*1 Apr. In 29, 1958.] No. 6147. Bank. [Crim.
THE PEOPLE, Respondent, LYONS, v. LOWELL
Appellant.* *Reporter’s previously “People Note: This case was entitled ’’ Ferguson. *7 Cantillon, appointment
Eichard H. under the District of Appeal, Court Cantillon, Cantillon & Michael Cantillon E. and Appellant. James Cantillon for P. Brown, Attorney General,
Edmund G. Elizabeth Miller and William James, Deputy Attorneys Eoll, General, E. Ernest S. (Los Attorney District Angeles), Jere J. and Fred Sullivan Deputy N. Whichello, Eespondent. Attorneys, District (hereinafter
SCHAUER, Lowell Lyons J. called defend ant), Pope Ferguson, charged Paul were indict and James (count ment 1) conspiracy burglary to commit and to receive Ferguson stolen were property; fur charged ther ing (counts through 6) with five counts receiv property. Ferguson pleaded guilty charged
stolen probation depart his count cause was referred only ment for a report; appearance at the was as trial prosecution. Pope pleaded a witness for the and defendant guilty. Pope during went to trial with defendant but against the trial (conspiracy) the one count him dis People’s missed motion he was called as witness *8 prosecution. for the juryA guilty found defendant not 1, under counts guilty charged (receiving in counts 5 a watch, stolen (receiving a Rothenberg) and property of Aaron Handy).† Thomas Donald property of coat, fur
stolen state in the terms to concurrent was sentenced includ error, assignments of prison. presents numerous He to cor evidence insufficient ing there the contention that rea For accomplice-witnesses. testimony of roborate the the matters have concluded stated we sons hereinafter complained are detailed, either subsequently by defendant, mis in a result circumstances, did or, not error except that 4½), VI, justice (Cal. Const., carriage of art. § only count one have been sentenced defendant should receiving goods. stolen prosecu- for the Rio, witnesses and Dann Ferguson, Pope, of their possible view according to a accomplices tion, were- if the crimes instructed testimony. were own were witnesses by anyone, then these charged were committed testimony of law and accomplices a as matter be must with distrust accomplice viewed an is to be corroborated. inculpatory apart there is evidence from the To show that summary
testimony accomplices we first set forth inculpatory himself of such evidence. Defendant testified practice largely lawyer in the as follows: He was represented Ferguson, He of criminal law. who was field conspiracy. charged in a federal case with On number of accompanied Ferguson in the latter’s occasions defendant defendant would drive because he car; on such occasions Ferguson “was ex-convict and couldn’t drive knew that Through Ferguson legally.” defendant met an automobile Pope England. Through the alias of James under James ‘‘ ’’ repre- Rio England met Dann and undertook to defendant gave Rio as a $100 in a narcotics case. defendant sent Rio Subsequently Rio informed that he was retainer. and, according additional fee to defend- to raise the unable night April (the trial, at the ant’s arrest), Rio night “handed me that watch before defendant’s ought subject and told me it to be worth of count 5] [the although I had a fee . . . and watch off the $50.00 accept Rothenberg, watch from Mr. Rio.” Mr. I time did watch, that it was stolen from testified owner of during his burglary committed absence sometime in a house Hooper April April 7, 1955. Officer 2 and testified between dismissed. †Count was *9 shortly city after questioned hall
that he defendant at property arrest; defendant’s “I asked him to remove in the put property desk; on pockets; from his he him property poeket a I asked was man’s Helbros watch. he gotten his, was that watch, where he had this he it said had had it for some time.” 6, receiving coat,
As to count a fur the corroborative stolen that evidence is The of the coat testified as follows: owner evening April 7, it OfficerRoberts was stolen on the 1955. morning April 8, 1955, defend- testified that on the he saw carrying bag “PAA”; ant a blue on which were the letters bag accompanied was “stuffed full.” was carrying They who Ferguson, was beer carton. entered “ [Tjhree Crest Hotel. or four minutes” after defendant Ferguson and the hotel them to the entered officers followed room of that he one Gallo. O’Hara testified and Officer “said, other officers entered Gallo’s room. Defendant ‘Who you?’ police said, ‘I am a I ‘You are said, are officer.’ And said, said, arrest.’ And fori’ And ‘For under he ‘What I ” investigation of stolen articles.’ The beer carton was on lay piece (not subject 6). the floor. On it a fur of count opened bag, Also the floor was the closed. blue An officer subject and it it found in the fur is the of count coat which three white shirts. Defendant testified that at least two of the his; shirts were put he that had them in the automobile in which he drove Hotel; my to the Orest and that “to knowledge” they were not in Hooper Gallo’s room. Officer testified when, shortly after defendant’s arrest, questioned the officer defend- city hall, Lyons ant in the “I asked Mr. about the fur coats been room, had found in the he said that he hadn’t seen any coats, fur didn’t know what I talking was about.” accomplice Ferguson testified follows: He met de- in November, Pope fendant 1954. got Thereafter in touch Ferguson met him about a dozen times when de- present. April fendant was On 7, 1955, Rio, Pope, Ferguson, present and defendant were at a Pope conversation when “stated get how much he would like to from that fur coat” (the subject 6); of count “for the fur pieces coat and three jewelry he stated he would bring like it to $200.00.” The morning Ferguson next took fur coat a beer carton and defendant took the fur coat which subject is the of count 6 bag in a initialed “PAA” to Gallo’s room. Gallo “asked supposed how much he to ask” Ferguson for the furs; $1,100; try get much, he said “said he would Gallo parties wouldn’t know until he saw his on the other end in and police . came line . . About time the officers arrested us.” county jail Ferguson
In February, 1955, while the jail Erwin, he heard of one Newton was also in “andI who sympathy to make bail man, sort for the and he wanted though it seemed as to make he didn’t have collateral *10 Lyons thought a bail. ... I told that I Erwin was Mr. Mr. very gentleman anything nice . if , . . and there was we could do to further his bond I would like to do it.” At a subsequent broker, among Davila, conversation a bail Mr. bond Ferguson agreed it Lyons, and that fur coats obtained Pope “put up from would be as collateral for Mr. ... bond,” Erwin’s and this was done. Ferguson negotiated coat, a fur further described the sale of by Ferguson proceeds defendant, and to a The Mr. Millin. Pope. of the sale were turned over to testimony Millin, respectively,
Davila and corroborated the Ferguson concerning the transactions with them. accomplice Pope 17, The On March testified follows: by Ferguson 1955, he was to whom introduced years. presence Pope he had known for 12 In defendant’s to dis- “stated that I numerous articles which I wished had pose Ferguson the matter of. . . . Mr. stated he could handle [Ferguson] several furs for me. ... I advised I had Paul “any jewelry.” There was and numerous small items of from.” these articles came On mention made as to where Pope defendant, turned presence March jewelry Ferguson “stated Ferguson furs. over to and meaning expression holding slang a . . That is he was not . good a break give them that I would broke. ... I stated “ general deal,” is, the course $200. on the [I]n hot . that I brought that I was . . conversation it was out concerning “general escaped.” conversation” There stay pos- as low as Ferguson me to burglaries “advised and keep escapee, . . . and sible, in the fact that I was an view of was con- minimum.” There myself to a the heat on down Pope for under obtaining concerning identification versation England a of $50. cost the name of James Ferguson, defendant, Pope, and meeting among At a third Ferguson Pope to ob- paid Pope $50 handed Ferguson $200; Pope de- identification; and license and other tain driver’s Ferguson. jewelry furs to livered and subsequent meeting among At a Ferguson, defendant, Pope, Ferguson Pope receipt ap- and for delivered plication Ferguson fee for a driver’s license. Thereafter Englund” Pope. delivered the license the name “Robert Pope burglaries Thereafter various committed and stole jewelry Ferguson furs and and delivered some of them to presence the guson of defendant. He delivered stolen furs to Fer- presence “perhaps in defendant’s four” occasions. Among subjects the items which he stole were the counts 5 and 6. He stole the watch fur coat which are the and subjects April 7, 1955, those counts on and took them apartment. Ferguson Pope Rio’s gave defendant arrived against defendant the watch “as an fee additional $25.00 Mr. Rio’s bill.” accomplice April 7, 1955, Dann Rio testified that on
he, Ferguson Pope defendant, in Rio’s had conversation apartment money “with reference to how much we wanted pieces for agreed the fur . $200 . . on the sum of [W]e it, ject jewelry.” that and some The fur sub- coat which is the put bag count was in a blue initialed “PAA” and put from carried Rio’s apartment; Rio did not remember who bag apartment. the coat in the or who carried it from the concerning sufficiency The rules of evidence to cor- accomplice roborate the tion of an are as Sec- follows: *11 part: 1111 of the Code, provides, Penal in “A conviction upon testimony cannot accomplice it be had the of an unless be corroborated such con- other evidence as shall tend to offense; nect the defendant with the the commission of the merely corroboration is not com- sufficient if it shows mission of the offense or the circumstances thereof ...” The evidence need not corroborate the accomplice as every fact to which he testifies but is sufficient if it does require interpretation and direction from the accomplice yet of the tends to connect the defendant with the commission of the way offense such a reasonably may satisfy jury accomplice that telling is truth; it implicate must tend to the defendant and therefore must relate to act some or fact which is an element of the crime but necessary it is not that the corroborative evidence be suffi cient every in itself to establish element of the offense charged. (People (1958), v. Brown 577, 49 Cal.2d 583-584 People [1, ; MacEwing P.2d (1955), v. 45 Cal.2d 2] [320 5] 218, [2, 3, 6, 223-225 People 257]; P.2d v. Santo [288 7] (1954), 43 319, Cal.2d 327 [4, People 249]; P.2d v. 7] [273
258 Simpson (1954), 553, 43 [4, Cal.2d 563 31]; P.2d 5] [275 People (1953), 57, [5, v. Gallardo 41 Cal.2d 62 P.2d 6] [257 Barclay People 29]; (1953), 40 146, [13a, v. Cal.2d 156 14] 321].) P.2d [252 attempt does not controvert the that evidence possession the watch been stolen and was in defendant’s session of stolen corroborative evidence watch (1954), time had been 126 of his arrest, Cal.App.2d 274, stolen. property, to show but contends that accompanied by 278 As [4] guilty knowledge stated [271 P.2d there People no explanation, insufficient v. that “ [P]os Lopez unsatisfactory explanation or an of the or possession, justify suspicious circumstances, will an inference that knowledge they goods that were received with had been applied generally stolen. The rule is where accused is they possession of the articles soon after were found “ questions False or evasive answers to material stolen.” ownership property to the of stolen tend reference with prove (People Reynolds knowledge.” (1957), v. 149 such People ; see also Cal.App.2d 290, 294 P.2d v. [2] [308 48] People 88, 547]; 90 Boinus (1903), 141 P. v. Cole Cal. [74 ; Cal.App.2d 618, [1, 2, (1957), 621-622 P.2d 153 3] [314 787] Cal.App.2d 697, (1955), [8, 707 People 135 v. 9] [287 Malouf 659, People Hartridge (1955), 834]; P.2d Boyden People (1953), Cal. 72]; P.2d 665 [6] [286 773]; 278, v. Jacobs App.2d [12, 13,14] [253 770].) Cal.App. 334, [2, P. 339-343 (1925), 73 [238 4] statement jury could find defendant’s shortly arrest, the watch “was after his police officer, consciously for some time” was he had had it his, that the authorities misleading explanation. Under evasive guilt to show consciousness sufficient above this is cited watch received that defendant justify an inference Wayne (Cf. People v. knowledge it was stolen. with It fol [4, (1953), 5] Cal.2d to connect defendant tends evidence such lows that requirements and satisfies of the offense the commission (1954), (People v. Santo Code. Penal of section 1111 [9].) 319, 327 supra, 43 Cal.2d subject of count 6 is the which coat the fur toAs he hadn’t falsely “that stated find could *12 talking about.” was I know what coats, didn’t any fiir seen that defendant to believe fact entitled of was trier The circumstances, suspicious possession under in his the fur coat questioned yet, concerning no possession, when that offered explanation falsely innocent rather the fact of but denied possession. possession Denial if goods, of the such denial persuasive tending is to to false, shown be is a circumstance guilty knowledge. supra, (People Hartridge (1955), show v. Cal.App.2d 659, People Boyden (1953), supra, [6]; v. Cal.App.2d 278, [13].) It is that true much of the above was evidence stated But, controverted. People (1949), as stated v. Henderson 34 Cal.2d 346-347 “When as in 785], P.2d [6] [209 present testimony record it is discovered that there is aside accomplice from that of the de which tends to connect the fendant with the crime, commission of function appellate performed. Questions weight court is of the credibility the evidence and the for the witnesses are court, reasonably trial justify and since the circumstances finding of guilt, opposing they may an view that also be Newland (1940), reconciled with innocence issues of fact, we would stolen and cases (1953), to judgment This is just property 40.Cal.2d cited.) resolve the conflicts we were when true also as to uncertainties in our defendant was appeal.” to 15 Cal.2d 876, 885 [4, duty Ferguson. in the will Regardless if not 5] [256 present 680-684 (See People appellate warrant when how we [1] initially function is clear. interference with Pope’s 911]; Pope might Daugherty trying delivered think during People’s Officer Roberts testified case chief Ferguson when defendant and went into the Hotel Crest Lyons carrying Ferguson “Mr. was box and cardboard Mr. carrying handbag a blue was with the letters PAA on the question, Then in bag side.” answer “This blue you say Lyons carrying, appear anything was did it to have answered, “Yes, in it?” the witness it was full.” stuffed On testimony, stating rebuttal Officer Roberts corrected his Lyons carrying bag “Mr. blue PAA, with the Ferguson objected Mr. the box.” Defendant’s counsel testimony. said, apparently this is rebuttal He “There why conflict, these we had witnesses excluded. order exclusion witnesses from the [There they testifying.] bringing when courtroom were Now he is ’’ testimony. changing him back witness is explain any ruled, “If the witness mistaken court wants *13 260 may made, error, he this time.” made in do so
statements Roberts on rebuttal testified cross-examination Officer On Hooper night testimony rebuttal Officer that on the before his in mistake that the tran- called his attention “to the script.” “After admit asserts that Roberts Defendant Officer sequestering trial ting that he had violated the court’s order testimony Sgt. with witnesses, in that he had discussed his testimony appraisal changed respect.” Hooper, his in this change
of in the effect of this on Officer Roberts’ credibility was for the trier of fact. urged guilty as of not verdict guilty conspiracy of was inconsistent with the verdicts count charged among overt acts as to counts 5 and 6 because conspiracy possession by defendant of in the count were the subjects and 6. which are the of counts 5 articles “ authority overwhelming weight is of [T]he conspiracy acquittal of to commit of a defendant crime prosecution subsequent of said de crime is not bar to though crime, even said fendant the commission of said People MacMullen place prosecuted act committed crime is v. alleged Lyon and cases cited [conviction for the main (1933), in in the (1955), furtherance double 218 conspiracy 135 Cal. jeopardy crime].) of 655, indictment 656 when he conspiracy.” of [1] conspiracy 558, 586 as the sole overt It [24 subsequently follows (People [19] does not 793] [288 v. ; conspiracy inconsistent convic acquittal of is not here receiving goods. of stolen De tion of substantive offenses goods guilty receiving fact, stolen could, in be of fendant (Cf. People v. having conspired to receive them. without Keyes Cal.App. 624, 632, (1930), P. [284 Hooper defense counsel of Officer cross-examination On “Now, many April, from 8th of asked, times how Pope?” objection that day you An Mr. to this talked scope of examination” was sus- direct this was “outside the proposi- “it is on the limited stated, tained. Defense counsel offering prejudice” it—bias, am tion of motive that I ruling In his think the will stand.” replied, “I the court Hooper] he had con- asserts, “That brief defendant [Officer times, Pope number of wined an unusual tacted the witness prejudice.” go to show that him would dined with proof in an offer of not make However, defense counsel did attempting an unusual to show he was trial court that type or meetings Hooper Pope; number between Fredeen District attorney In the people point 430, 433 tions. not to against crimes. on his premises] is not Haley offer the information that 102 849]; or not defense counsel’s [293 Defendant’s sustaining occasions Cal. guilty *14 Cal.App.2d P. to People Where the prosecute course of his [an it It is our proof bring up right Attorney’s 883]; [110 (1950), is material, stated: attorney of bringing charges prejudicial see contention that McDonald show its 308, people just duty [19] objection question Hooper might only question “Remember, People who argument office Hooper Cal.App.2d 313 ordinary to now, but it is not the permitted Ferguson on trial materiality. misconduct is likewise without merit. protect questioner, to [6, does not show v. Brown (1930), P. thereto, must for go talked with 987] against 8] to the course ladies the sake here. around 105, 107-108 [227 ; deputy (People jury in order to claim error (1941), citizens of the them. Our duties are Cal.App. P.2d Maybe recklessly reframe of Pope to district making prosecu- 521] its gentlemen, Monson function of deputy store this is a [4] [224 Singh investigation. aon face whether have elicited ; it People indicting property attorney or make 187 [3] number County district (1951), (1920), good P.2d Mr. v. Haley actually “If the evidence that Mr. disclosed had possession property, knowing stolen, of that it to be then the Jury might Haley. they Grand have But indicted Mr. did any Haley not. Do we have evidence that Mr. associated with Pope Lyons? Ferguson, against Mr. and Mr. as we have Mr. any Haley we have homes, Do evidence that Mr. went to their against Lyons as we have Mr. ? Do we have evidence that Haley against mouthpiece, Mr. acted as their as we Mr. Lyons Haley party ? crime, proper govern- If was a Mr. to a agencies right mental that, will take care of but now arewe only Lyons. they concerned say, Mr. And when ‘Here attorney is another who all In I am words, did this. other only person dipping my Why not the fingers into the till. you only get Well, don’t people?’ these other he is the one anyone here on trial and we are not else.” concerned with (Italics added.) Although objection trial, no made defendant now portion the above statement contends italicized prejudicial implied in that
constituted misconduct it to the extrajudicial deputy attorney district knowledge guilt. defendant’s As stated Berryman (1936), 136], “The 6 Cal.2d attorney of the general regarding misconduct district rule likely prejudice is to to the de which tends to and result objection is miscon fendant is that no made such where objection defendant, or where is made and duct objection properly jury, admonishes the court sustains the rights prejudicial the misconduct claimed be defendant’s grounds justify granting sufficient to will not furnish a judgment. of the trial or the reversal new [Citation.] exceptions general rule. are two to this is There One grave closely is balanced and there doubt where case guilt, are and the acts of misconduct such of defendant’s materially miscarriage verdict, to contribute requiring justice a reversal. The other results [Citation.] exception act or remark made is such is where the done harmful be obviated or cured that a result cannot character by any In retraction of counsel or instruction of the court. ground the misconduct will furnish reversal cases such given by proper even where admonitions are judgment, prosecutor has Whether a the court. [Citations.]” prejudicial must be guilty of misconduct determined been *15 particular light involved. Previous the authority of the factual situation say help. that the of little it to conduct is Suffice attorney ap involved, not deputy here did of the district extraordinary in such eases misconduct revealed proach the People 719, (1952), 39 Cal.2d 723-724 v. Kirkes [249 [1-4] Cal.App.2d People 172, 173 (1956), 142 1]; v. Vienne P.2d (1955), Cal. People 136 ; v. Teixeira P.2d [2a] [297 1027] People App.2d ; Talle 136, P.2d v. 147-148 [288 535] Cal.App.2d 633], 650, P.2d (1952), 673-677 [245 [8-12] Hale is this a ease such as defendant. Nor cited where the the (1947), objections to to sustain defendant’s trial court failed prosecuting attorney and made improper of the statements classify prosecutor’s remarks tended to the which comments testimony to the inferences be of the as a summation therefrom. drawn just making above subject before the case, In ques attorney posed the deputy district quoted remarks, Haley prosecution “Why here tion, isn’t Mr. [a witness] apparently question as a related defendant?” This rhetorical attorney argued that “The back to the fact that a defense only Haley putting reason is is Mr. immunized is because he Lyons argued in this ease.” The other counsel Mr. defense Haley Pope. . Yet that “Mr. he had all this said he did not know . . Mr. property Pope stolen, . . he had . Mr. had Haley it all plice, his house.” an accom Whether or Mr. implicatory. the fact is that his Thus was not prose portions when considered in context the italicized appear scope remarks proper cutor’s fall to within argument implications as an answer to the of defense counsel Haley prosecuted should have been and to constitute clarify attempt jury might to for the matters which (Cf. People (1948), Cal.App. confused them. Perkin Any 2d 367-369 to the inference [2] [197 deputy attorney extrajudicial effect district had knowledge susceptible certainly guilt slight of the defendant’s is and was to cure admonition. foregoing The equally applicable remarks are to other statements, below, set out which defendant contends indi- jury prosecutor extrajudicial to cated knowl- edge guilt. of the defendant's argument attorney
In his the district also only stated: has insinuation, “And there been People’s insinuation that all of the witnesses who accom were plices any way or in defendant, connected were plead guilty only allowed to or one two Counts. Ladies and gentlemen of jury, matter, believe, that is a I common knowledge, against if there are or four Counts three defendant, permitted plea some to defendant is take days or one more of the Counts. even after three And they trial plead allowed Mr. Moeekelto guilty to two Counts Bobbery. Why? It obvious. In his Judge sentence the made the run concurrently. Why sentences try him on two or three or four Counts when he can be guilty found on one pleads Count, guilty or when he to one or two ? Counts Judge made the run concurrently. sentences we took If plea against Pope two Counts against and one Count Mg receiver, Ferguson, Mr. Lyons we will Mr. offer same consideration. time during this trial he wanted If plead guilty Count, to one or he would like to do so even *16 if give now, we will him the same (Italics consideration.” added.) The court objection sustained defendant’s to the portion prosecutor’s italicized remarks and instructed regarding disregard jury of counsel “to statement now accept plea Lyons.” from Defendant Mr. offer to the error. to cure argues was insufficient that the admonition above, the conten- light indicated of the circumstances In the merit. tion is without closing argument concluding phase of his In the jewelry of the attorney “And some deputy stated: district is because we reason for that in And the is not evidence. other fur Lyons’ connection with not show Mr. could coats or with the this jewelry. The fur coat carried other carried Mr. but fur coat bag, here, that is . . . and can we Ferguson box here because in that cardboard is not . . . that fur coat. Lyons’ with connection show Mr. because we could furs are not here is the other The reason no Lyons Defendant made them.” not connect Mr. implied the remarks objection now contends the time but knowledge personal prosecutor had to the merit. Defense guilt. contention is without The defendant’s counsel had jury’s fact that to the called the attention earlier been intro had not to items referred certain deputy district of the remarks into evidence. The duced attorney jury why explanation such legitimate awere if assume we should Even had not introduced. items been be said improper cannot their substance remarks were materially verdict. contributed to have deputy attorney argued district also as follows: anyone evident, gentlemen, “But it is ladies and if given Depart been
would have consideration the Police policeman. They ment, it have been the would son aof former against policeman’s not discriminate would trary, son. On the con they gone it seems to me all would have out every give possible. him break attorney Cantillon “Mr. referred [an defendant] ‘Inspector Lyons’ but I don’t his know what father was. certainly But I do know that the evidence has shown the chip (Italics added.) old defendant is not off the block.” objection interposed no but now contends the portion prosecutor’s remarks of the amounted to italicized personal guilt. belief defendant’s How- avowal prosecutor of the are a mere assertion ever statements “evident” or has of what he claimed was that “the evidence certainly shown,” were made in answer to coun- defense the effect that defendant incurred the sel’s assertions to police department by bringing several suits wrath
265 against police “settle” its members and the out to were appears for in this defendant “once and all.” No error instance. urges deputy Defendant also the district attor that ney referring prejudicial committed twice misconduct accomplices. “mouthpiece” the No defendant as the for his objection interposed The carries was at the trial. term unsavory persons. many in of Its use connotation the minds improper However, under was and should not be condoned. case, appear the of facts this it does not different deputy probable verdict the district would have been attorney its use is not not used the follows that term. It ground (People (1956), Watson 46 Cal.2d for reversal. v. 818, 835, 243].) 836 [12] [299 Defendant contends that he was denied a fair trial in attorney superior that the district and court coerced the accomplices testify untruthfully against him. This claim is not appear substantiated the record. It does the accomplices pleaded guilty charges against brought to certain them postponed and that sentencing the court their from time to time they until after prosecution had testified for the against brought upon defendant. This fact was out cross- prosecutor examination frankly jury and the admitted to the accomplices “inducements” had been offered the their for testimony. obviously promises The “inducements” were of reduced go sentences. These facts to the credibility, not the competency, accomplices’ testimony. (People of v. Pan tages (1931), [8, 9, Cal. 252-259 P. 10] [297 They powerful furnish weapon the defendant with a attacking credibility inherently of suspect witnesses but since fully apprised were of the facts and sec tion 1111 of the Penal Code was satisfied, we cannot hold that the trial is shown to been unfair in fact or in law. however, urges proffered Defendant, that since the leniency obviously accomplices’ was on the conditioned first testifying against testimony defendant, worthless was People as a law, relying primarily matter of on Green (1951), 102 cases therein promise in immunity discussed. But that case the of accomplice’s testimony resulting conditioned on the in recognizes, conviction case defendant. Green page practice which Cal.App.2d, that, “It approved justice in if jurisdictions, seems to be all the ends will be than the immunity knowledge of arose.” fairly cause should be trial inducement that it would incredible “When charged follows accomplices’ testimony, (1938), 27 Defendant relies promises maintenance of the may as a codefendant who thereby served, to extend There is to his accomplices testifying fully from as to result serve for him *18 Cal.App.2d 583, crime, knowledge be better leniency prosecution accomplices’ promptly nothing to intimidate the witness facts out of which the upon to color his upon to were conditioned practice, action the statement ineompetency. condition that dismissed in reward have coconspirator testimony.” We facts out of which against present promptly lending credibility to the [7] immunity to one against for his [81 case him he fairly charges testify fully him. sentenced and furnish has been offered to indicate that throughout anything testimony, so may Otherwise, inherently arose. Walther jointly assume charge them, other their the the an It so failure so to do was serious but cannot believe that we a fair trial. deprived of a matter it defendant complains Defendant of the trial court’s failure to sus grant objection to, strike, tain his his and to motion to testimony Kurrus, process Joseph server for the district attorney. subpoena that he Kurrus testified twice served person Gallo, on Ernest in room was whose defendant arrested, appear again attempted trial, to at the that he and appear to him serve but him. could find did not Gallo attorney argument said, at prosecuting the trial. The in “I up would to have some like had Mr. Gallo here ... to clear in the we story, inconsistencies defendant’s but ’’ although him, diligently. been unable to locate we have tried presented argues testimony that Kurrus’ was to Defendant jury suspicion and east on defendant confuse testimony implication that would be favorable to the Gallo’s testimony clearly prosecution. ma would have been Gallo’s showing Although is no that it would have been there terial. prosecution prosecution, the was entitled to favorable to the any question why produced, to explain was not forestall Gallo why as to might in the minds Gallo which arise People (1895), testify. (See Clark 106 Cal. did not Cal.App. 544, (1934), 140 53]; v. Schunke P. [39 trial erred in complains court Defendant permitting questioning Hooper, rebuttal, of Officer reading transcript portions him from a to of a conversation asking and him show whether conversation occurred. To contrary extrajudicial defendant to made statements his following on cross-examination occurred being questioned He on defendant: was asked if he recalled April 8, p. presence about m. Hr. Gallo O’Hara, Hooper Officers Farquarson, Scheidecker, that he if answered then asked he did. following portion recalled the conversation: “Hr. Gallo a statement, ‘Now, made Gallo, and after that O’Hara said you brought told you us that them them he over to have sell right. for him.’ And said, thought ‘That’s At first I Gallo the coats fact, they were not think stolen. In I didn’t were jeopardizing stolen because I think didn’t he would be him- you self.’ And said, said, ‘Of course not.’ And Gallo ‘I didn’t they tell him where they came from, because I know didn’t where laundry you thought came said, from.’ And ‘I laundry?’ Farquarson the box.’ And said, ‘Whose And ” you ‘Ferguson’s only said, laundry.’ answer which gave question quoted was, to the above “I never laundry’ Hooper ‘Ferguson’s said time. said that.” por- following Defendant was if asked he recalled the try tion of the conversation: “Then said: ‘Don’t Gallo put me,’ Hooper you: and then ‘Is blame said *19 lying affair, this man about the whole then?’ ... You said: ‘Now, look, may thoughts it, the man have had about man liar, is a but I a with him did not have conversation about ” selling say answered, furs.’ that, “I did not [Hooper] no. He a liar called Hr. Gallo damned at that time.” rebuttal, Hooper On when Officer testifying, prose-
cuting attorney identified foregoing conversation and “During asked, questions conversation, that sir, were the following following asked and the given-” answers objected ground Defense counsel leading “that that is suggestive.” objection and was overruled and exam- proceeded ination as follows: “Q. By [prosecuting attorney]: Lyons Hr. Mb. Stovitz said, thought laundry ‘I box,’ was in that Officer Far- quarson said, laundry?’ Lyons ‘Whose And Mr. said, ‘Fer- guson’s laundry.’ questions “Were those Lyons asked and did Hr. say, * n ‘Ferguson’s laundry?’ he Yes, A. did. ‘‘ following During sir, ques- Q. conversation, were the answers, Lyons following make the tions asked did Hr. Lyons hearing statement, ‘No, made the I recall Mr. don’t try put it,’ said, ‘Don’t the blame on me.’ and Gallo lying you Lyons, ‘Is this man about this And said to Mr. Lyons said, ‘Now, look. The man affair, then?’ And whole may thoughts liar, about The man not a but it. selling I a with him about furs.’ not have conversation did That is ob- “Mr. Richard [defense counsel]: Cantillon jected improper cross-examination. to as It is rebuttal. “The Court: your rebuttal, Honor. I asked Yes, this is “Mr. Stovitz.- Lyons question. Mr. ‘No, Lyons time, at that “Q. make that statement Did Mr. thoughts may about it. The man have had now, look. The him but not have conversation liar, man is not a I did ’ selling furs. about your Honor, on object that, will “Mr. I Cantillon: why suggestive. I know leading and don’t ground it is reading isHe what was said. just ask the officer we don’t every transcript answer ‘Yes’ all he does is . . . and a from a n timehe asks question was not question. . . him . [This answered.] following questions asked By Were Mr. Stovitz: “Q. following answers—you, Mr. give the Lyons did Mr. you that he knew ‘The first Hooper, made the statement: this darker-colored you saw than one fur was when had more fur?’ following place.’ morning my said: ‘The at “Mr. Gallo you nodding your you head, ‘I are Mr. “And said: see story?’ Lyons. you agreeing that mean are with the Does long Lyons ‘No, no. We had conver- “And Mr. said: Wednesday night. A was had about sation that many possession discussion subjects. my never had these two items different I just having time. We were conversation. Ferguson for sale. had them in the I never offered those Ferguson had.’ box. I don’t know what made, Yes, it was.” “Was statement sir? A. confusing, and the questioning was somewhat While apparent strictly rebuttal, it is not all rebuttal is so-called regard. prejudiced in this have been could not *20 and testified that on rebuttal ’Mara called was Officer tran and that the question was recorded the conversation attorney read-as prosecuting from which script thereof quoted typed by presence. above a clerk in Ms Without objection affirmatively question he testified whether thought made Ferguson’s statement that he laundry inwas the box. On following cross-examination of O’Hara the occurred: “Q. you Can tell me through who a line drew the name Lyons before the words, thought semi-colon and ‘I laundry box,’ (Showing was in that sir? document to the straight witness.) through Who drew this line the middle of Lyons? the word A. I don’t know. “Q. paragraph opposite Who wrote out in the that state- apparently ment and erased the word ‘Gallo’? A. I don’t my writing.” It is know. complains transcript Defendant that the was altered. But nothing in there is the record which shows tran- script was not altered to correct it so that it would reflect the truth. transcript Further cross-examination defendant from Armstrong questioning Hooper of his Officers and concerning the questioning
further cross-examination of de- presence April at 4 o’clock on fendant not have been error Gallo’s could prejudicing defendant. prosecution wilfully sup asserts that finger print pressed “vital evidence.” The factual basis accomplice Pope this is as contention follows: The testified paid Ferguson Ferguson that he a total of $100 for which Pope obtained a driver’s license for under the name “Robert Ferguson Pope Englund”; person told that “a who my general description” applied answered license; had present for the Pope during believed defendant was some obtaining conversations which led to the of the false license. request The license received evidence at the of defend People’s ant but as a marked exhibit. Defendant called Offi Hooper negatively questions cer to the stand and he answered print an whether he had caused examination the thumb signature on the license to be he made and whether print handwriting appeared thumb idea whose there you question you To “And as there on. sit now have no application?” Hooper testified, idea who wrote Officer prosecuting attorney “No, said, I don’t.” The “That’s objected your to, Honor, being immaterial unless he has all an idea as who caused it. We idea after listen ing ruled, “Well, to the evidence.” court the answer may stand.” *21 position People suppressed It is that the defendant’s the print that of that the thumb was not defendant and evidence prosecuting attorney, statement, have “We all listening evidence,” implied that the after to the idea print argument that is mani- thumb of defendant. This was
festly implication appears the merit. from without No such attorney's listening to prosecuting statement; rather, “after Ferguson the appear it that obtained the evidence” would Pope application person for of an unidentified license general description.” [Pope’s] . . If de- “who answered . thought any implication thumb that arose that the fendant print offering prevented his, he from evidence was was not. that it was Hooper previously stated, testified that when Officer As questioned it about the watch he “said was was defendant for time.” testified his, that had had it some Defendant he make such a defense that he did not statement. On Hooper he that testified cross-examination Officer counsel’s interrogation but that he did of defendant was recorded the transcript concerning the of the conversation not have a subject of Asked the is the count 5. whether which watch Hooper concerning recorded, the watch was conversation portion “No, that answered, I don’t know whether argues that “it manifest not.” Defendant recorded or suppress police, Attorney, District injustice for the and recording. Obviously, play-through it of would this supported Appellant, and his statement that the exonerated inherently improbable ... It is no such utterance. he made that this supposed . . part recordation was not made. . played produced record, was a it should have been If there jury.” support as- nothing in defendant’s the record to There is portion recorded this of the conversation was sertions that im- recording suppressed. occurred conversation and the police, mediately taken to the officeof after defendant was recording may of defendant’s well have been that and it In absence of some questioning had not commenced. charge tape re- support therefor, that defendant’s factual deliberately suppressed is not well taken. cording was jury were not in complains presumed private are to be fair transactions structed 19) Proc., and that the subd. regular (Code Civ. § embodying principle “gave instruction no court speak the truth that unless presumed is defendant presumption jurors destroyed the required are evidence, spoken that a has find defendant the truth.” The requested any record does not disclose that such defendant complains although instructions. But defendant there presented by concerning was abundant evidence his relationship persons connected with ease the gave covering court adopted by no instruction at all the standard to be weighing explanation. defendant’s *22 specifically It is true that there was no instruction directed explanation opposed to defendant’s of events as to that of jury length other witness. But the court instructed the concerning appraisal credibility Among the of the of witnesses. things jury presumed other the were told that “A witness is speak may the truth. presumption, This however, be re- pelled by the testifies; manner which he his interest the if case, any any, prejudice, any, against or his bias or if or for parties; of the of his testimony, character or ... by contradictory evidence.” “ repeatedly improper It has been held to be for the single particular charge jury court to out witness and to ” his (People how evidence should be considered. [Citations.] (1949), 885, v. McDonnel 94 889 P.2d [5] [211 People ; accord, (1932), Cal.App. 678, v. Emmett 123 910] 683 Quon ; People (1922), Cal.App. P.2d v. Foo 57 [7] [12 92] 237, 1028].) 241 P. [6] [206 requested Defendant’s and refused instruction that “The fact that an indictment has been filed ... is not to be by you proposition ... guilt considered or plea guilty innocence of this defendant” that the presumption innocence, by other, raises was covered more accurate instructions. complains following
Defendant of the refusal of the Attorney the District arbitrarily instruction: “Where has alleged co-conspirators or more selected one to whom he has immunity prosecution from tendered in reward for his [turn against ing] alleged State’s evidence collegue, such evi open is suspicion, dence and under such circumstances the testimony alleged eo-eonspirator of an should be examined great care.” The substance of this instruction was following covered given: instructions which were “ testimony accomplice ought of an to be [T]he viewed you may not mean arbitrarily with distrust. This does disregard you give testimony, such but weight should to it the
272 examining you it with care
to which it to be entitled after find ” light of all in the case. in the the evidence caution and “may speaks presumption truth that a witness be repelled by case, any, . if or his bias . . his interest against any parties. prejudice, if for of the ...” any, or or complains trial court not of did alleged “the admission motion instruct the its own guilt, establish of the not itself be used to defendant could corpus delicti of nor such admission be used unless could independently proved.” charged Defendant cites be crime People Frey (1913), P. where 165 Cal. 147 v. [131 fail as to “the court to to instruct it was held error for the true necessary But dependent reversible statements. Snyder sufficient the failure of the 2d (1939), 111 [4] [255 necessity it has been held rule We (1925), 74 The uncorroborated P.2d to establish the with reference where there was are satisfied of the [8] (People Cal.App.2d 9, prove the 79]; [107 court, independent proof People extrajudicial Cal.App. Clark corpus delicti, that in the circumstances of this of v. Chan Chaun corpus 455].) its failure 138, 143-144 (1953), evidence own [37] admission statements delicti. motion, to instruct [244 of the although independent of such Cal.App.2d 134, (1940), (People [5] to of defendant corpus accomplices confessions give 35]; error, is not the v. Pearson P. proof Cal.App. delicti.” subject *23 case in prejudicial error. not was instruction request complains the that without Defendant including the al guards exhibits, the took jury armed the legedly jury room; that this was property, into the stolen unfairly jury induced the which improper influence on only sup property was stolen. The that the them to believe entry following in argument the for this port in the record jury for its retires deliberations. minutes: “the the clerk’s with defendant and presence jury, the the Without his Attorney Deputy present, de the District counsel having objects jury exhibits with them and the to fendant jury from under be withdrawn the that the exhibits moves are all exhibits that ad is denied and The motion PC 1137. jury by the permitted to be taken are in evidence mitted jury room.” the retiring “Upon provides, the Penal Code Section 1137 (ex- may papers all jury take with them deliberation, for the People with them. Defendant’s had been People was In cause, or handing having told given Defendant concedes cept depositions) which have been received as evidence been done without late fluence on the 196, 198 regard jury. appears not room “armed argument, handed exhibits to are Here, be People not assertedly appear them that court rejected. [8] taken from the in Defendant contended v. would v. Hower prepared to made no assuming exhibits to evidence copies of [66 Mahoney (1888), introduced [2] says, “Assuming, v. Van Skander prejudice that such conduct could P.2d not any stolen exhibits they jury, In (1907), 151 justify a guards” that the exhibits were taken People request such hold could 1228], the specific request by person or could influence ought is shown and public evidence that such conduct was error. jury take the exhibits contention for reversal. without not, jury having (1937), 20 that was but not Morales were Cal. without Cal. exhibits, prosecuting records or in may also take it into jury in fact them 529, 531-532 the ’’ request clerk, that there holding, that exert (1943), the their Cal.App.2d 248, 255- opinion 645-646 error possible them to believe without handed them to private into the jury stolen. without the jury. any improper in- possession. attorney, by requesting them for this to have clothing into the was error room [91 error in this [20 request documents jury room any jury, P. P. It does during (citing appel in which court, . . 507]; 73]). error jury jury that the we .” contends that his motion severance Pope granted. of his trial from that of should been He complains challenges that the number of was psychological Pope’s arising effect of limited and testifying end the counsel table and from against defense damaging was to defendant. is no defendant There peremptory challenges showing that exhausted his defendant appear prej jury. Therefore, it he does (See regard. (1950), in this 98 Cal. udiced Griffin App.2d 1, 49 Nor do we be [25] [219 Pope prejudiced the fact that lieve testifying counsel table sat at the defense end before against Pope against 268 259, had been tried defendant. defendant. [6] [272 P. 816].) It should be noted (People *24 separately Pope (1928), Burdg could if defendant and 95 Cal.App. testified 274
State 3]]; if independent of the Lyons?” Morgan answered, “I couldn’t willing would support was property to receive stolen was of receiving Tex.Crim.Rep. sign, crime committed advance Lima defendant would ciently sack property. offenses is a payment proof in between the property defendant because Hooper said, ceiver not Morgan, an inmate of jail. Morgan conspiracy to commit and therefore could not commit the crime of grant him a new trial on dence contained Officer we assume that defendant and the burglary defendant with the found conspiracy pursuant permissible. 333-334].) Byrd v. him defendant (1944), (1932), not accomplices resolves Hooper resulting a that the Defendant asserts that to from himself. The [defendant] pursuant holding be Defendant relies not say defendant, as a pleading State stolen urges “we to exonerate 122 had retainer guilty 58 this approached him in the affidavit of one Robert Erwin Cal.2d pursuant It is defendant’s receive goods. proof conspirator from execution accomplices Defendant could that all “are Tex.Crim.Rep. guilty (1931), shows that defendant are left [211 burglary. to a property. argument against you Folsom, up you of count 6 of the indictment and the property pursuant and there remains some act to be done led established that prearranged plan it, S.W.2d conspiracy This the trial court to which a thief steals and delivers as a thief and cannot be convicted fur burglaries, to to believe any of legal upon ground rather than jury’s coat with defendant as could do should steal made the interpretation Tex.Crim.Rep. legal given a stolen (Evans refused [2], accomplices agreement while 207, there was a fatal variance services and 128 the Texas law position its be found to such effect verdict on its face suffi And on the was liable as a burglar, defendant. Defendant 209 participants [54 accomplices agreed he it. . Would commit v. State (1948), 152 newly defendant was following [3] [154 awas member but erred do that because plan.” of was to the common de of such S.W.2d if but, rather, [6] return . . in the offense or receiving of the evidence receiving as a guilty ]; discovered evi- mink coat property burglary that other McInnis v. transaction averments: man could conspiracy (People 96, failing from “hot” the coat. Morgan. as a re if S.W.2d you be county 98 would guilty stolen stolen hand, there part aof any [2, to Morgan that “I could insisted stolen.” When coat
275 Armstrong, who jail,” Officer put man in another lie never you belong in Folsom guys like said, “Wise present, also was your in- for you up there and end that by I’ll see God and twenty-four you jail within Lyons I’ll have formation together.” go you to Folsom can both then hours and to the effect his counsel and of defendant Affidavits newly and could not discovered foregoing evidence diligence time trial at the of reasonable obtained have been presented. were Morgan’s contradicting affi- Hooper of An affidavit Officer nation will tain one for davit more, 700, stantial where to reach subjects dence, cumulative ant. (1913), 23 [117 him of the two (People 703 P.2d it does conflicting the determination finding.” evidence, as there was It has been held [4] filed. 683].) different counts 5 Cal.App. not be disturbed [80 Peyton (1941), items affidavits are appear reasonably P.2d 138] (People conclusion meritoriously 92, 99 impeaching, 6, property that On constituted of v. [137 ; see also ‘ ‘ regarding Young (1938), upon filed, the 47 trial P. would which contends that a motion for a new Cal.App.2d 214, appeal 287].) only probable judge instant People have caused the are, respectively, question one criminal trans and if there is sub guilt 26 case, v. Kawasaki his of fact is Further this evi determi 224 defend receipt trial, sus [8] he action and that therefore should not have been sentenced accomplices on The evidence of the two shows that counts. originally defendant received the watch and the fur coat on single receiving Therefore, but one offense of occasion. although property goods shown, stolen were stolen duality sources, sentences, from different and the even they though per concurrently, are to run cannot ordered be (People (1945), 854, to stand. mitted Smith 26 Cal.2d ; (1953), v. Rob 858-859 erts [4-7] 941] Cal.2d [15-16] [254 objec this, In a situation as if such substantial justice thereby, this tive of would be served court could re judgments to both counts verse as order such consolidated, rearraignment for counts and remand the cause and for sentence sentence on con Inasmuch, appear however, it does not solidated count. prejudiced or the defendant will be here either the state by simple reversal as to one count and affirmance as to the other, finality adjudication thereby and as will be ex- pedited, procedure we conclude the latter is the more desirable. judgment For the reasons above stated the based on count judgment 6 is reversed and the based count and order denying a trial are affirmed. new Gibson, J., Shenk, J., Traynor, J., Spence, J., and O. MeComb, J., concurred. *26 agree CARTER., I cannot that there was J. I dissent. testimony accomplice as re sufficient corroboration of the quired by as of Penal Insofar the section 1111 the Code. only (count 5) concerned, watch we that there was is see reply for time watch some defendant’s that he had had the night from whereas, Dann reality, in he received it the before payment partial for as, according defendant, Rio attorney to show that fees. There is no evidence in the record of the watch defendant knew of the stolen character required by Penal Code. section subdivision 1 of the Lopez, relied 274 [271 entirely upon by majority, the a with an different was ease Lopez made ease, factual situation. In the the defendant possession concerning his of stolen several ansivers different property. only defendant’s state In the case at bar we have is ment that he for some time. 'There had had the watch given nothing it to him to contradict statement that was his by part payment attorney absolutely fees, and Rio of nothing that he of the character of the to show knew stolen watch. respect (count With to the fur coat 6), the record shows
that of two defendant’s soiled shirts bag were the PAA coat; bag fur the the was in the same room where accomplices. defendant was found with concerning testimony the The containing possession bag defendant’s of the the extremely fur coat is dubious. The first witness testified that accomplice carrying bag the had been the blue marked with the PAA; by letters thereafter the witness was contacted although OfficerHooper, sequestering there had been an order changed witnesses, and so that it then showed carrying bag that defendant had been the PAA which con- only testimony tained fur showing the coat. The in the record might knowledge have had of the stolen character accomplices. coat was of lengthy practically all of the sum- be noted that should It. of majority opinion consist of evidence in the mations concerning fur accomplices between various transactions receipt which defendant of jewelry or with the theft coats which would alleged conversations charged. All of the not was knowledge fur watch defendant’s tend to show such by accomplices and testi- were testified to were stolen was fact that defendant The mony not corroborated. surely found is coat was fur present in room where the of section called as that not such corroboration corroboration “and the it is declared where the Penal Code of offense the commission merely if it shows sufficient appears me that the It ...” or the thereof. circumstances “interpretation and requires corroborating evidence so-called accomplice” order testimony of the from the direction crime commission defendant with to connect the charged.
I find no substantiation in the record for conclusion majority reached the defendant “received single occasion,” watch and fur coat on and that there but one offense received the watch on involved. linking night April only testimony him, 7th. The even concerning slightest degree, in the to the fur coat was events April. nothing on the 8th There is whatsoever to show single part fur the watch coat constituted occasion or opinion single majority offense. in its endeavor to accomplice testimony that there was corroboration show *27 inculpatory say: this “To there is has to show that evidence testimony accomplices apart from of the we first set forth the inculpatory summary a of such evidence. himself lawyer practice largely He a testified follows: as represented Ferguson in the of criminal law. He field [an charged conspir- in a federal case with accomplice], who was acy apparent is majority . It . the [etc.] consider fact represented the that defendant corroborating criminals as accomplice testimony. evidence of the is, of course, This an- guilt by other instance where association is used to establish charged. of the crime is It also where, the first case fact my attorney represents to an knowledge, person who accused of crime accomplice has been as either an considered or a as principal charged. to the crime But here we have defendant’s representation accomplices of the “inculpatory considered evidence.” People
As the Reingold, court held 382, v. 87 278 393 P.2d true that the corroborative “While it is [197 if it, evidence is sufficient to connect the defend- itself, tends although slight, offense,
ant with it is commission of the standing by itself, and to but little consider- entitled, when ation, firmly in our law nevertheless, the rule is established than required by way mere sus- more is of corroboration bar, picion suspicion. In the case at grave or even ...” all Proof “suspicion”-—nothing the record shows is more. no opportunity participate of a crime raises to mere suspicion guilt more than corroboration and is insufficient (People ; Braun, Cal.App.2d 593, 728]) 601 31 P.2d v. [88 gives perpetrators association actual of the crime also with the only suspicion guilt advised, encouraged rise he to participated insufficient corroboration crime and is ; (People Braun, Cal.App.2d 593, 601 31 P.2d v. [88 728] People Koening, People Cal.App. Long, ; v. v. 7 27 P. 387] [93 ; People Fagan, 99 98 P. Cal. Cal. 230 574 P. v. [34 238] [33 60]). People Petree, Cal.App.2d 184, In 188 v. 109 P.2d [240 may conflicting 327], the court said: That while statements “they tend discredit are not evidence witness fact” in issue. sought When Hooper’s Officer show bias
prejudice by cross-examining him as to the number of times he Pope, original had eodefendant, contacted conspirator, proposed witness the prosecution, question line of ing prohibited by Although scope the trial court. largely of cross-examination is within the discretion of the court, trial a considerable latitude should be allowed to possible show the witness’ state of (People mind and bias. Winston, ; People 46 Cal.2d [293 v. Pan 40] tages, People ; Cal. Evans, P. 890] Cal.App.2d 124, peculiar Under the [247 appears facts of it this to me that case defendant should permitted question Hooper have been as to the number Pope. times he been with It be will recalled that charges against Pope (after dismissed the com trial) mencement of the who then became a witness for the People. Inasmuch as there only Hooper’s Officer state concerning ment reply defendant’s when asked about watch, his statement to defendant about an “anti-police” feeling, and the fact he contacted Officer Roberts about “mistake” in his concerning pos defendant’s bag, session of the blue appears marked it PAA, to me that *28 the permitted defendant should have been wide latitude in
279
prejudice
bias and
Hooper to show
cross-examining Officer
that the cor-
it is considered
When
against the defendant.
entirely of
consisted
as to the watch
roborative evidence
immediately apparent
statement, it becomes
Hooper’s
Officer
any
to
before it
available
jury
have
was entitled
the
prejudice.
matter
bias and
on the
of
evidence
People
prejudicial error for the
argued that it
It is
was
inference
that it left the
following
to make the
statement
knowledge
personal
of
jury
prosecution had
with the
point
good
to
“Maybe
guilt
this is
the
of the defendant:
right
of
District
bring up
now,
the function
but it is not
recklessly indicting people
Attorney’s
go
to
around
office
not to
bringing charges
are
against
Our duties
them.
prosecutions.
making
prosecute people just
of
for the sake
County against
duty
protect
citizens of this
It is our
to
no
objection by
counsel and
was
defense
crimes.” There
no
jury,
admonishing the
request
for
time
an instruction
given
that statements
although an
to the effect
instruction was
some
in the
A case
did not constitute evidence
case.
counsel
Cal.App.2d
People Hale,
827
P.2d
82
what similar is
v.
[187
attorney
argument
jury
to
in his
where the district
grand jury
had indicted
referred to the fact that
guilty
theory that both defendants were
defendants “on the
objection by
which was over
and after
defense counsel
...”
attorney
this
court,
concluded with
ruled
statement: “That
they
district
right
why say
grand
when
I
indicted both
them.” The court
the Hale ease held
guilt
as to
defendant where the
one
evidence
attorney
“much weaker” the remarks
the district
consti
prejudicial
appears
and
request
It
tuted
had
reversible error.
that even
been a
there
admonition at this time the
quoted
error
the
not have been
would
cured. The
remark assumes
highly
guilt
prejudicial
of the defendant and was
under
(People Hale,
Cal.App.2d
the facts of the case.
v.
People
;
Berryman,
P.2d
v.
imposed does not on “His counsel: with defense attorney stipulated as follows May 10, 1955, guilty plea of was entered [Ferguson’s] time has been continued the sentence time and the from (Em- Lyons case.” granted in the to time to continuances due phasis added.) People Walther, In coconspirator who is a said: “When a codefendant court immunity prosecution in for his been from reward has offered against promptly testimony, be dismissed the cause should against of the action him Otherwise, the maintenance him. throughout may intimidate the witness serve to the trial testimony. for him to color his More- furnish an inducement party throughout the retaining person as a over, immunity prosecution promised from trial, who has been subterfuge may a mere become for his evidence reward necessity adhering established rule that the the avoid proved by conspiracy may not be fact of the existence *31 appears coconspirator.” to me that the It of a admissions sentencing accomplices apply who have should same rule pleaded guilty, they refraining testi- to do so until in may very conspiring, with them against accused one fied hope testimony sentence im- in the that the their well color cooperation with the commensurate will be posed them People argue The that there prosecution. given to the them slightest any leniency evidence would be was not “only testimony if their witnesses resulted extended to these appellant. appear It from would the conviction ...” in (heretofore attorney’s statement the district promised witnesses had been “induce- quoted) these promised to show that lenience had been is sufficient ments” testimony against In defendant. them for their a witness had 831, Green, give testimony promised immunity if which been he would being over for trial. The court would result another bound through miscarriage justice “A was occasioned held that of the condition which, use because State upon immunity impure, which dubious depended, ” majority beyond redemption.’ holds here ‘tainted that no that no in the case at bar and such condition existed error is While the admitted “inducements” reversible shown. undoubtedly leniency sentencing accom- of' consisted appears delay sentencing accomplices plices, it that the practical until trial was was “in its defendant’s concluded legal indistinguishable (People effect, from a threat.” p. 838.) Green, supra, at foregoing reasons, judgment For reverse I would denying a and order new trial. Appellant’s petition rehearing May for a was denied opinion Carter, J., petition 1958. was of the should granted. be May In A. No. 24596. Bank.
[L. 1958.] LEDBETTER, Estate of EDWARD L. Deceased. MARK WOOD, etc., Administrator, Appellant, as v. JOHN D. LUTON, Respondent. Guardian, etc.,