People v. Lorraine

Appellant was convicted of the crime of grand larceny and has appealed from the judgment of conviction and the order denying his motion for a new trial. As grounds for reversal he urges that the trial court erred in ruling upon the admissibility of the evidence and in refusing to give to the jury one of his proposed instructions; that respondent’s attorneys were guilty of prejudicial misconduct in arguing certain matters to the jury, and that the evidence is insufficient to support the verdict. Bespondent has filed no brief, nor was any oral argument presented in support of the judgment, it being stated on behalf of respondent at the time the appeal came on for hearing before this court that the contentions made in appellant’s brief were deemed unanswerable. We have nevertheless carefully examined the record on appeal, including the transcript of the evidence, and have also fully considered the contentions made in appellant’s brief, and in our opinion the points appellant urges are without sufficient merit to demand a reversal of the judgment.

The record discloses that appellant was indicted by the grand jury of the city and county of San Francisco, jointly with Emma Brose and Fred Brose, her husband, upon a charge of stealing from Eva M. Fleming six diamond rings of the total value of $16,000, but that owing to appellant’s disappearance following the alleged theft, Brose and his wife were tried first, with the result that the jury acquitted Brose and

Summarizing, the evidence shows without dispute that Miss Fleming’s rings were stolen from her fingers on the night of October 27, 1925, in appellant’s apartments, while she lay in a stupor caused by either drugs or intoxicants or both, after having participated in a dinner party given therein by appellant and others; and in our opinion the circumstances established by the prosecution clearly justify the conclusion that said apartments were rented by appellant and the dinner party arranged therein for the very purpose of executing this crime, and that appellant was an active participant therein. The principal facts supporting the foregoing conclusion, as the same are shown by the evidence, are as follows: Miss Fleming was engaged in the insurance business in San Francisco and was in the habit of wearing said jewelry almost constantly. She had known Brose and his wife for some time prior to the year 1925, having made their acquaintance in the pursuit of her business. She was also acquainted with members of Mrs. Brose’s family and with others living in the same house. The acquaintanceship

Miss Fleming met appellant socially in company with Brose and his wife on three subsequent occasions, each meeting having been brought about by Mrs. Brose. The first one took place at Mrs. Brose’s home on October 3d; another shortly afterwards at a downtown hotel, and the third at the Braeburn Apartments on October 26th, the night before the theft of the jewels. With reference to the occasion last mentioned the evidence shows that Mrs. Brose invited Miss Fleming to a dinner party to be held at said apartments that night, but Miss Fleming did not accept. About 8:30 the same night Mrs. Brose phoned Miss Fleming at her hotel, again inviting her to the Braeburn, and in response Miss Fleming went there, arriving about nine o’clock and remaining until after midnight, and then returned to her hotel. Present on that occasion besides appellant, Brose and his wife, were a Mrs. Jones, who at that time was known to Miss Fleming only as Rachel, and a man referred to by those present as “Red” Rafferty, and to whom Miss Fleming had been introduced by Mrs. Brose at one of the previous gatherings. It was represented that Mrs. Jones had just taken the apartment at the Braeburn, and during the course of the evening Mrs. Brose, after expressing regrets that Miss Fleming was not able to join them at dinner, per

In response to this invitation Miss Fleming arrived at the apartment early the next evening and about 7 o’clock dinner was served, at which were present besides Miss Fleming, the appellant, Brose and his wife, “Red” Rafferty, and a young woman they addressed as Myrtle. Rachel Jones was absent. The testimony given by Miss Fleming as to what afterwards happened was in substance as follows: Before dinner was served she was offered intoxicating drinks, but declined because she did not like the kind of liquor Mrs. Brose had given her at the apartment the night before, and she asked for and was given what she believed was a glass of ginger ale. During the dinner she was also served with a cup of coffee, but did not drink all of it, because she did not like the taste of it. After dinner she assisted Mrs. Brose in washing and drying the dishes, and while doing so began to feel distressed, being “short of breath” as she expressed it. After the dishes had been put away Mrs. Brose suggested a game of cards, but not feeling well, Miss Fleming did not join in playing. During the progress of the game another round of drinks was served, but Miss Fleming again called for ginger ale. Soon after taking this last drink she felt “very miserable” and went into the living-room adjoining to recline on the couch where she was served with another drink of what she took to be ginger ale. Soon after-wards she lapsed into a state of unconsciousness, and when she regained her senses she was still reclining on the couch and Mrs. Brose and Myrtle were standing in front of her. Mrs. Brose immediately told her that the apartment had been robbed. Appellant at that time was in the dining-room adjoining, the two rooms being connected by an open archway. Miss Fleming asked how the apartment could have been robbed while Mrs. Brose and the rest of them were there, and she was told that after she had gone to sleep they all left the apartment and went to the beach to get

Further evidence was offered by the prosecution to prove that between 9 and 10 o’clock on the morning of October 29th, which was the second day after the theft, Miss Fleming consulted a doctor on account of pain she was suffering from a small bruise on each shoulder. The doctor testified that in his opinion these bruises were caused by the insertion of a hypodermic needle; also that from the description given of Miss Fleming’s symptoms her unconscious condition had been produced by chloral. It was also shown that notwithstanding other members of the dinner party claimed to have been victims of the robbery, no report was ever made by any of them to the police, nor did appellant even mention

Appellant did not offer himself as a witness at the trial, nor were any of the others present at the dinner party called upon to testify except Mrs. Brose, who was produced as a witness first by the prosecution and afterward by the defense; and it was upon her testimony that appellant mainly relied to establish his innocence, she having denied taking any of Miss Fleming’s jewelry herself or of seeing anyone else take the same, claiming that the robbery occurred during the absence of herself and the others from the apartment. Appellant furthermore endeavored to prove on cross-examination of Mrs. Brose and Miss Fleming that the latter’s unconscious condition was caused by a voluntary overindulgence in intoxicants; but it would seem to make little difference whether she was drugged or intoxicated, for, irrespective of the exact cause of her condition, her jewelry was admittedly stolen from her while she was in a helpless state; and the fact, therefore, that she may have been intoxicated and not drugged would have no tendency to prove either that the robbery was not committed or that appellant was not a participant therein. Appellant also attempted to show in the same manner that Miss Fleming was not detained in the apartment against her will nor prevented from communicating with friends or the police, but that, on the contrary, she continued to drink and remained intoxicated during the rest of the night and most of the next day, which was the real reason for remaining in the apartment until the evening following the dinner; and in this connection the clerk at Miss Fleming’s hotel testified that on the morning after the robbery a man whose identity was not disclosed phoned to him saying that Miss Fleming desired to see him at the Braeburn Apartments, but that he declined to go there. In explanation of this latter testimony Miss Fleming testified that she tried to phone to the clerk herself, but was forcibly restrained from doing so; and with reference to the charge of intoxication she consistently denied that such was the fact. The jury, whose exclusive province it was to determine the truth of the matter, doubtless believed her, and we have found nothing inherently improbable in her testimony. Therefore, so far as the question of appellant’s guilt is concerned, there are no grounds

With reference to the admissibility of evidence, appellant relies upon but one assignment of error. It relates to the testimony of Mrs. Brose, while testifying as a witness for the People, to the effect that after separating from appellant in Oakland she and her husband, upon their return to -San Francisco, engaged a hotel apartment under an assumed name. The testimony in question was as follows: “Mr. Garry (assistant district attorney): Q. Where did you go? A. To the Ogden Hotel on Mission street. Q. By ‘we’ you mean you and your husband? A. Yes sir. Q. Did—■ Were you registered there at the Ogden Hotel? A. We were. Q. Under what name?” The question was objected to by counsel for appellant upon the ground that the testimony sought to be elicited was incompetent, irrelevant and immaterial, not part of the res gestae. The objection was overruled, and the witness answered: I think, if I remember ' right, I think it was the name of Clem.” Continuing, the testimony was as follows: “Mr. Garry: Q. That would be on the morning of October 29th, would it not? A. I know it was on Thursday morning. What date it was I don’t remember. Q. Well, that would be the second day after the dinner at the Braeburn Apartments? A. Yes sir. Q. And how long did you remain there? A. Until the following Tuesday. Q. Until the following Tuesday. That would be November 3d, would it not? A. Election day, yes sir. Q. And on that day you surrendered to the police, did you not? A. We did.”

In support of his objections appellant contends that if a conspiracy did exist between appellant and others, including Mrs. Brose, to steal Miss Fleming’s jewelry the object thereof was accomplished on the night of October 27th between the hours of 8:30 and 11:30 o’clock; or if it be assumed that such conspiracy continued for any purpose thereafter it was terminated when the Broses and appellant separated in Oakland; and that in either event the evidence called for by the question objected to related to an act of a co-conspirator committed after the termination of the conspiracy and therefore was inadmissible.

The common design of a criminal enterprise may extend, however, as appellant concedes, beyond the point of the commission of the act constituting the crime for which the alleged conspirator is on trial (People v. Opie, 123 Cal. 294 [ 55 Pac. 989 ]; People v. Mazzurco, 49 Cal. App. 275 [ 193 Pac. 164 ]; People v. Holmes, 118 Cal. 444 [ 50 Pac. 675 ]; People v. Rodley, 131 Cal. 240 [ 63 Pac. 351 ]); and, as declared in California Jurisprudence (vol. 5, p. 523), “The question as to when the design is accomplished and abandoned is one depending on the facts and circumstances of each case, and the nature and purposes of the conspiracy; and such question is one for the jury, as is also the question as to whether the acts proven were not a part of the design of the conspiracy” (citing People v. Holmes, supra; People v. Mazzurco, supra; People v. Rodley, supra). In other words, whether or not the subsequent act committed is the ordinary and probable effect of the common design or whether it is “a fresh and independent product of the mind of one of the conspirators, outside of, or foreign

In the present case, as above shown, the prosecution proved that immediately after driving Miss Fleming to her hotel the apartment wherein the robbery occurred was given up, and shortly after midnight that same night the alleged conspirators under unusual circumstances departed in an automobile for Oakland, and that within a few hours thereafter appellant disappeared and the Broses returned immediately to San Francisco and engaged apartments under an assumed name. The reasonable inference to be drawn from the foregoing evidence is that all of these subsequent acts were consummated in execution of a scheme to evade arrest and escape punishment, and, therefore, under the rule of the authorities cited, the trial court was justified, we think, in receiving the evidence in order that the jury might determine whether or not the original conspiracy extended up to and included the scheme to escape, and if so, whether the act of the Broses in registering under an assumed name was in pursuance thereof.

In this particular the present case does not differ materially from People v. Rodley, supra. There the charge was perjury for having given false testimony in connection with the probate of a will. The prosecution was allowed to prove that subsequent to the giving of the false testimony the matter was investigated by the grand jury and that a Mrs. Honseworth, who was the beneficiary named in the spurious document offered for probate and an accomplice in the crime of perjury for which Rodley was on trial, sought to induce a witness named Swearingen not to testify before the grand jury as to certain facts of which he was cognizant. Rodley sought to have the testimony excluded upon the ground that it was the act of a co-conspirator committed subsequent to the commission of the crime of perjury; but the supreme court said: “The object of the conspiracjr was to ‘loot’ the estate of the deceased Fuller; the perjury of de

And so here, if, as the jury decided by its verdict, the parties conspired to rob Miss Fleming, the obtaining possession of the jewelry was only one step in the execution of the enterprise, and it was still necessary to the successful consummation thereof that the parties to the conspiracy evade arrest. It is reasonable to believe, therefore, that any attempt by them to do so was part of the original design.

In support of his position regarding the point under discussion, appellant cites several California cases, all of which adhere to the fundamental rule against the admission of declarations and acts of a co-conspirator not made and done in furtherance of the common purpose. The restatement of the rule in the forepart of this opinion is an assurance that we do not presume to question its soundness; but, as has been well said, controversy usually arises with reference to its application to the circumstances of the indhjdual case, and for that reason the decision in one case is usually of little value as a precedent in another. (1 Greenl. on Ev., p. 305, n. 2.) Looking to the facts of the cases appellant cites, we find them to be materially different from those of the one before us.

The last four cases cited by him (People v. Oldham, supra, People v. Ayhens, 16 Cal. App. 618 [ 117 Pac. 789 ], People v. Smith, 151 Cal. 619 [ 91 Pac. 511 ], and People v. Collum, 122 Cal. 186 [ 54 Pac. 598 ]), all involved testimony given by persons not parties to the conspiracy as to declarations of co-conspirators made manifestly after the conspiracies had

In People v. Irwin, 77 Cal. 494 [ 20 Pac. 56 ], the judgment of reversal was based on several grounds, the opening sentence of the opinion reading: “The record herein bristles all over with errors. ’ ’ One of the points urged, however, was that the court instructed the jury that “falsehood, evasion, and silence” of a co-conspirator not on trial, when questioned after the crime had been committed, should be considered by the jury “as tending in some measure to establish the fact of a criminal conspiracy as charged.” In holding the instruction to be erroneous, the court pointed out that the evidence proved “beyond controversy” that the only conspiracy, if any existed, to which the defendant was a party, ended before the declarations in question were made, and declared that “No falsehood, evasion, or silence” of a co-conspirator, occurring after the deceased was killed, was admissible in evidence against the defendant under any circumstances, and in any event, the evidence was inadmissible to establish the existence of the conspiracy. In the case at bar Mrs. Brose was not interrogated subsequent to the alleged theft, and consequently no question of her declarations or demeanor under such circumstances has arisen.

In People v. Opie, supra, the testimony related to the ‘ ‘ appearance, conduct, and declarations” of a co-conspirator not on trial, apparently upon being questioned after the crime had been committed. Obviously, such testimony was inadmissible under the “falsehood, evasion, and silence” rule announced in People v. Irwin, supra. True, the prosecution,

The manner in which appellant presents and discusses the case of People v. Lee Chuck, 78 Cal. 317 [ 20 Pac. 719 ], upon which he strongly relies, is somewhat confusing. There the defendant was on trial for murder, and the prosecution introduced evidence showing that four other China-men were present at and participated in the killing. The defense sought to prove an alibi for two, and to show that the others, including Lee Chuck, killed the deceased in self-defense. Among the other points urged on appeal were two rulings relating to two distinct matters of fact. The principal ruling pertained to testimony showing the absence at the trial of three of the accused Chinamen. In connection therewith the prosecution was allowed to prove over defendant’s objection that, although diligent effort had been made to serve warrants of arrest upon the absentees, they could not be found. This evidence was admitted upon the theory advanced by the prosecution that the failure of the absentees to be present at the trial to explain what occurred at the time of the shooting was a circumstance to be taken against the defendant on trial, tending to show that the homicide was not committed in self-defense as claimed. In holding the admission of the testimony to be error, the supreme court said: “There is nothing to show that the defendant was in any way responsible for their absence, or that he was not as desirous that they should be present as the prosecution. This is to permit the act or conduct of one party, after a crime is claimed to have been committed, indicating his guilt, to be proved against another in no way connected with such act or conduct. We are wholly unable to see upon what rule of law or justice such a rule can be upheld,” (Italics ours.) And after discussing at some

In People v. Stanley, 47 Cal. 113 [ 17 Am. Rep. 401 ], the remaining case cited by appellant, the defendant was indicted for robbery, jointly with three others, named Collins, Me-(3-overn, and Smith. Stanley was tried separately and eon

Assuming, however, for the purpose of discussion, that there is some remote analogy in fact or principle between the ease at bar and the Lee Chuck and Stanley cases, it is evident that the latter are not to be taken as decisive of the present appeal, because the judgments of reversal therein were rendered during that period of time when it was the established law of this state that error being shown in the

Appellant’s next point is that the court erroneously refused to give an instruction proposed by him, relating to the witness Mrs. Brose. It reads as follows: “There has been testimony introduced in this case to the effect that (a) witness for the prosecution has previously been convicted of a felony and that .such felony was for the same offense for which the defendant is here on trial. You are instructed that such evidence was only admitted for a special purpose, that is, for purposes of impeachment of such witness and cannot he considered hy you, for any other purpose. The defendant in this action must be tried by you solely upon the evidence introduced in this case, and in determining the guilt or innocence of the defendant the fact that some other person has been previously convicted of the same offense cannot be considered by you as a fact in any way

Where a requested instruction is erroneous in part in its statement of the law it may be rejected as a whole. (People v. Metzler, 21 Cal. App. 80 [ 130 Pac. 1192 ]; People v. Davis, 64 Cal. 440 [ 1 Pac. 889 ]; People v. Walters, 98 Cal. 138 [ 32 Pac. 864 ].) In the present case that portion of the proposed instruction above italicized was manifestly erroneous, for the record clearly demonstrates that the fact of Mrs. Brose’s conviction was not elicited by appellant, nor admitted by the court for the purposes of impeachment or to discredit her as a witness. On the contrary, it shows that throughout the trial appellant relied almost entirely upon her testimony to establish his innocence; and on this appeal he has consistently endeavored to sustain the verity of her testimony, particularly with reference to what happened on the night of the robbery and the day following. In fact, she was the only one present at the dinner party to testify at this trial in refutation of Miss Fleming’s charges, and appellant afterward called her as a witness in his own behalf, thus vouching for her credibility. Moreover, it will be noted that at the time appellant revealed the fact of Mrs. Brose’s conviction he proved also that her husband had been acquitted, which would fairly indicate, we think, that the ostensible purpose of the cross-examination on this point was not to impeach or discredit Mrs. Brose as a witness, but to show that if Miss Fleming’s jewelry was stolen, a jury had already fastened the guilt upon Mrs. Brose alone.

The numerous cases cited by appellant in support of his last point merely adhere to the settled rule that any affirmative evidence offered, either by the prosecution or the defense, to show the conviction or acquittal of another person of the crime for which the defendant is on trial is incompetent; and in those cases where such testimony was intro

Nor do we find any merit in appellant’s final contention that the prosecuting attorneys were guilty of prejudicial misconduct in their arguments to the jury. As pointed out, the testimony of Mrs. Brose as to her conviction was not offered or admitted for any limited purpose, and being brought out by appellant, the prosecuting attorneys were entitled to comment upon it for what it was worth. As to the reference made by said attorneys regarding appellant’s disappearance, it has long since been the rule that flight of a person accused of crime may be considered as a circumstance indicative of guilt. The circumstances surrounding appellant’s disappearance fairly justify the inference that he fled after the separation in Oakland. Argument on the point was therefore legitimate. The third claim of misconduct has reference to the comments made by respondent’s attorneys in relation to the act of the Broses in registering at the hotel under an assumed name. Appellant concedes, however, that he offered no objection to this line of argument at the time it was being made, nor did he assign the same as misconduct; consequently, under the well-established rule his objection for the first time on appeal comes too late.

After reviewing the entire record, including the transcript of the evidence, we do not find that any error has been committed in the trial of the action which has deprived appellant of the fair trial to which he is entitled, nor do we believe that the verdict has resulted in a miscarriage of justice; consequently, we a.re without authority to disturb the jury’s finding. The judgment and order appealed from are therefore affirmed.

Tyler, P. J., and Parker, J., pro tem., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on April 21, 1928, and a petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 21, 1928.

All the Justices concurred.