People v. Shaw

Appellant Fred Shaw and others,

including Robert Williams, John Cartwright, and Robert Andrews, were indicted upon two counts: (I) violation of sections 484 and 487 of the Penal Code, grand theft, committed about March 20,1951, by willfully, unlawfully and feloniously taking $6,000, the property of Sam E. Frudakis; (II) violation of section 182 of the Penal Code, committed about March 20, 1951, by willfully, unlawfully and feloniously conspiring to commit grand theft, and in pursuance of the object of the conspiracy they committed these overt acts, (1) Williams carried on a conversation with Frudakis, (2) Shaw met with Frudakis in a restaurant, (3) Andrews received $6,000 from Frudakis, and (4) Cartwright met with Shaw and Frudakis.

Shaw was convicted on both counts. He has appealed from the judgment and from an order denying his motion for a new trial. Williams pleaded guilty to grand theft. Cartwright did not appear at the trial, and was neither considered nor convicted. Andrews, acquitted of grand theft but convicted of conspiracy, appealed and then dismissed his appeal.

Shaw does not question the sufficiency of the evidence to support the verdict against him. In support of his appeal, Shaw claims: the acquittal of Andrews on Count I voided Andrews’ conviction on Count II and Shaw’s conviction on both counts; and that erroneous instructions were given on alibi, impeachment, and false confessions.

(1) Concerning the assertedly inconsistent verdicts and their effect, Shaw reasons that Andrews’ acquittal of grand theft negatives Overt Act No. 3; that Overt Acts 1 and 2 were insufficient to support a conspiracy charge (apparently

The different and much more extensive part which Shaw played, than did Andrews, demonstrates the very considerable difference in the evidence tending to connect them, respectively, -with the crime. “When there is the slightest difference in the evidence as between two persons jointly tried the trier of facts may jointly weigh the evidence and make allowance for such difference, and when that is done and one is acquitted and the other convicted, the fact that the evidence involves the acquitted person to some extent will not require the exoneration of the other. [Citations.]” (People v. Edwards, 81 Cal.App.2d 655 , 661 [ 185 P.2d 74 ]; a petition for a hearing by the Supreme Court was denied. See, also, People v. Powell, supra, 99 Cal.App.2d 178 , 182-183; People v. Stembridge, 99 Cal.App.2d 15 , 24-25 [ 221 P.2d 212 ] ; People v. Taylor, 88 Cal.App.2d 983 , 987-988 [ 199 P.2d 751 ] ; in each of which a petition for a hearing by the Supreme Court was denied.)

Shaw’s claim that Andrews’ acquittal of grand theft left no basis for Andrews’ conspiracy conviction is based upon a theory that such acquittal amounted to a finding that Overt Act 3 (that Andrews received $6,000 from Frudakis in pursuance of the object of the conspiracy) was not com

Accordingly, there is no logic in the argument that the acquittal of Andrews on the grand theft charge nullified his conviction on the conspiracy charge and that such acquittal and nullification in effect nullified Shaw’s conviction on. each charge. This case is not at all like Oliver v. Superior Court, 92 Cal.App. 94 [ 267 P. 764 ], or In re Johnston, 3 Cal.2d 32 [ 43 P.2d 541 ], in each of which the only overt acts alleged in the conspiracy charge were the substantive crimes charged in other counts. Acquittal on each of those other counts naturally operated as a finding that none of the overt acts was committed. Our case is, instead, quite like People v. McNamara, 103 Cal.App.2d 729 , 737-738 [ 230 P.2d 411 ], People v. Gilbert, 26 Cal.App.2d 1 , 22-23 [ 78 P.2d 770 ], and People v. Yant, 26 Cal.App.2d 725 , 731-732 [ 80 P.2d 506 ], in each of which there was proof of one or more overt acts alleged in the conspiracy count, which acts, as in our case, were separate and distinct from the specific crime or crimes charged in other counts of which a defendant was found not guilty.

We conclude that there is nothing in this case to prevent these provisions of section 954 of the Penal Code from applying: “An indictment . . . may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class . . . under separate counts. . . . The prosecution is not required to elect between the different offenses or counts . . ., but the defendant may be convicted of any number of the offenses charged ... A verdict of acquittal of one or more counts shall not be deemed or held to be an acquittal of any other count.” (Emphasis added.) That these words mean what they say has been too thoroughly and repeatedly expounded to require repetition. (See People v. Stangler, 18 Cal. 2d 688 , 695-696 [ 117 P.2d 321 ]; People v. Amick, 20 Cal.2d 247 , 250-254 [ 125 P.2d 25 ]; People v. Codina, 30 Cal.2d 356 , 360-361 [ 181 P.2d 881 ]; People v. Nye, 38 Cal.2d 34 ,

(2) Shaw claims error in the refusal of his requested instruction on alibi and the giving of another instead. Bach instruction mentioned the fact that the defendants had introduced evidence to the effect that they were not present at the time and place of the commission of the alleged offense. The rejected instruction then concluded: “You are to understand that it is not the duty of the defendants to prove, under such a defense, that they were not present at such time and place, hut it is the duty of the prosecution to prove beyond any reasonable doubt that they were so present, and if any evidence offered by the defense leaves in your minds any reasonable doubt as to their whereabouts on the occasion in question, it is your duty to find both of them not guilty.”

In lieu thereof the court instructed: “If after a consideration of all the evidence you have a reasonable doubt whether or not the defendants were present at the time the crime was committed, they are entitled to an acquittal.”

Shaw claims the court’s instruction could have misled the jury into believing that the defendants had the burden of proving their asserted alibi beyond a reasonable doubt.

The point is not well taken. The instruction given is not susceptible of such an interpretation. It simply told the jury that if their consideration of all the evidence left them with a reasonable doubt as to defendants’ presence, they must acquit. That was an accurate and clearly understandable statement of the applicable provision of law. (People v. McCoy, 25 Cal. 2d 177 , 184 [ 153 P.2d 315 ]; People v. Lewis, 81 Cal.App.2d 119 [ 183 P.2d 271 ]; People v. Spillard, 15 Cal.App.2d 649 [ 59 P.2d 887 ].)

(3) Did the court properly instruct concerning the limited purpose and use of evidence of prior conviction of a felony?

It came out during defendant Shaw’s interrogation as a witness that he had previously been convicted of a felony. He requested, and the court refused, the following instruction: “The court instructs the Jury that the fact that one of these Defendants has stated in reply to a question asked by the prosecution that he was on a former occasion convicted of a felony, is not to be taken by you as any evidence whatever

Instead, the court instructed as follows: ‘ ‘ The fact that a witness has been convicted of a felony, if such be a fact, may be considered by you in judging the credibility of that witness. The fact of such a conviction does not necessarily destroy or impair the witness’ credibility, and it does not raise a presumption that the witness has testified falsely. It is simply one of the circumstances that you are to take into consideration in weighing the testimony of such witness.”

Shaw claims he was entitled to have the jury told “in no uncertain terms” that his prior conviction of a felony was “not evidence of guilt or innocence of the crime charged.”

The difference between the two instructions is largely one of emphasis. The requested instruction could properly have been given. (People v. Miceli, 101 Cal.App.2d 643 , 650-651 [226 P.2d l4].)

However, we do not consider that the instruction given was improper or misleading, in view of the rulings made in People v. Hardwick, 204 Cal. 582 [ 269 P. 427 , 59 A.L.R. 1480 ], and People v. Buzsell, 15 Cal.2d 654 [ 104 P.2d 503 ]. In the Hardwick case an instruction requested and refused was substantially the same as that given in our case. Holding that refusal erroneous, the Supreme Court said: “It is not debatable that the instruction asked by defendant correctly states the law applicable to the situation.” (P. 589 of 204 Cal.) In the Buzzell case, instructions given and refused were very similar to those given and refused in our case. Upholding the action of the trial court, the Supreme Court said the lower court had “clearly informed the jury that evidence of a prior conviction suffered by any witness, whether he be the defendant or another, was a factor to be considered only in connection with the weight to be accorded to the testimony of said witness. In our opinion, the instruction properly confined the evidence of a prior felony conviction to the credibility of the witness.” (Pp. 661-662 of 15 Cal.2d.)

(4) Did the court commit prejudicial error in the giving of an instruction concerning false confessions?

The court in its instruction to the jury defined “confessions, ’ ’ forbade the jury from considering a confession unless voluntarily made, advised them they were the judges whether

Such an instruction was deemed prejudicially erroneous in People v. Ford, 89 Cal.App.2d 467 , 472-473 [ 200 P.2d 867 ]. However, in that ease there was only slight evidence of guilt aside from the confession and there was additional error which the court held reversible. The vice of the instruction is that in effect it “permits the jury to infer the guilt of an accused from the falsity of his confession, and the italicized portion [the portion quoted above] would appear to be clearly erroneous when given without direct qualification by appropriate limiting instructions. . . . Assuming that under some circumstances a jury might be told that a voluntary but false confession has some probative value, the instruction should, nevertheless, be carefully qualified to point out the evidentiary effect of such a confession.” (People v. Woods, 35 Cal.2d 504 , 510-511 [ 218 P.2d 981 ].) A false confession “is not evidence from which the jury may infer that the one who falsified committed the illegal act. When the confession is false, it may not be used to prove the truth of that which has been ‘ confessed. ’ Without explanation concerning the purpose of admitting a false confession the instruction is erroneous, although under certain circumstances, with adequate clarification for the guidance of the jury, it may be given. If the instruction here challenged was given to inform the jury that a false confession, when relevant, may be used to prove a fact other than the matter confessed, the charge was completely inadequate for that purpose. If the purpose of the instruction was to tell the jury that a false confession may be considered in connection with the issue as to the credibility of a witness, it was likewise incomplete without supplementary explanation.” (People v. Liss, 35 Cal.2d 570 , 575 [ 219 P.2d 789 ].) In our case we find no instructions given that could appropriately serve to qualify, explain and clarify the questioned instruction. (See People v. Chessman, 38 Cal.2d 166 , at p. 181 [ 238 P,2d 1001 ], for “instruction correctly ex

However, in the Woods and Liss cases, the instruction was deemed nonprejudicial in view of the fact that there was evidence other than the confessions which amply supported the convictions. Likewise, in our case, there is other evidence, the testimony of Frudakis, amply substantial in character, which supports the verdicts. For that reason we deem the giving of the questioned instruction, though erroneous, was not prejudicial. For like reasons, similar instructions were held erroneous but not prejudicial in People v. Mize, 100 Cal.App.2d 584 , 587-588 [ 224 P.2d 452 ], and People v. Harmon, 110 Cal.App.2d 545 , 549-552 [ 243 P.2d 15 ].

The judgment and the order appealed from are affirmed.

Peters, P. J., and Bray, J., concurred.