S.Ct. 402, 90 L.Ed. 350]. At page 614 appears the following:
“In view of the Government‘s insistence that there is abundant evidence to indicate that Bollenbach was implicated in the criminal enterprise from the beginning, it may not be amiss to remind that the question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedures and standards appropriate for criminal trials in the federal courts.
“. . . The ‘technical errors’ against which Congress protected jury verdicts are of the kind which led some judges to trivialize law by giving all legal prescriptions equal potency. . . . From presuming too often all errors to be ‘prejudicial,’ the judicial pendulum need not swing to presuming all errors to be ‘harmless’ if only the appellate court is left without doubt that one who claims its corrective process is, after all, guilty. In view of the place of importance that trial by jury has in our Bill of Rights, it is not to be supposed that Congress intended to substitute the belief of appellate judges in the guilt of an accused, however justifiably engendered by the dead record, for ascertainment of guilt by a jury under appropriate judicial guidance, however cumber-
The rules announced in these cases have been violated by the majority opinion. Such a violation of defendant‘s constitutional rights cannot be justified on the ground that a majority of this court honestly believe that defendant is guilty. The point is that defendant has not been found guilty in the manner required by law. This defendant, under our law, is presumed innocent until found guilty by a jury after a fair trial. The right to a fair trial is as important as the right to a jury trial. It is not sufficient to substitute for the constitutionally protected right to a fair trial the honest belief of a majority of an appellate court that the jury could, and probably would, have convicted without the inadmissible evidence. We cannot and should not substitute trial by appellate court for trial by jury.
The judgment, in my opinion, should be reversed.
A petition for a rehearing was denied July 9, 1949. Peters, P. J., voted for a rehearing. Appellant‘s petition for a hearing by the Supreme Court was denied July 21, 1949. Carter, J., and Schauer, J., voted for a hearing.