People v. Tomasovich

The defendant, under an indictment returned by the grand jury of the county of Sutter, was tried for and convicted of the violation of certain provisions of an ordinance of the said county penalizing the “sale, manufacture, unlawful possession or transportation of intoxicating liquors” within the limits of said county. Said ordinance, which was introduced in evidence, and which was regularly passed by the board of supervisors of the county of Sutter on the eighth day of March, 1921, is in its provisions fashioned after the law passed by Congress to enforce the inhibition of the eighteenth amendment of the federal constitution against the sale, transportation, and unlawful possession of intoxicating liquors, and known as the “Volstead Act” ( 41 Stat. 305 ).

The appeal is from the judgment of conviction and tho order denying defendant’s motion for a new trial.

The verdict is assailed on a number of different grounds, which may be stated as follows: 1. That there was error, prejudicial to the rights of the accused, in the order denying defendant’s challenge of Juror Noyes for cause; 2. That the court, of its own initiative, improperly interfered with and thus curtailed the cross-examination by the defendant’s counsel of one of the witnesses for the people; 3. That prejudicial error was committed by the admission of certain evidence; 4. That the court prejudiced the rights of the defendant by making a certain comment upon the testimony during the progress of the trial; 5. That the court erred, to the serious detriment of the rights of the accused, in giving and also in refusing to give certain instructions; 6. That the conviction of the defendant is against public policy and cannot, therefore, be upheld, inasmuch (so it is asserted) as the evidence discloses that the accused would not have committed the act constituting the foundation for his prosecution, conviction, and punishment but for the inducements originated by the public officers themselves and by them held out to him to commit said act; that, in other words, he was trapped into the commission of the

The specific charge against the defendant is .that, on the ninth day of June, 1921, in the said county of Sutter, and outside the limits of any incorporated city or town therein, he sold intoxicating liquors, to wit, “whisky and liquor containing one-half of one per cent and more of alcohol by volume, which was then and there fit for beverage purposes,” etc.

From the evidence it appears that, a few months prior to the day on which the defendant was arrested upon the charge stated in the indictment, one M. A. Carpenter had been appointed a deputy sheriff and as such charged with the special duty of “rounding up bootleggers.” Carpenter had received information through various sources that the defendant, who resided in Butte County, “about two-tenths of a mile above the Sutter County line,” was engaged in bootlegging or in the illicit traffic of intoxicating liquors. After obtaining this information, Carpenter called at defendant’s house on several different occasions prior to the date of the arrest, and on one of said occasions—May 21, 1921—in the course of a conversation with the defendant the subject of intoxicating liquors arose and was discussed by and between them. Carpenter asked defendant if he had any wine, to which the former replied: “No, I haven’t got any and if I had I would not be afraid to sell it to you. . . . I could get you some jackass brandy.” The officer answered that he did not like such liquor, but preferred wine, and ventured the suggestion that he could buy wine at Napa at two dollars a gallon, to which suggestion defendant retorted: “You ought to get some and you can sell it for four dollars a gallon.” On another visit of Carpenter to the defendant’s home, Carpenter, having taken some wine with him, invited the defendant to take a drink of the

The above statement of facts is gleaned from the testimony of witnesses introduced by the people. As a matter of fact, the defendant did not take the witness-stand in his own behalf, or otherwise introduce any testimony in opposition to that presented by the people in support of the charge.

[1] 1. Juror Noyes, in reply to questions upon his voir dire and touching his qualifications to sit as a juror in the case, repeatedly stated to the district attorney and to the court that, while he entertained a strong feeling of hostility against intoxicating liquors and the traffic therein, he, nevertheless, could and would, if accepted as a juror, give the defendant, with whom he was not personally or otherwise acquainted, and as to whom he entertained no feeling of personal prejudice, a fair and impartial trial, according to the evidence adduced and the law as declared to the jury by the court. Upon being questioned at considerable length by the counsel for the defendant, and after repeating that he could try the case fairly and impartially, notwithstanding that he had “always had a very strong prejudice against

[2] 2. There is no substantial merit in the assignment that the court interfered with and thereby cut off legitimate cross-examination of a witness for the people by defendant’s counsel. The incident about which the defendant complains in this particular arose in this way: The witness, Carpenter, was asked by defendant’s attorney if he was

[3] 3. TMs assignment brings into question the propriety of the action of the court in admitting in evidence and as exhibits against the accused the three half gallon jugs containing the whisky alleged to have been sold by the defendant. The ruling alloAving this evidence was over objection by the attorney for the defendant upon the ground that no proper foundation was laid for the evidence, in that it was not shown that the jugs, as they were introduced in evidence, were in the same condition as when delivered to the sheriff by the witness Carpenter. The complaint against this testimony is not supported by the record. The testimony shows that the jugs with their contents were delivered by the witness Carpenter to the sheriff in the same condition that they were in when the witness received the same from the defendant, and that the sheriff immediately placed them in a vault in his office, kept them locked therein, and did not remove them from the time that he received them until the time the trial was called and was proceeded with, save on one occasion when they were taken by the witness Carpenter to a druggist in the city of Marysville for the purpose of having their contents analyzed and tested with the view of determining the character and the extent of the alcoholic content of the liquid contained therein. It is reasonably clear from all the testimony upon this proposition that the contents of the jugs were precisely what they were when sold and delivered to the officers by the defendant.

[4] 4. In connection herewith we may dispose of assignment No. 4, in the order in which the assignments are above enumerated, involving the charge that the court virtually instructed the jury upon a question of fact when

“Mr. Davies: Your Honor said it was proved.

“The Court: That is the testimony before the court.

“Mr. Davies: Did you say it was proved?

“The Court: I said it was the testimony.

“Mr. Davies: I thought your Honor said it was proved.

“The Court: You cannot trap me, sir.

“Mr. Davies: I am not trying to.

“The Court: I advise you not to try it.”

Of course, it is not proper for a trial court to state in the presence of a jury during the progress of the trial that any material or important fact has been proved. Such a statement would clearly involve a trespass upon the domain of fact and an invasion of the function of the jury. Undoubtedly, the statement made by the court that the facts referred to were proved was wholly inadvertent and that what the court really intended to say, as it explained was its purpose, was that there was testimony before the jury tending to establish those facts. The explanation of the judge that he intended merely to refer to the testimony in the case and not to what was proved by the testimony, supplemented by the instruction embraced in the charge of the court that whether any fact essential to the conviction of the defendant was or was not proved, was a matter solely for the jury’s determination, may well be supposed to have been sufficient to demonstrate to the jury that they were not to be influenced in arriving at a verdict by any chance remark of the court involving what might appear to be a suggestion as to what was proved in the case. The fact is that the explanation of the judge was itself in effect an admonition to the jury that they were not to consider or be influenced in their

[5] It is further contended, in connection with the present consideration, that the court’s statement, in addressing the defendant’s attorney, “You cannot trap me, sir,” had the effect of placing the attorney in an unfavorable light in the eyes of the jury, with the result that the defendant was likewise prejudiced. The court perhaps should not thus have censured the attorney or insinuated that he was attempting to mislead it, but it too often happens that during the trial of a case, particularly where it is zealously contested by counsel, that both counsel and the court will stray away from that cool and calm mental attitude which should characterize both in the performance of duties of such grave importance, but if cases were to be reversed and sent back for retrial for such a reason there would be very many reversals which would not accord with justice. The misconduct of a court in that particular must be such as to make it manifestly plain that it has brought about a result in the trial which would not otherwise have been effected before a reviewing court will, solely for that reason, nullify the judgment or the order.

[6] 5. The latter clause of the following given instruction is complained of: “The word ‘willfully’ when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act or make the omission referred to. It does not require any intent to violate law or to injure another or to acquire any advan tage.” This instruction is in the precise language of subdivision 1 of section 7 of the Penal Code. It is contended, however, that said instruction is inconsistent with the instruction, given by the court, that “in every crime there must exist a union of act and intent.” In the case of People v. Stennett, 51 Cal. App. 370 [ 197 Pac. 372 ], the. particular language here criticised was under review and it was therein said that said language, although embodied in the code section, would, in the ordinary criminal cases, tend to mislead or confuse the jury and, therefore, should not have been

“The decisions appear to be quite uniform upon the proposition that where, in invoking and applying the police power, the legislature has prohibited certain acts and denounced them as criminal, the mere commission of such acts, regardless of the intent with which they were committed, is sufficient to constitute the crime so denounced. There are, perhaps, certain exceptions to this rule, as, for instance, where the statute itself uses language in describing or defining the crime indicating that scienter or a specific intent to do the act was essential to constitute it a crime. But particularly in cases interdicting the traffic in intoxicating liquors the rule generally is that the mere commission of the act is sufficient to consummate the offense, and in the present case the law authorizing the establishment of ‘no-license territories’ uses no language indicating an intention in the legislature to make the intent with which the act of keeping a resort for the purpose of selling intoxicating liquors is committed an ingredient of the offense.” Citing Commonwealth v. Holstine, 132 Pa. St. 357 [ 19 Atl. 273 ], wherein it is expressly held that to sustain a conviction for selling intoxicating liquors under a statute of the state of Pennsylvania penalizing the sale thereof it is not requisite to prove a criminal intent. These observations, of course, answer the criticism here made against the instruction to the effect that “the commission of the offense constitutes the crime and the specific intent or intention with which it is done is immaterial.”

[7] The legal soundness of the instruction read by the court upon the rule of reasonable doubt is challenged upon the ground that therein the court transcended its province by instructing upon a question of fact, in that it was de

[8] The next assignment under this head is that the court erred in taking judicial notice of the fact that the place where the liquor was sold in Sutter County was not within the limits of an incorporated city and so instructing the jury. While the courts take judicial notice of the existence and bounds of a city (Stats. 1889, p. 372; People v. Mueller, 168 Cal. 521 , 524 [L. R. A. 1918B, 788, 143 Pac. 748 ], it is extremely doubtful whether the courts may take judicial notice of the fact that any particular place or locality is not within the limits of an incorporated city. But there is no evidence in this case or any pretense that either Gomez Station or Dago Corners is situated within the limits of any municipal corporation or that either is itself a municipal corporation. To the contrary, the uncontradicted evidence is that those places were not within the limits of an incorporated city. It is, therefore, manifest that the instruction, even if erroneous, could not have operated prejudicially against the rights of the accused.

[9] The court refused the following instructions requested by the defendant:

“I further instruct you that unless you find that this defendant originated the criminal design of which he is accused and with the criminal attempt to carry out the crime of which he is charged after it was suggested to him you must find him not guilty.”

“I further charge"you that a person entrapped into the commission of a wrongful act without any original criminal design upon his part, and without any attempt to carry out a criminal purpose of his own conception, does not therefor become guilty of crime.”

The foregoing instructions bring up the point assigned as No. 6 in the order in which the points are stated above, to wit, that the defendant was enticed, upon a design initiated by the officers of the law themselves, into the commission of the act of selling the liquor, and that, as a consequence, his conviction and the punishment to follow, if the conviction be sustained, are opposed to public policy.

There are many decisions upon the proposition to which the refused instructions are addressed by both the state and the federal courts, and in many instances the judicial views crystallized from facts substantially similar are rather divergent.

The theory of the rule thus sought to be invoked by the defendant is that it is as well the duty of peace officers to prevent as to detect and punish crime, and that, therefore, where a crime is entirely of the creation of such officers and not that of the person by whose direct act the crime has been committed—that is, where the officers themselves have originated the design to have a crime committed and have by some artful means induced another, wholly innocent of criminal intent until by such officers his mind has thus been corrupted, to execute such design—it is in such case the policy of the law to condemn rather than to encourage convictions thus brought about.

The rule is not, however, uniformly applicable to all cases of crime, but it is unnecessary here to enter into an examination of the reasons for the distinction (they being obvious on reflection), since we are convinced, not only from the evidence but from the nature of the offense charged in the indictment, that the rule cannot be applied in this case. In the first place, it is to be remarked that it is commonly known that everybody of normal intelligence is fully cognizant of the fact that the act constituting the crime charged against the defendant is and has been unlawful ever since the enactment of the congressional legislation, the purpose of which was to enforce the eighteenth amendment to the federal constitution, Indeed, the evidence in this case very

[10] 7. The proposition that the evidence is insufficient to support the verdict involves, it is manifest, a question of venue or jurisdiction. The contention is that the transaction at the defendant’s home between the latter and the

The testimony does not show just what occurred or precisely what the conversation was at the defendant’s house between the latter and the officers on the day preceding that on which the liquor was delivered near Gomez Station. It was shown, however, that the officers visited the defendant at his house on said day; that they left the three empty half gallon jugs with the defendant; that Carpenter paid the former five dollars in cash; that the defendant on the following morning, according to prearrangement, as may well be inferred from the fact that the circumstance occurred at a very early hour in the day, met the officers near Gomez Station and returned to them the jugs filled with whisky and that the balance of the purchase price of the whisky, twenty-five dollars, was paid by the officers to the defendant. Prom these circumstances, the jury were clearly warranted in finding that the" defendant had agreed to sell to the officers three half gallon jugs of whisky for the sum of thirty dollars and was to deliver the same to said officers on the morning following the eighth day of June at or near Gomez Station, in Sutter County. There still remains, though, the question whether the transaction above explained involved a sale or a mere agreement to sell. There was no testimony showing or tending to show that at the time the officers arranged with the defendant for the delivery of the whisky to them at Gomez Station there was any whisky in the possession of the latter at his home. In other words, there is no evidence to show that the defendant had whisky in bulk from which the officers could have purchased or agreed to purchase any quantity of the article. On the other hand, it was shown, as we have seen, that a short time prior to the eighth day of June, 1921, at the home of the defendant, the latter, upon being asked by Carpenter if he (defendant) had any wine for sale, replied that he did not have wine but that he could get some “jackass brandy” for the officer, and that the latter said that he did not want that kind of

In Benjamin on Sales, book 2, chapter 3 (7th ed., p. 270), it is said: “Where by the agreement the vendor is to do anything to the goods for the purpose of putting them into that state in which the purchaser is to be bound to accept them, or, as it is sometimes worded, into a deliverable state, the performance of those things shall, in the absence of circumstances indicating a contrary intention, be taken to be a condition precedent to the vesting of the property.” Again, the same learned author gives the following rule: “Where anything remains to be done to the goods for the purpose of ascertaining' the price, as by weighing, measuring, or testing the goods, where the price is to depend on the quantity or quality of the goods, the performance of these things also shall be a condition precedent to the transfer of the property, although the individual goods be ascertained, and they are in the state in which they ought to be accepted.”

It is well settled that the question as to whether the title has passed is one as to the intention of the parties, and such intention is, as a matter of course, to be gathered from the language of the parties considered in the light of all the circumstances of the case. There are, however, certain circumstances which have a controlling force where the intent

Again, in the same case, 76 Cal., at page 217 [ 9 Am. St. Rep. 199 , 18 Pac. 251 ], the court said: “So far as concerns the proposition that where weighing or measuring is necessary to the identification of the goods, the title does not pass until they have been weighed or measured, the American eases are generally in accord with the above rule. . . . Some of the American cases are not in accord with the rule laid down by Mr. Benjamin in this: That if the goods are identified, it does not matter that weighing or measuring is necessary to ascertain the price or the quantity and this seems to be the law in California for the Civil Code contains the following [here quoting section 1140 of said code]. This section does not dispense with identification. On the contrary, it requires it. It only dispenses with segregation when the property is otherwise identified. Therefore, where the identification consists in the segregation, weighing, or measuring, they are still necessary.” (See, also, Horr v. Barker, 8 Cal. 608 ; McLaughlin v. Piatti, 27 Cal. 463 ; Caruthers v. McGarvey, 41 Cal. 15 ; Gianelli et al. v. Globe Grain & Milling Co., 48 Cal. App. 103 [ 191 Pac. 720 ], and cases therein cited.)

Our conclusion upon this branch of the discussion is that, from all the circumstances of the case, tested by the terms

[11] 8. The contention that the ordinance under which the defendant was prosecuted, in so far as the penalty prescribed is concerned, is in conflict with the Volstead Act and is, therefore, invalid, is conclusively answered by the recent case of In re Volpi, 53 Cal. App. 229 [ 199 Pac. 1090 ], decided by this court. It is therein said: “The fact that the statute or ordinance of the lesser jurisdiction is more exacting, or that the penalty imposed is more or less severe than that of the greater, does not constitute a conflict. If prosecuted under the one, a defendant is entitled to the protection which that law affords him; if under the other, his rights are governed by its provisions. (In re Hoffman, 155 Cal. 114 [ 132 Am. St. Rep. 75 , 99 Pac. 517 ].) ” [12] Of course, it will be conceded, as is clearly pointed out by Presiding Justice Finch in the case of In re Volpi, supra, that counties, in the exercise of the power of police conferred upon them by the state constitution (art. XI, sec. 11), may adopt and enforce ordinances prohibiting the manufacture, sale, transportation, or unlawful possession of intoxicating liquors. This power has not been taken from them by the eighteenth amendment to the federal constitution, and the fact that the Congress has passed a law for the enforcement of that provision docs not impair the right

We have examined this record with much care, and thus we have been persuaded to the conviction, after a painstaking investigation of all the points urged for a reversal, that the verdict should remain undisturbed.

Accordingly, the judgment and the order appealed' from are affirmed.

Burnett, J., and Finch, P. J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 17, 1922.

All the Justices concurred, except Sloane, J., and Shurtleff, J., who were absent.

Richards, J., pro tern., was acting for Waste, J., who was absent.