People v. Le Baron

By an information filed in the superior court of Merced County by the district attorney thereof the defendant was charged with violating the provisions of the “State Poisons Act,” so called. (Stats. 1907, p. 124, as amended by the legislature of 1925— Stats. 1925, p. 137.)

The information, in two separate counts, accuses the defendant of the commission of two different offenses under said act, to wit: 1. Having in her possession cocaine, a poisonous drug; 2. Having in her possession morphine, also a poisonous drug.

The trial of the defendant upon said charges resulted in her conviction by the jury of each of said offenses.

The points presented and vigorously pressed for a reversal are: 1. That the testimony relied upon by the -People for a conviction-—in fact, the only testimony, as is the claim, tending to support the allegations of the information was that of an accomplice of the accused in the alleged commission of the crimes charged, and that such accomplice’s testimony was not corroborated by testimony independent of that of such accomplice in the manner prescribed by section 1111 of the Penal Code; 2. Erroneous rulings on the admission of certain testimony; 3. That neither count of the information states a public offense.

It appears that in the city of Merced there was a house known as the “Palace Rooming House” or “Palace Rooms.” At this house, at the times connected with the present inquiry, transients could secure lodgings and, if desired, according to the testimony of the alleged accomplice, and which testimony is strongly corroborated by circumstances, a customer or lodger could secure the unsavory companionship for the night or even for a less permanent duration of time of a female abandoned to the lowest vices to which a human of that sex can descend. In other words, speaking plainly, and in perfect accord with the facts and circumstances developed through the evidence, while it is true that a person could secure a room at said house to be used solely for the purpose of rest, it is also true that the place was conducted as a house of assignation or prostitution. It further appears that in the months of May, June, and July, 1927, a woman known as May Howard, also known as “May Wilson,” had said house under lease and owned the furniture that it then contained; that, during that time and down to July 14, 1927, said May Wilson, by which name we will hereinafter refer to that party, did not herself, or personally, manage or conduct said house; nor was she then about the premises very often, but that she employed a young woman, of the age of twenty-two years, and who was known as Dewie Dale, to manage the establishment for her (Wilson); that Miss Dale did manage the place during the months mentioned. The evi

At the trial of the defendant the chief of police testified to the facts embraced within the above general statement, in so far as was concerned his connection with the occurrences at the rooming-house after he appeared there. The chief further testified: That, in addition to the narcotics, the Dale woman also took from the ceiling of the toilet and delivered to him a package containing “little rubber tubes,” “some little glass vials,” a catheter, etc.; that, about an hour after the women were confined in jail, he, with Dewie Dale, returned to the rooming-house, the latter having told him at the jail that there were some other articles at the house belonging to the narcotic equipment. Dale, on that occasion, after looking about the house for a time, found in the drawer of the phonograph stand a box containing “hypodermic needles,” and passed the box and its contents over to the chief. The latter further testified that Dale delivered to him as a part of the “drug outfit” a small syringe. The witness was not certain

Dewie Dale, testifying for the People, stated: That on the 30th of July, 1927, she was engaged in the business of prostitution at the “Palace Hotel” in Merced, and that the defendant at the same time and place was engaged in the same business. (This testimony was received without objection, and no motion to strike it from the record was made by defendant’s counsel or by defendant herself.) Continuing, the witness said: That she placed the cases and the package of cocaine “in the attic” (as she termed it) of the toilet, “punching a hole through the ceiling for that purpose, by the direction of Paul Le Baron, given in the presence of the defendant; that one of the cans was so concealed within the last two weeks of June, 1927, and the second can, by his direction, placed in the same place about two or three weeks after putting the first can there; that the “little rubbers” and glass vials were, by direction of Le Baron, by her put in the same place, wrapped in a separate package, as was also the cocaine. The can of morphine last placed in the ceiling of the toilet, she said, was given to her by Paul Le Baron about half an hour after he and defendant arrived at the house from San Francisco; that Le Baron “took it from his bag”; that “he (Le Baron) said: ‘Dewie, take this can and put it in the plant with the other’ ”; that, as Dewie took the can, Le Baron said to her: “Just wait a minute; I have something else”; “So,” continued Dewie, “he went through his bag and started to look for the cocaine, and he could not find it, and so Isabel says: ‘Just a minute; I will get

The defendant testified that she had known Paul Mc-Cracken, or Le Baron, for about six years prior to the time of the trial of this case, and that, about a year prior to the trial, she and Paul intermarried in Jackson County, Oregon. She testified that she and her husband had been occasional visitors to the Palace Rooming House and visited the house in the month .of June, 1927; she admitted that she acquired from May Wilson the latter’s leasehold in the premises and also purchased the furniture in the house and took possession thereof on the 14th of July, 1927, but that a written transfer was not executed until the twenty-seventh day of July of that year; that she was not in good health at the times referred to and for that reason she employed Dewie Dale, who had been conducting the place for May Wilson, to take charge of the place and manage it until she (defendant) was herself able to do so. She stated that she first met Dewie Dale at a roadhouse near Sacramento city on September 17, 1926, at which roadhouse Dewie was employed, and that she again met her in January, 1927, at her (defendant’s) house in Los Angeles ; that she became interested in the proposition of taking over the Merced rooming-house through the suggestion of Dewie Dale. Defendant, in reply to questions by her own attorney, stated that her husband (Paul Le Baron) was “what is known as a drug addict,” and that she herself was in the habit of taking morphine once a week. In assumed mitigation of this habit of herself and husband, she explained that both took the narcotics because of “ill health”; that, as to herself, she used the morphine by the advice of her physician for the purpose of relieving herself from the bodily pains incident to her ill health or the disease, whatever its specific nature was, from which she was and had for a year been a sufferer. She in effect admitted that she was a prostitute, a proposition as to which further consideration will be required when we take up for determination the point involving an attack on certain rulings as to the admissibility of certain testimony and upon which a demand for reversal is predicated.

As to the quantum and the quality of proof essential to the corroboration of the testimony of an accomplice to justify, legally, a conviction of the accused upon such testimony, section 1111 of the Penal Code provides: “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.”

It will be noticed that the language of the foregoing section is, in substance, that the corroborating testimony is sufficient if it tends to connect the defendant with the commission of the offense, and the courts of this and of many, if not all, of the other state jurisdictions, in construing that language, have uniformly held that if the corroborating evidence of itself tends so to connect the defendant, it sufficiently measures up to the requirements of the section, even though it be slight, “and entitled, when standing alone, to but little consideration.” (People v. McLean, 84 Cal. 480 , 482 [ 24 Pac. 32 ]; see, also, People v. Melvane, 39 Cal. 616 ). “If,” says the court, in People v. Blunkall, 31 Cal. App. 778 , 783 [ 161 Pac. 997 , 999], “there be some independent evi

It seems to us very clear that the reading of the evidence, as in conspectus form it has hereinabove been reproduced, cannot leave in the mind of one free from a partisan interest in the case any doubt that there are facts and circumstances brought out by evidence independent of the testimony of Dewie Dale which in probative effect extend beyond that quantum of proof which merely tends to connect the accused with the commission of the offenses with which the information charges her. Indeed, the facts and circumstances referred to were in part brought into the record by the defendant’s own admissions and are these: 1. That the defendant and her husband visited and temporarily stopped at the rooming-house on several different occasions in the middle part of the month of June, 1927, and also several different times in the month of July, prior to the fourteenth day of that month, on which date the defendant took possession of the premises under the lease transferred to her by May Wilson; 2. That, from and including the last named date she held possession of the house and through Dewie Dale, her agent, managed the business conducted thereat, until a few days prior to the 30th of July, when, as she admitted to the chief of police, she was herself in personal charge of the place; 3. That her husband was a drug addict, or, as that phrase really means, an habitual or confirmed user of narcotics, and that she herself, though denying that she was a “drug addict,” used morphine once a week; 4. That (the chief of police testified) when Dewie Dale returned to the house with that officer, after her arrest, to look for and deliver to him, if she found them, certain articles which are necessary to he used where opiates are hypodermically administered, she searched several different rooms in the house and several different places in the rooms before she was able to locate any such articles, and finally found a number of “hypodermic needles” in the drawer of the- phonograph stand, which was then in the room occupied by the defendant

It may well here be suggested, in order to meet any argument which might be offered upon the proposition, that even if the defendant herself was not a drug addict (a matter for the jury to determine, notwithstanding her positive denial that she was) but held possession of the drugs for use by her husband or by Dewie Dale or for both, that fact would not constitute a legal defense to the charges alleged against her. Nor would it be a defense to said charges if it appeared that the possession was joint—that is, if the drugs were kept in the house to be used by herself, her husband, and Dewie Dale. In that case each would equally be subject to punishment for such unlawful possession. This proposition, though, is so clearly a commonplace that the citation of cases to support it is entirely unnecessary, yet, it may not be wholly amiss to state that precisely the same proposition is suggested in the case of the People v. Hay, 74 Cal. App. 464 , 472. [ 241 Pac. 275 ].

The second point, as above declared, is founded on rulings admitting certain testimony which, it is claimed, resulted in seriously prejudicing the accused in the minds of the jury. On cross-examination, the district attorney examined the defendant as follows: “Q. What is your occupation? A. I have none. Q. Haven’t you been practicing prostitution? A. No, sir, not for one year, my health would not permit it. Q. You have not practiced prostitution nor been in a house of prostitution for one year? A. I have been in a house of prostitution, but I have not practiced it. Q. You were not working ? A. I was not working, no sir. Q. Weren’t you working here for May Wilson? A. No, sir. Q. Never? A. No, sir.” There were no objections interposed by the defendant’s counsel to those questions.

The district attorney, assuming (upon what theory or for what purpose we have been unable to discern) that it was not only legally proper but important to show, if he could, that the defendant had practiced prostitution within the year during which she stated that her health was such as to prevent her from actually engaging in that business,

In rebuttal, the prosecutor introduced as a witness one A. J. Kane, the head of a San Francisco detective agency, who testified, in response to questions by the district attorney, that on the night of the 9th of August, 1927, he went to the apartment of the defendant at 355 Fulton Street, in San Francisco, to look for and arrest Paul Le Baron; that upon entering the apartment, he saw a man in a room therein partly undressed and engaged in putting his clothes on; that he asked the man if he was McCracken (or Le Baron), and defendant interposed, saying, “he (the ‘man’) is my uncle,” to which the “man” replied: “Uncle, hell! I am not; I paid her $14.00 to stay here all night.” To that testimony the defendant made no objection. It should be explained, however, that after the detective had stated his purpose in visiting the defendant’s apartment, to wit: to arrest Le Baron “for Merced County,” counsel for the defendant objected to the testimony as “irrelevant, immaterial and incompetent”; but, upon the statement by the court that, while the defendant could not be impeached by testimony of particular acts, the testimony proposed, as explained by the prosecutor, was nevertheless admissible for

The cross-examination of the defendant by the district attorney looking to the development of the fact before the jury that the accused was a prostitute was manifestly erroneous and should not have been permitted. (People v. Un Dong, 106 Cal. 83 , 87, 88 [ 39 Pac. 12 ]; People v. Crandall, 125 Cal. 129 , 134 et seq. [ 57 Pac. 785 ]; People v. Vatek, 71 Cal. App. 453 , 468 [ 236 Pac. 163 ].) In People v. Un Dong, supra, the defendant (on trial for the crime of assault with a deadly weapon alleged to have been committed on a public street in the Chinese quarters of San Jose) and an associate, one Ah Wei, lay in wait in the night-time for the prosecuting witness, one Ah Bong, to appear upon the street from a restaurant where he was known by defendant to be at the time, and when, finally, Ah Bong made his appearance upon the street the defendant told Ah Wei to shoot; that the latter thereupon fired two shots at Ah Bong, one of which hit him in the back. In cross-examining the defendant, the district attorney asked him, among other questions, if it was not true that the house he resided in was a house of prostitution. Objection .by the defense to that question was overruled,

It will thus be seen that, as above stated, counsel for the defendant, in the trial of the ease, from its beginning to its conclusion, appears to have been of the opinion that the malodorous character of the business maintained in the “rooming” house as well as the bad personal character of the defendant was a legitimate subject of inquiry in the case. Allowing all that testimony to go before jury without objection clearly supports that conclusion, and as clearly does it place the defendant before this court in a position in which consistently or logically or legally she cannot ask for a reversal of the case because the testimony

Defendant emphasizes the proposition that timely objection was made in her behalf against a certain letter introduced in evidence by the district attorney by way of rebuttal. The record shows that Dewie Dale stated in her direct examination that she was in love with Paul Le Baron, and that she had frequently had sexual relations with him, not only with the knowledge but with the express approval of the defendant. On cross-examination, and upon the theory that it affected the credibility of her testimony, the defendant’s counsel asked Miss Dale if the motive prompting her to cause the arrest of the defendant was jealousy of the latter’s relations with Paul Le Baron. The witness replied in the negative, but declared that she caused the arrest of defendant because Le Baron had the day previously severely beaten her about the face and body, had threatened to kill her, and that defendant had encouraged Paul to beat her and also stated that he (Paul) ought to “bump her off,” meaning that he ought to kill her. Under the guise of rebuttal and upon the assumption that he had a right to show that jealousy was not the reason Miss Dale caused defendant to be arrested, the district attorney offered in evidence a letter (referred to above) written by the defendant at Los Angeles under the date of May 23, 1927, and addressed to Dewie Dale, at Merced, in which defendant, addressing Dewie in endearing terms, gave a graphic account of the trip of herself and Paul Le Baron in an automobile to Los Angeles, gave a somewhat vivid description of the harrowing details of a physical combat which Paul had had with an unnamed drunken Mexican who, it seems, had been traveling with them, told of the narrow escape of Paul from death at the hands of the Mexican, of how valiantly Paul fought the “crazy Mexican” and the skill with which he successfully defended both himself and defendant against

The last point (and in regular order it should have been the first to be considered) to which attention is invited is that the information fails to state the offenses therein sought to be charged because the defendant is not

To the same effect are the cases of People v. Hartman, 130 Cal. 487 [ 62 Pac. 823 ] ; People v. Pera, 36 Cal. App. 292 , 304 [ 171 Pac. 1091 ]; Commonwealh v. Weiss, 139 Pa. St. 251 [ 23 Am. St. Rep. 182 , 11 L. R. A. 530 , 21 Atl. 10 ] ; State v. Gould, 40 Iowa, 374 ; Commonwealth v. Holstein, 132 Pa. St. 357 [ 19 Atl. 273 ] ; Rex v. Ogden, 6 Car. & P. (Eng.) 611. (See, also, Pen. Code, sec. 7.)

We may add that if the defendant in a case, like the one here, is prosecuted under the State Poison Act, and his possession of any of the narcotics falling under the condemnation of the statute is upon the prescription of a physician given in good faith or for purely medicinal purposes, he may shield himself against punishment by exhibiting the prescription and so proving the fact that

The judgment and the order are affirmed.

Plummer, J., and Bartlett, J., pro tem., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on July 14, 1928, and the following opinion then rendered thereon:

The defendant petitions for a rehearing of the above-entitled cause and states that in its original opinion this court misapprehended the testimony in certain particulars. The petition states that there is not any testimony showing that Dewie Dale found the hypodermic needles in a room occupied by the defendant and her husband alone. The record clearly shows that the chief of police stated that the hypodermic needles were found in a room which the defendant said was occupied by her. (Tr., pp. 9 and 10.) It is true that the defendant stated that the same room had been occupied part of the time by Dewie Dale. But the defendant herself admitted that when she was at the house she occupied said room. The fact that Dewie Dale occasionally occupied the room does not militate in the least against any inference to be drawn from the fact that the defendant and her husband occupied said room whenever they were at the house.

The defendant also states that the toilet in which the narcotics were found was not connected directly with the room above referred to, but was connected with the room at the “other” end of the hallway. The testimony is not clear upon this proposition; but it is of little importance when compared with all the circumstances of the case taken together.

We do not propose to go over the petition for a rehearing in detail. It merely repeats the argument made in the original briefs. We are satisfied that the testimony and the circumstances developed thereby go beyond the mere corroboration of the testimony of Dewie Dale as required by the statute, and that the jury were well warranted in finding from all the circumstances that the defendant and her husband had possession of the narcotics referred to. As stated in the original opinion, it might be true that the

The petition for a rehearing is denied.

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 August 13, 1928.

All the Justices present concurred.