People v. Wayne

Defendant and Thomas Redden were charged by indictment with (count one) violation of section 653f of the Penal Code by sol-icting Joseph May “to offer and to join in the offer of a bribe” to police officers, and (counts two and three) two violations of section 337a of the Penal Code

The principal prosecution witnesses were May and Redden. According to their own testimonies they were closely connected with the criminal activities of which defendant was convicted. Defendant’s main contentions relate to the necessity for and sufficiency of the corroboration of their testimonies. We have concluded that these and other contentions of defendant, hereinafter stated and answered, are without merit.

The testimony of May and Redden is to the following effect:

May, a bookmaker, had been charged with bookmaking in Oakland in July, 1950, pleaded guilty, and was granted probation. May had become acquainted with Redden through Redden’s having placed bets with him. In August, 1950, May told Redden that he wished to establish bookmaking operations in Alameda and “would have to have 100 percent protection” from police interference because he was on probation; he asked. Redden to aid him in arranging for such protection. Redden recalled that on social occasions he had seen defendant in the company of Alameda police officers and told defendant of May’s proposal. Defendant said that he would attempt to arrange for protection. A few days later defendant reported to Redden that he had arranged with a lieutenant of the Alameda police force that May would receive protection in exchange for a “pay-off.” Defendant, May and Redden then met by appointment and defendant told May that he had arranged for him to operate safely on certain conditions as to location and manner of operation. Thereafter arrangements for weekly payments for protection were completed and May commenced bookmaking operation. He made periodical payments for protection to Redden who in turn delivered the payments to defendant. Defendant told Redden that out of the payments he purchased cases of whiskey and a slot machine which he gave to police officers. The balance of the payments was divided between defendant and Redden.

May discontinued bookmaking operations for a time after defendant warned him that the police planned to raid the

On January 12, 1951, police officers went to the bookmaking establishment and arrested May. At the police station May complained that he should not have been arrested because he was paying for protection through Redden and defendant to the above mentioned lieutenant. The arresting officers called in the lieutenant; May repeated his account of paying for protection; and the lieutenant said that May was lying. The lieutenant then went to Redden’s place of business and told him of May’s arrest and disclosures as to protection and asked Redden what story he planned to tell at the police station. Redden replied that he would say that May had borrowed $1,000 from him (actually Redden had invested $1,000 in the bookmaking business) and that the periodical payments were on the loan; the lieutenant replied, “I guess that story is as good as any. ’ ’ After Redden and the lieutenant had visited the police station, and Redden had told the above mentioned story, the lieutenant asked Redden to get in touch with defendant as soon as possible and to let him (the lieutenant) know what Redden learned. Redden telephoned defendant’s home and defendant’s wife told Redden that defendant would be at a hotel in Sacramento after 8 o’clock that night. Redden gave the lieutenant the number of defendant’s hotel and thereafter reached defendant on the telephone and told him “that they had picked May up and . . . he was screaming his head off” because he had not received protection.

After defendant returned to Oakland Redden told him of his story of a loan to May. When he was questioned by a deputy district attorney defendant told a similar story of a $1,000 loan from him to May which May was to repay in weekly installments of $100 with two additional $100 payments as interest. He said that he suspected that May was engaged in bookmaking, but “didn’t delve into the thing,” and that thereafter he told Redden and May that he thought the bookmaking was a “bad thing.” In his statement to the deputy district attorney defendant denied that he had told May that the police intended to arrest him or that he had advised moving the bookmaking enterprise to a new location or that he had ever discussed police protection with Redden or May.

At the trial defendant testified on his own behalf. The substance of his testimony is similar to that of his statement

The following evidence corroborates the testimony of May and Redden: Although defendant denied the testimony that he “tipped off” Redden and May that May should suspend operations because the police planned to raid the bookmaking establishment, defendant testified that at about the time of the asserted “tip-off” he had read in the paper that May was on probation for a previous conviction of bookmaking and that there were numerous investigations and raids of bookmakers in progress; he telephoned Redden and thereafter met with Redden and May and told them that “the man should certainly get out of the [bookmaking] business . . . because he certainly would get caught, probably without any lapse of time at all.” A sheriff’s officer testified that at the time of the asserted “tip-off” he did give the Oakland police a report on May’s activities. An Oakland police captain testified that he received the report and gave it to the lieutenant who, according to May and Redden, had been named by defendant as the person with whom he arranged for protection. Defendant was acquainted with several ranking members of the Alameda police department, including the above mentioned lieutenant.

Defendant admitted that he was receiving payments from May and his explanation thereof was rather peculiar; i.e., although defendant’s cash resources were very modest he had made an unsecured loan of cash to May, whom he had not previously known, merely upon Redden’s assurance that May was “all right”; the loan was not evidenced by any writing; defendant stated on one occasion that he made no record of the amounts repaid on the loan and testified that on a few occasions he noted a payment on a calendar but kept no “methodical record” of payments.

On the afternoon of January 12, 1951, after May’s arrest, Redden made three telephone calls to defendant’s wife in an effort to reach defendant; she told Redden that defendant would be at a hotel in Sacramento that evening; Redden left a message at the hotel and shortly after defendant arrived there he returned the call and Redden told him that May had been arrested and had made statements implicating defendant and Redden. • At 1:39 a. m. on January 13th defendant, at the Sacramento hotel, received a telephone call from “Mr. Smith” at a pay station in Oakland. The police lieutenant got off duty just after 12 o’clock midnight. Defendant testified that a

Redden and May, according to their own testimony, were principals in each of the charged offenses of bookmaking (counts two and three); May directly committed the acts constituting those offenses and Redden advised and encouraged their commission. (Pen. Code, § 31.) Since they are accomplices and are liable to prosecution for the identical offenses charged against defendant in counts two and three, their testimonies must be corroborated by other evidence tending to connect defendant with the commission of such offenses. (Pen. Code, § 1111.) Defendant urges that there is no such corroboration. The evidence above summarized is sufficient for that purpose. The corroborative evidence may be slight and entitled to little consideration when standing alone. (People v. Harper (1945), 25 Cal.2d 862 , 876 [ 156 P.2d 249 ] ; People v. Trujillo (1948), 32 Cal.2d 105 , 111 [ 194 P.2d 681 ].) “The evidence of inculpatory participation need not be direct nor extend to every fact and detail. It may be circumstantial and is sufficient, even though slight, if it tend to connect the defendant with the commission of the crime. [Citations.]” (People v. Henderson (1949), 34 Cal.2d 340 , 343 [ 209 P.2d 785 ].) Defendant’s association with police officials on the one hand and with Redden and May on the other hand, his peculiar explanation of his relations and dealings with the latter and his reason for receiving payments from them, his admitted knowledge that May was a bookmaker and that he advised May to abandon that enterprise, all tend to connect him with the commission of the bookmaking offenses.

Defendant insists that his explanation, in his extrajudicial statement to the deputy district attorney and in his testimony, of his claimed loan to May, “fantastic though it may be,” does not supply corroborative evidence tending to connect defendant with the commission of the crimes. The theory upon which such evidence may be given probative effect is that the triers of fact could conclude that it was knowingly false and could further conclude that the intentional making of extra judicial and testimonial false explanations indicates a consciousness of guilt. No California case discussing this matter has been cited by the parties or discovered by our research.

It should be emphasized that no inference of consciousness of guilt can be drawn from the mere fact that the jury, in order to convict, must have disbelieved defendant’s explanation of his relationship with May and Redden; only where the false statement or testimony is intentional rather than merely mistaken and where such statement or testimony suggests that defendant has no true exculpatory explanation can it be considered as an admission of guilt. (See concurring opinion of Justice Traynor in People v. Albertson (1944), 23 Cal.2d 550 , 581-582 [ 145 P.2d 7 ] ; State v. Elsberg (1941), 209 Minn. 167 , 177 [ 295 N.W. 913 ].) Here defendant did not simply deny his guilt; he ventured upon an explanation so unusual that, the triers of fact could conclude that it was an intentional fabrication indicating consciousness of guilt and the absence of any true exculpatory explanation.

Defendant asserts that the instructions on the subjects of liability for the actions of coconspirators in furtherance of the criminal design and of corroboration of accomplices are erroneous and confusing. The trial court gave correct general -instructions on these subjects. However, defendant says that the following instructions are conflicting: The court first told the jury that “Whether or not any witness in this case was an accomplice, as defined in these instruc

The situation here is similar to that in People v. Wallin (1948), 32 Cal.2d 803 , 806-807 [ 197 P.2d 734 ], The crime charged in the Wallin case was the violation of section 32 of the Penal Code, which provides that “Every person who, after a felony has been committed, . . . aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, ... is an

We conclude that, by analogy to the cases last cited, and to People v. Lima (1944), 25 Cal.2d 573 , 579 [ 154 P.2d 698 ], May could be found to be an accomplice, liable to prosecution for the offense charged in count one, not because he solicited himself but because he actively encouraged and abetted defendant to solicit him. (Cf. People v. Brown (1923), supra, 61 Cal.App. 748 , 752-753; People v. Montgomery (1941), supra, 47 Cal.App.2d 1 , 10-11; People v. Baskins (1946), supra, 72 Cal.App.2d 728 , 731; People v. Haley (1951), supra, 102 Cal.App.2d 159 , 165, in each of which cases there was no active participation in solicitation or procurement, but at most, as in the Brown and Montgomery cases, mere willing compliance.)

Although the person solicited, in some cases, may be found to be an accomplice, it appears that in the circumstances of this case the giving of the instruction to the contrary was not prejudicial, for the verdict of the jury

On cross-examination defendant had testified, without objection, that he had appeared before the grand jury and, although he wished to testify there, upon advice of his counsel he refused to do so on the ground that he might incriminate himself. As appears above, the prosecuting attorney, briefly and without objection specifically directed to this particular matter, referred in argument to defendant’s invocation of the privilege against self-incrimination. Defendant’s counsel on appeal (who is not the counsel who tried the case) urges that the prosecuting attorney, by educing the testimony as to and commenting on defendant’s failure to testify before the grand jury, destroyed his constitutional privilege to decline to answer on the ground that he might incriminate himself. If we consider this contention despite the lack of objection in the trial court, it is answered by People v. Kynette (1940), 15 Cal.2d 731 , 750 [ 104 P.2d 794 ], Defendants there, like defendant here, invoked the privilege

Defendant makes a number of general assignments of error, unsupported by argument or authority. He says that the trial court erred in admitting evidence of his extrajudicial statement, made under questioning by an assistant district attorney, because the corpus delecti had not been established. (See People v. Quarez (1925), 196 Cal. 404 , 409 [ 238 P. 363 ].) Defendant is mistaken. The corpus delecti of each count was established by the testimony of Redden and May; the corpus delecti of the bookmaking counts was further established by the testimony of the officers who raided the bookmaking establishment. Defendant further urges that his extrajudicial statement should not have been received because it did not corroborate the testimony of Redden and May. The statement contained relevant admissions, not necessarily incriminating in themselves, that defendant had associated with, warned, and received payments from May and Redden, as well as the relevant and damagingly peculiar explanation of the circumstances of the asserted loan to May. Insofar as the statement contained protestations of innocence its admission could not have harmed defendant.

Defendant’s contention that the court should not have received any evidence as to the bookmaking activities of May and Redden is manifestly without merit.

To show that he could not have been present at a conspiratorial meeting on November 28, 1950, defendant introduced the testimony of his mother-in-law, Mrs. Kiester, and of a roomer in Mrs. Kiester’s home, Mr. Saucke. In rebuttal the People introduced evidence that these witnesses had lived together as man and wife. The trial court instructed the jury that this evidence was admitted only as tending to show bias on the part of Saucke and not as evidence against

Defendant contends that the court erred in refusing to permit Mrs. Kiester to testify as to who was present at the time for which she gave him the alibi. The transcript discloses that she did testify as to who was present. Defendant further contends that the trial court erred in refusing to permit Mrs. Kiester to answer the question, “When was the date of November 28th first discussed?” The reason for this question was as follows: The People had brought out that defendant had been previously tried for the offenses and at that trial had not produced the alibi; defendant wished to show the circumstances under which the witnesses Kiester and Saucke, before the second trial, learned of the importance of the date and recalled it to defendant’s attention. There is testimony of defendant and Saucke as to the circumstances which refreshed defendant’s recollection as to the date, and any testimony of Mrs. Kiester would have been cumulative.

Defendant asserts that the court erred in admitting testimony showing defendant’s connection with slot machines, since such testimony inflamed and prejudiced the jury. Defendant himself testified that he was an electronics engineer and that he had been retained to service the slot machines at an officers’ club in Alameda. It was through this work at the club that he met Redden and also a number of members of the police department. Defendant’s counsel referred to this matter in oral argument. Certainly there was nothing inflammatory in letting the jury know that defendant had had part-time occupation repairing slot machines at a time when the presence of the machines in the officers’ club on federal property was legal. There was testimony (including the testimony of defendant himself on cross-examination) which showed that he arranged to obtain a slot machine for a member of the police department. This testimony was relevant to show defendant’s relation to the police department; indeed, according to the testimony of other witnesses defendant had admitted giving the machine to the officer under

Defendant claims that his trial was unfair because the public and the jury were aroused by newspaper and radio accounts of this case and of official investigations of similar cases in this and other states. This matter was not raised before the trial court and is without support in the record.

For the reasons above stated the judgment and order appealed from are affirmed.

Gibson, C. J., Shenk, J., Edmonds, J., Carter, J., Traynor, J., and Spence, J., concurred.