People v. Davis

This case was transferred to this court for hearing after decision by the District Court of Appeal for the reason that we desired to give further consideration to several of the points raised by the attorney-general, particularly in reference to the question as to whether the cáse as written conflicted with the reasoning to be found in the recent case of People v. Negra, 208 Cal. 64 [ 280 Pac. 354 ]. For reasons later made to appear,' it is our opinion that the reasoning of the District Court of Appeal is not in conflict with the reasoning of the Negra case, and it is likewise our opinion that the decision of the District Court correctly states the law applicable to this case. We, therefore, adopt as part of the opinion of this court the decision of the District Court of Appeal, Second Appellate District, Division One, written by Presiding Justice Convey, and concurred in by Justices Houser and York, which is as follows :

“In the indictment it is charged, and the record shows, that at the times to which the indictment refers the defendant was the duly appointed, qualified and acting chief deputy district attorney of the county of Los Angeles; that at and during said time there were pending undetermined in the superior court of said county two certain criminal actions wherein the defendants (in those actions) were charged with the commission of felonious crimes; that the defendant Davis, as such chief deputy district attorney, was charged with the duty of prosecuting said criminal actions, and that one E. H. Rosenberg was one of the defendants in each of said criminal actions. In one of these actions, No. 31043, the defendants, S. C. Lewis, E.

“There is no evidence of any direct negotiation or transaction between appellant and Ed Rosenberg in relation to the alleged crime of appellant. If there were any such negotiations or transactions they occurred between appellant and one Ben Getzoff acting as some kind of agent or go-between in said negotiations and in the alleged payment of the bribe. The prosecution is in no position to claim that the defendant ever did anything to comply with his supposed corrupt agreement; for if any of the evidence for the prosecution could be given that construction, it would follow that the court erred in refusing the offered evidence concerning his actual conduct, some of which defendant was not allowed to produce. The first and foremost contention of appellant is based upon the proposition that Ben Getzoff, according to his testimony, was an accomplice in the commission of the crime charged

“In order to obtain a clear understanding of the most important elements of facts in the case, and as a basis for consideration of the various errors alleged to have been committed at the trial, it is necessary to have before us the testimony of Ben Getzoff. We shall here summarize that testimony as we find it in the record. In making this summary it should be understood that we are not quoting his exact words, except where they are placed within quotation marks. Ben Getzoff said: ‘For some years I have been engaged in the tailoring business in the city of Los Angeles. In the year 1925 the defendant Davis was introduced to me by Asa Keyes, the district attorney. Thereafter I met Davis at my places of business on Spring street, including my lastest location at 609 So. Spring street; also at his office in the Hall of Justice. I have known Ed Rosenberg for five or six years. He was introduced to me by his brother, Jack Rosenberg. I have visited in the homes of the Rosenbergs and in the home of defendant Davis. In the year 1927 the Rosenbergs were engaged in the sale of stock of the Julian Petroleum Co. In May, 1927, the Julian Company was in financial difficulties. In May, 1927, I called on Davis in his office. He asked me, ‘What seems to be the trouble ? ’ Í told him the trouble was that Ed and Jack Rosenberg were subpoenaed before the grand jury. The defendant said, ‘You can talk to me about it. I have full charge of the case of the Julian Petroleum. ’ I said, they don’t want to be indicted. He said that he believed that they would be indicted. He promised that if there was any possible way he would stop the indictment, at least against Jack Rosenberg. I told him, ‘If you do anything for them they will appreciate it.’ He said, ‘All right, I will see what I can do.’

“In June there were two indictments returned against Ed Rosenberg and other defendants. That evening Davis called me up and said he had saved Jack, but Ed is indicted but not to worry about it. The next day I phoned him

“In August, 1927, Davis came to my store and told me to come to his office at two o’clock, which I did. When I came into his office he asked me whether I had seen Ed Rosenberg and whether he was worried. I said, ‘Yes, and he wants to know what you are going to do for his dismissal.’ He said, ‘I sure would love to dismiss Ed’s case but it is [not] time yet, [he] don’t have to worry.’ Then I asked him, ‘Buddy, is that true, you are going to run for district attorney?’ And he asked me who told me, and I told him Asa Keyes told me that. He said, ‘that is correct.’ And he said, ‘Do you realize, Ben, it would cost me between $35,000 and $50,000 to make the run?’ for that office. I said, ‘Does it take that money, Buddy?’ He said, ‘Yes.’ He said, ‘It will take every penny of it, but,’ he said, ‘I have some friends, if they only come through with it.’ Then he told me ‘Ben,’ he says, ‘if I want to make myself $100,000 or $200,000, I can do it right now, but,’ he said, ‘a man in my position you have got to be very careful with whom you do business.’

“Q. Well, what else was said, if anything?

“A. Then I told him, I said ‘Buddy,’ I said, ‘I will tell you what I will do, I will talk to Ed Rosenberg, and I am sure that he is going to do his share.’ He said, ‘What do you mean, money?’ I said, ‘Yes.’ He said, ‘You think he is going to come .through with anything?' I said, ‘He is not a cheap piker, he will come through.’ I said, ‘Now, Buddy, I want to tell you something, I am going to talk to Ed as soon as I get back to the store.’ He picked himself up from the chair, and he says, ‘Do you realize, Ben — do you think, Ben,’ he said, ‘that he will come through

“Q. Anything else about that matter?

“A. Then I told him, ‘As soon as I get back to the store, I will get in touch with Ed Rosenberg,’ and I did.

“After I left Hr. Davis’ office I had a talk with Ed Rosenberg. Then I called up defendant Davis and said to him, ‘I have got what you asked for.’ And he told me to meet him in the basement of the Hayward Hotel. A few minutes later he met me there, in the basement between the telephone booths. I said to him, ‘I have got for you $5,000.’ He said he wanted me to ask Ed Rosenberg for $2,500 more as a loan; that he had to make good on some stock he had bought on margin. I said, ‘All right, you can have the $5,000, and tomorrow I will get you the balance of $2,500.’ He said, ‘No, I wouldn’t need it tonight. You can get that tomorrow, the whole thing.’ Then I left and telephoned Ed Rosenberg, and he came- to my place of business. The next morning I telephoned to Buddy Davis and told him I have got the balance what he wanted. He said, ‘I will meet you in the same place.’ Later in the day he telephoned me and we did meet in the same place, in the basement of the Hayward Hotel. (This was next door to Getzoff’s tailor shop.) When I left the store I spoke to my son David, who was working in the store. I went to the appointed place. I said to Davis, ‘I have got the balance of $2,500 for you. That makes $7,500.’ -I had received that sum from Ed Rosenberg. It was in seven single $1,000 bills and one $500 bill. I handed it over to Buddy Davis. He said, ‘The first thing tomorrow I am going to get in touch with Asa, and tell Ed not to worry anything about it, as I will take care of it.’ He said, ‘You know what I done for Jack, Ed’s brother. I prevented his indictment.He knows I will do the right thing by him.’ I said I thought it was Asa that prevented the indictment. He said, ‘Asa was a liar.’ While we were talking there, my son came down and told me that there was an urgent call from Ed Rosenberg. Then I went out through the Spring street side, and Davis went out through the Sixth street side.

“On cross-examination of the witness Ben Getzoff, he said, ‘Defendant Davis visited my house on Christmas eve, in December, 1926. He and his wife and Forrest Murray came to my apartment at Wilshire and Shatto Place. Prior to May, 1927, I had been to his house twice. I had been there in the summer of 1926. My son David took me over there. Mrs. Davis was there. Davis had been to my place and asked me if I had a bottle of whiskey. He gave me his address. I went over there and gave the bottle of

“According to the testimony of Ben Getzoff, the defendant Davis, through Getzoff, asked Rosenberg to give him bribe-money. Likewise, according to. that testimony, the bribe when paid, was paid by Rosenberg, through Getzoff, to Davis. There is no evidence whatever of the asking for a bribe to be given by Getzoff, or the agreeing to receive or the receiving of a bribe from Getzoff. Undoubtedly, the testimony of Getzoff places him in the category of an accomplice. ‘A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.’ (Pen Code, sec. 1111.) Upon the statement of facts contained in the testimony of Ben Getzoff, he was liable to prosecution for the identical offense charged against Davis. (Pen. Code, secs. 31 and 971; People v. Anderson, 75 Cal. App. 365 , 374 [ 242 Pac. 906 ].)

“ The evidence relied upon to corroborate the testimony of an accomplice must be effective for more than merely the raising of a suspicion of the defendant’s guilt. But the corroborating evidence is sufficient if it, of itself, tends to connect the defendant with the commission of the offense, although it is slight, and entitled, when standing by itself, to but little consideration. (People v. Kempley, 205 Cal. 441 , 456 [ 271 Pac. 478 ].)

“David Getzoff, twenty-eight years old, is a son of Ben Getzoff. During the year 1927, David was associated with his father in the tailoring business at 609 South Spring street. He testified substantially as follows: In August, 1927, I returned from a vacation which I had taken during that month. One or two weeks after I came back from my vacation, an incident occurred with which the defendant and my father were concerned. This incident occurred in

“ The foregoing testimony of David Getzoff is evidence which, if believed, would be sufficient to corroborate the testimony of Ben Getzoff upon the single fact that, at the stated time and place, money passed from the hands of Ben Getzoff to the defendant. But in view of the fact that there was in this case no evidence (other than the testimony of the accomplice) that any bribe was asked for, agreed upon or paid — and no evidence even in Ben Getzoff’s testimony, that the defendant ever asked him, the said Ben Getzoff, for a bribe — it cannot reasonably be said that the testimony of David Getzoff had any force as evidence tending to connect the defendant with the commission of the offense. First, there must be the offense, the crime, the corpus delicti. If there had been evidence produced (other than that of the accomplice) that Ed Rosenberg, defendant in the criminal action then being prosecuted by Davis, had delivered money into the hands of Ben Getzoff, for payment to Davis (or, perhaps, even for some not reasonably explained purpose), then the further evidence that Ben Getzoff thereafter paid money to Davis, might be sufficient to support the theory of a corrupt purpose, and so connect Davis therewith. In the absence of any evidence (other than that of Ben Getzoff) of any connection of Ed Rosenberg with the transaction, there remains no ground for claiming that the transaction said to have been observed by David Getzoff had any connection whatever with the payment of a bribe. In the absence of any corroborating

“What other evidence has been produced that could support a verdict against the defendant in this easel Ben Getzoff testified, as we have seen, concerning a visit of appellant and appellant’s wife at his home, and certain other visits of himself at the home of Davis. He further testified to certain presents made by him to Davis, or to the wife of Davis. All of these are denied both by Davis and by his wife. Mr. Forrest Murray says that he never visited the home of Ben Getzoff in company with defendant and Mrs. Davis or at all, and that he never, at any time, saw Ben Getzoff come to the house of Davis with a lamp. Mrs. Davis denies the alleged visit said to have been paid by her and the defendant to the Getzoff home. She denies the incident relating to the lamp, and denies that she has ever had such a lamp. She denies the alleged present of the white flannel goods and denies that she ever had any such materials coming from Ben Getzoff. She denies that he was ever in her home or that she ever was in his home. But let it be assumed that these incidents, or some of them, as related by the witness Ben Getzoff, did take place. They had no evidentiary force concerning the crime charged, more than to create an atmosphere of suspicion.

“Besides the testimony of David Getzoff, to which we have referred, the evidence offered by way of corroboration is found in the testimony of Joseph Sherman, of Mrs. Jessie Barrett and of John J. Kessler and his wife. Sherman testified that his place of work in the Getzoff shop was not more than five feet away from a window of the office; that in June, of 1928, several days after the verdict returned in the Rosenberg case, he overheard a conversation between defendant Davis and Ben Getzoff in which he heard Davis say to Getzoff, ‘Why doesn’t he come across with the money I I am waiting too long. ’ Cross-examined about the

“The testimony of John J. Kessler and his wife is the only other testimony claimed to have corroborative value. That of Mrs. Kessler requires no separate mention, since that of her husband more fully covers the same matters. Apparently the purpose of this testimony was to prove that in the face of an accusation personally made by Kessler to defendant Davis, the conduct of Davis in response to that accusation was such as to show a consciousness of guilt. It appears that at some time prior to the trial of the Rosenberg case there had been a transaction between Mrs. Kessler and Jack Rosenberg, in which Jack Rosenberg received from Mrs. Kessler 200 shares of Julian stock, and that she had been unable to obtain from him any accounting therefor. Kessler testified to an interview which he had with Davis in the office of Davis, on May 17, 1928. He went there with Mrs. Kessler and asked Davis to take Jack * Rosenberg before the grand jury for an investigation of that transaction. He said that he had found out that Jack Rosenberg had sold the stock of Mrs. Kessler, and he had told Jack that if he, Jack, did not return the money to Mrs. Kessler that he, Kessler, would go to the district attorney and swear to a warrant, and ‘you will be arrested, just like your brother. ’ ‘Q. Is this what you told Mr. Davis? A. Yes, I told Mr. Davis everything. He started to laugh. He said, “I am not afraid. The Julian case is fixed by Mr. Getzoff.” ’ Further on it appeared that what the witness meant to say was that in response to Kessler’s threat of arrest, Jack Rosenberg laughed and said, ‘I am not afraid. The Julian case is fixed by Mr. Getzoff. ’ Further on Kessler said, ‘Mr. Davis, when I told him that— I said, “Jack Rosenberg says he is not afraid, because the

“At the conclusion of the direct examination of Mr. Kessler, defendant moved to strike out said testimony as not illustrative of any of the issues in the case and not tending to prove anything in the indictment. Strenuous but unsuccessful efforts had been made by counsel for the defendant to have this witness confine his statements to his conversation with Davis and to exclude direct statements of the conversation that he had had with Jack Rosenberg. The motion of defendant to strike out the testimony was denied. Upon a very similar record of the testimony of Mrs. Kessler, similar objections and motions made by defendant were overruled.

“The testimony of the Kesslers was offered as showing an accusatory statement made to the defendant, and showing consciousness of guilt as exhibited by the conduct of defendant in the face of such accusation. The statement made by Kessler to Davis, in the form of an alleged quotation from Jack Rosenberg, was not an accusation directed personally to Davis. The record shows that in the then pending trial of the Rosenberg case the district attorney and several deputies other than Davis were also actively connected with the prosecution. There was also the possibility that any ‘fixing’ of the case had been effected through contact with jurors. Before the failure of a person to deny a statement of fact can be received as evidence of an admission of guilt or of consciousness of guilt it must appear that he understands that he himself is accused of the criminal act. (2 Wharton on Criminal Evidence, 10th ed., sec. 680, p. 1407; People v. Hartwell, 37 Cal. App. 799 [ 175 Pac. 21 ].) We are of the opinion that the court erred in denying the motions to strike out the Kessler testimony.

“Another error of the court in relation to the Kessler testimony occurred at a later point in the trial. Jack Rosenberg was called as a witness for the defendant, and was asked whether he had a conversation with Kessler during the trial of the Rosenberg case, in which he told Kessler that he wasn’t afraid of being taken before the grand jury because the ease had been fixed by Getzoff. The district

“Taking the testimony of the several witnesses offered in corroboration of the story told by Ben Getzoff, it is exceedingly doubtful whether any of it, or all of it together in and of itself amounts to corroborative evidence tending to connect the defendant with the commission of the crime charged. In order to give it effect even as tending in that direction it seems at every point necessary to interpret and explain this ‘corroboration’ in the light of the testimony of Ben Getzoff. It requires the testimony of Ben Getzoff to give it direction to the alleged crime, before it can be said to connect the defendant with the commission of

“ Counsel for the People claim that the defendant ‘was convicted of the crime of asking a bribe of Ben Getzoff.’ That is true, because this was a part of the crime

“ And even if it be assumed that the so-called corroborative testimony is technically sufficient to prove the asking, agreeing to receive and receiving a bribe from Bd Rosenberg, nevertheless it leaves the case in that weak and unsatisfactory condition in which errors become important, because in such case they much more easily lead to a miscarriage of justice than in those cases where there is abundance of reliable evidence of the defendant’s guilt. Section 4% of article VI of the Constitution was not intended to mean that the mere fact that the evidence may legally be able to stand up under the weight of the judgment is sufficient reason in all cases for refusing to set aside the' judgment. The phrase ‘ miscarriage of justice, ’ used as descriptive of that condition of a cause which justifies the reversal of a judgment, has no hard and fast_ definition. It seems assured, however, that where errors have been committed, and where the appellate court finds that upon the record it is seriously doubtful that without such errors the defendant would have been convicted, then it may well be that errors which otherwise would not be considered to be seriously prejudicial, will require a reversal. See People v. Adams, 76 Cal. App. 178 , 186 [ 244 Pac. 106 ], and numerous cases there cited.

“There are numerous assignments of error, other than those to which we have referred. We do not find it necessary to elaborate upon them here. Let it be assumed that none of them would be sustained, or that if sustained they would not be of great importance. The fact that the verdict rests upon the testimony of a self-confessed accomplice in the crime of bribery (a crime which necessarily impeaches the integrity of one who takes part in its commis

In answer to the contentions made on petition for hearing in this court, we add the following observations:

The attorney-general contends, in effect, that since the testimony of Ben Getzoff, summarized by the District Court of Appeal, clearly shows that Getzoff was the accomplice of Rosenberg in the offering or giving of a bribe, he could not therefore be the accomplice of Davis in the asking or receiving of a bribe; and that it therefore follows that Getzoff’s testimony did not have to be corroborated. This result is non seqmtur. It is undoubtedly true, as the evidence shows, that Getzoff was an accomplice of Rosenberg in the giving or offering of a bribe, punishable under section 67 of the Penal Code. It is likewise true that since 1915, under the amendment of that year to section 1111 of the Penal Code providing that an accomplice is one who is liable to the prosecution for the identical offense charged against the defendant on trial, the giver and receiver of a bribe are no longer accomplices one to the other (although that was formerly the law of this state, People v. Coffey, 161 Cal. 433 [ 39 L. R. A. (N. S.) 704 , 119 Pac. 901 ]), inasmuch as the asking or receiving a bribe is made a separate offense from offering or giving a bribe under section 68 of the Penal Code. However, when the bribe is accomplished through the medium of an agent, or go-between, or intermediary, the mere fact that the evidence is conclusive that such emissary is the agent or accomplice of one of the parties does not necessarily determine that such emissary is not likewise the agent or accomplice of the other party to the transaction. We can see no impossibility, legal or otherwise, in a person acting as the agent or accomplice of both the bribe giver and the bribe receiver. Bach case, of course, must turn on its own facts and circumstances, and if there is any doubt as to the proper status of the emissary, the question is one, under proper instructions, for

The attorney-general strenuously contends that the law as stated, supra, in reference to the amount of evidence necessary to corroborate an accomplice, while following the rule of People v. Kempley, supra, is contra to the rule enunciated by this court in People v. Negra, supra. We find no inconsistency in the two cases. In the Negra case, 208 Cal., at page 69, the rule is stated as follows:

11 While the jury may consider the circumstance that a witness is an accomplice, in passing upon his credibility as a witness (People v. Clough, 73 Cal. 348 , 354 [ 15 Pac. 5 ]), his testimony is not to be rejected merely because he is an accomplice, and if there is other evidence which measures up to the requirement of the code, supra, tending• to connect the defendant with the commission of the crime charged, then such testimony of the accomplice is to be considered by the jury, as in any other testimony, and must be given the weight to which the jurors may conclude that it is entitled. (People v. Hoosier, 24 Cal. App. 746 [ 142 Pac. 514 ].) The evidence tending to connect a defendant with the commission of the crime may be slight and, when standing by itself, entitled to but little consideration. (People v. McLean, 84 Cal. 480 [ 24 Pac. 32 ].) The law does not require that the evidence necessary to corroborate the testimony of an accomplice shall tend to'establish the precise facts testified to by. the accomplice; and strong corroborative testimony is not necessary to support a judgment of conviction on the testimony of an accomplice. Even though circumstantial and slight, the evidence is, nevertheless, sufficient if it tends to connect the accused with the commission of the offense. (People v. Martin, 19 Cal. App. 295 [ 125 Pac. 919 ].) The defendant’s own statements and admissions, made in connection with other testimony, may afford corroborating proof sufficient to sustain a verdict. (People v. Armstrong, 114 Cal. 570 [ 46 Pac. 611 ]; People v. Sullivan, 144 Cal. 471 , 473 [ 77 Pac. 1000 ].) It is not necessary that the corroborating evidence should go so far as to establish by

By the last sentence quoted above it was not intended to hold that the corroborating evidence is sufficient if it merely raises a suspicion of defendant’s guilt. Any such rule would be directly contrary to the mandatory provisions of section 1111 of the Penal Code, which provides, in part, that the corroboration must be of such a nature “as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” The corroborating evidence must do more than raise even a “grave suspicion” of the defendant’s guilt. (People v. Kempley, supra,, citing People v. Robbins, 171 Cal. 466 , 470 [ 154 Pac. 317 ]; People v. Woodcock, 52 Cal. App. 412 , 417 [ 199 Pac. 565 ]; People v. Janssen, 74 Cal. App. 402 , 407 [ 240 Pac. 799 ].) As already stated, supra, the corroboration relied upon in this case, áfter excluding the accusatory statement of the Kesslers, in no way corroborates the evidence of Ben Getzoff that Rosenberg paid money to Getzoff for Davis, and that, in fact, such money was so paid; nor is theré any corroboration of Getzoff that Davis asked for and received such money. The most that can be said is that the corroborating testimony raises a suspicion of defendant’s guilt, and this, as we have seen, is not sufficient.

The judgment and the order denying defendant’s motion for a new trial are reversed.