People v. Wayne

Defendant appeals from a judgment on jury verdicts, convicting him on three counts, and from an order denying a new trial.

Questions Presented

1. As to count one, was May an accomplice of defendant, so as to require corroboration of his testimony?

2. Sufficiency of evidence as to all counts.

3. Alleged errors in admission and rejection of evidence.

4. Alleged misconduct of court and district attorney.

5. Alleged error in instructions.

Record

Defendant Wayne and one Redden were jointly indicted on three counts: One—violation of section 653f, Penal Code, by soliciting Joseph May to offer and join in the offer of a bribe to Alameda police officials to influence them corruptly in the investigation and arrest of said May for violating

Evidence

Although the reporter’s transcript consists of 1355 pages, the case is based primarily upon the testimony of May and Redden as opposed to that of defendant. Generally, the two testified that May, who was then on probation for bookmaking, suggested to Redden that he contact someone who could arrange police protection in the city of Alameda so that May could operate bookmaking there. Redden contacted defendant and explained the situation. Later defendant informed Redden that he had contacted a certain police lieutenant who said the protection could be arranged. Redden then invited defendant to meet May at Redden’s home. At that meeting May explained how much book he was taking in. After some discussion May and defendant agreed that defendant was to receive 20 per cent of the net take of the book for the payoff, as a starter to see how it would go. This money was to be split three ways, the police getting one part, Redden and defendant each one part. It was to be paid by May to Redden who was to give it to defendant. Defendant stated that he would have to tell the police that he was to be May’s partner as they did not let everybody come into Alameda. He also explained the conditions of operating required by the lieutenant. Defendant left saying that he would contact the police to see if the location May had proposed would be satisfactory and then would let Redden know. Defendant later phoned Redden that the location was all right. May started operating in late September, 1950. November 28th, Redden phoned May to come to his home as the matter was important. Defendant was there and stated that May “was supposed to be knocked off between the hours

Defendant’s Testimony

Defendant’s business, among other things, was servicing slot machines at an Alameda club, where he met the lieutenant and several other police officers. He had visited at the lieutenant’s home and the latter at his. He admitted getting a slot machine for one of the police officers. Defendant denied that he had ever agreed to receive or received any money from May or Redden for police protection or for payments from a book. His version was that Redden had asked him if he would lend a friend of his $1,000 repayable $100 a week for 12 weeks. On being told that he might, Redden told him to bring the money over to Redden’s house when he brought a television set that defendant was selling him. When he got to the house a man was there whom Redden introduced as “Joe.” Redden said, “you fellows make your own arrangements.” Defendant said that he understood he was to be paid back at the rate of $100 per week plus $200 interest. May said that he would do his best to pay it back at that rate. If it was “a little light” one week he would make it up the next week or over the period of a month, it would average $100 per week. Redden suggested that May could leave the money each week and he would give it to defendant. Redden had told defendant that May had a restaurant and

Accomplice

As to the second and third counts, the court fully instructed concerning accomplices and the necessity for corroboration of them. As to count one the court instructed that as a matter of law Redden was an accomplice of defendant, but that under section 653f of the Penal Code “the person solicited cannot be prosecuted for soliciting the offer of a bribe, and therefore is not an accomplice.” This instruction, considered with the instructions on corroboration, told the jury, in effect, that May was not an accomplice and his story did not need to be corroborated, hence the jury could convict on May’s testimony alone. People v. Coffey, 161 Cal. 433 [ 119 P. 901 , 39 L.R.A.N.S. 704 ], held that the definition of an accomplice under section 1111, Penal Code, which then contained no definition, was the same as at common law and in the federal courts, and that the true test and rule was “If in any crime the participation of an individual has been criminally corrupt he is an accomplice.” (P. 448.) That is no longer the rule, for subsequently section 1111, Penal Code, was amended providing the present definition: “An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” In People v. Shaw, 17 Cal.2d 778 , 781 [ 112 P.2d 241 ], it was charged that the defendants “ ‘ “did . . . aid and abet, advise and encourage, and by threats, menaces, command and coercion, compel and cause . . .” ’ ” one Gravatt, who was the manager of the civil service department of the city of Los Angeles, and other employees in the civil service department, to alter and falsify certain civil service records then in the custody of Gravatt and the other employees. In holding that Gravatt was the accomplice of the defendants the court quoted section 1111 as amended and stated (p. 799): “‘Quoting from 8 California Jurisprudence 173: “The word ‘accomplice’ has been defined as including all persons who have been concerned in the commission of an offense.” [Citations. Of the citations given here, People v. Kraker, 72 Cal. 459 [ 14 P. 196 , 1 Am.St.Rep. 65 ], People v. Ruef, 14 Cal.App. 576 [ 114 P. 48 , 54], and People v. Bunkers, 2 Cal.App. 197 [ 84 P. 364 , 370], were prior to the amendment to section 1111, while People v. Kinsley, 118 Cal.App. 593 [ 5 P.2d 938 ]; and People

In People v. Lima, 25 Cal.2d 573 [ 154 P.2d 698 ], the defendant was charged with buying stolen olives from Amos and Larkin, who admitted they stole them. The principal question presented was whether the thieves were accomplices of defendant as receiver of the stolen property, so as to require corroboration of their testimony. The court stated (pp. 576, 577, 578): “It is now settled in this state that the thief and the receiver of stolen property are not accomplices . . . And conversely, it has been said that inasmuch as a thief cannot receive from himself, he cannot be an accomplice of the receiver. The thief and the receiver are therefore generally said to be guilty of separate and distinct substantive offenses, and not being ‘liable to prosecution for the identical offense’ are not accomplices within the meaning of that term as defined in section 1111 of the Penal Code. There is, however, a well-established exception to this general rule. The rule and the exceptions are stated in 2 Wharton's Criminal Evidence 1248-1250, section 741, where it is said that ‘. . . an exception to this general rule has ensued where the thief and the receiver of stolen- property conspire together in a prearranged plan for one to steal and deliver the property to the other, and pursuant to such plan one does steal and deliver to the other; it is held in this ease that the receiver is an accomplice of the thief, and the thief is an accomplice of the receiver . . .’

While it is true that May, by asking Redden to find someone who could obtain police protection for him, started the chain of circumstances culminating in the crime charged, the evidence justifies the conclusion that the three, May, Redden and defendant, conspired together to join in the offer of the bribe. For that reason it is not necessary to discuss the technical differences between a solicitor and a solicitee. In the first meeting between defendant and May the former told May he could insure him for protection for $200 per week. Defendant further stated that the police who were to get a part of that money would be told that defendant was a partner in the enterprise. While at first blush it may seem unusual to state that one can solicit himself, it must be remembered that here May was no innocent member of the triangle. It was not the usual situation where persuasion has to be used to get the solicitee to accept the solicitation, as was the case in People v. Haley, 102 Cal.App.2d 159 [ 227 P.2d 48 ], and People v. Baskins, 72 Cal.App.2d 728 [ 165 P.2d 510 ], where it was held that one cannot solicit himself to commit a crime.

A conspirator adopts the acts of his fellow conspirator. The prosecution established a conspiracy of May, Redden and defendant to bribe. This was the major conspiracy. Prior thereto defendant and Redden conspired to bribe and one of the acts done in furtherance thereof was the solicitation of May. May joined this conspiracy to bribe, in fact was an active participant in it. Hence he could be held liable for his own solicitation. “If we were to allow the conspiracy element to be disregarded and the accomplice relationship thereby eliminated, the prosecution could circumvent the rule requiring corroboration of accomplice witnesses.” (People v. Lima, supra, 25 Cal.2d 573 , 578.) See, also, People v. Wallin, 32 Cal.2d 803 [ 197 P.2d 734 ], where the court held the person committing the murder was the accomplice of the defendant charged with the crime of being an accessory to the murder, and People v. Young, 132 Cal.App. 770 [ 23 P.2d 524 ], where it was held that a female who assisted in the commission by the defendant of the offense of pimping could be prosecuted for that charge although the statute defining the crime refers only to a male person. Also in People v. Bartol, 24 Cal.App. 659 [ 142 P. 510 ], it was held that a woman who aids a rapist may be charged with rape. Surely, if it can be held, as it was in the Shaw case, that a person who alters the books of a city is an accomplice of the person who aided, abetted, advised, encouraged, compelled and caused him to do such altering, and as in the Lima ease, that the thief is an accomplice of the receiver of stolen goods, it is reasonable to hold that under the conspiracy shown in this ease, May was an accomplice of defendant. Being such accomplice, defendant was entitled to an instruction that May’s testimony must be corroborated. The failure to so instruct was error and prejudicial error, even though, as we will point out later, there was corroboration as to the crimes charged in the second and third counts. Under the evidence, proof of bookmaking and keeping a room for bookmaking purposes did not necessarily prove the soliciting to bribe charge. The jury as to that charge may have relied on the testimony of the accomplices alone.

Defendant’s contention in this respect as to counts two and three is that there is no corroboration of the testimony of May and Redden, who admittedly under their testimony were accomplices of defendant. The equipment and paraphernalia found by the police when they raided May’s place amply demonstrates that he was engaged in bookmaldng there and that the place was occupied for that purpose. The testimony of May and Redden amply substantiates the finding that defendant aided and abetted in the operation there. In determining the sufficiency of the other evidence necessary to corroborate an accomplice, “there are certain established legal principles that serve as guides. It must ‘tend to connect the defendant with the offense,’ but ‘So long as corroborating evidence creates more than a suspicion of guilt, it is sufficient even though it “be slight and, when standing by itself” entitled to but little consideration.’ [Citations.] The necessary corroboration may consist of inferences from the circumstances surrounding the criminal transaction. [Citation.] It need not establish the precise facts testified to by the witness whose testimony it supports. (Ibid.) It is not necessary that the corroborative evidence prove the defendant is guilty of the offense. [Citation.] Such evidence is sufficient if it connects the defendant with the commission of the crime in such a way as reasonably to satisfy the trier of fact that the witness whose testimony it supports is telling the truth. [Citations.] . . . ‘ Whether the corroborating evidence by itself is as compatible with innocence as it is with guilt, is a question for the trier of fact, not for the reviewing court.’ (Italics added.) [Citations.]” (People v. Kendall, 111 Cal.App.2d 204 , 210 [ 244 P.2d 418 ].)

Applying these principles, it cannot be said as a matter of law that the corroborative evidence in this case is insufficient. “ The relationship of the men and all their acts and conduct . . . are corroborating circumstances.” (People v. Henderson, 34 Cal.2d 340 , 343 [ 209 P.2d 785 ].) The following matters constituted sufficient corroboration. Perhaps no one of them, taken alone, would be sufficient, but taking them together they make a strong circumstantial ease of defendant’s interest in May’s bookmaking business. Defendant had more than a speaking acquaintance with at least five important members of the police department. The telephone calls between Redden and defendant on the day of

Alleged Error

Defendant in his opening brief makes the broad blanket charge that the court erred on rulings on the admissibility of evidence in eight general matters. He gives no grounds for such charge, nor does he discuss the matter further than to state that the court erred in those matters. Typical of the kind of charge made is the statement that the court erred in admitting any evidence of the bookmaking activities of Redden and May. In his closing brief he states: “. . . the crux of appellant’s contention is that there is no legally admissible evidence in the entire record to support appellant’s conviction. In this connection we stressed the lack of corroboration of the testimony of the two chief witnesses for the prosecution, and covered this question extensively. We made these contentions after repeatedly reading the entire transcript and thoroughly reviewing the law on the subject. No individual or specific citations can be made as to those contentions, as a reading of the entire record is necessary in order to determine the validity of such contentions.” Without specifying why, or citation of authority, defendant contends the extrajudicial statements of May, Redden and defendant are inadmissible. Defendant has violated the rule set forth in People v. Goodall, 104 Cal.App.2d 242 , 249 [ 231 P.2d 119 ]: “It is the duty of the defendants to show error, and that means defendants are under an affirmative duty in that respect. It is not proper to attempt to shift that burden upon the court or respondent.” It might be pointed out that defendant himself offered Redden’s extrajudicial statements. These statements were admissible under the authority of People v. Suter, 43 Cal.App.2d 444 [ 111 P.2d 23 ]. The evidence concerning the relationship of defendant’s mother-in-law with Saucke (both of whom were witnesses for defendant) was admissible for the purpose of showing the interest and bias of Saucke. (See People v. Gould, 111 Cal.App.2d 1 [ 243 P.2d 809 ].) It was limited to that purpose by the court. As to

We have read the entire transcript and are unable to find any warrant for such blanket contentions. We fail to find any prejudicial error.

AT,T,uCT.r) Misconduct op Court and District Attorney

Defendant attacks almost everything said by the district attorney in his argument, although as to very few of his remarks did defendant object at the time. A great deal of the matter to which he objects was in answer to defendant’s rather vitriolic attacks on the district attorney. We fail to find any prejudicial misconduct in these remarks. Defendant attacks the district attorney also, because, he says, that subsequent to defendant’s conviction May and Eedden were given short county jail sentences, and that two other persons whom the evidence indicates might have participated in May’s bookmaking activities were never prosecuted. These are matters entirely outside the record, and of course have no place on this appeal. Moreover, considerable of the voluminous transcript is due to the constant iteration and reiteration by defendant of his claim that May and Eedden were receiving unduly favorable treatment by both court and counsel in having their sentencing continued from time to time until after the jury should decide defendant’s fate. Likewise the alleged preferential treatment of the other two persons-in not being charged at all was referred to on several occasions. The jury undoubtedly considered these matters in weighing testimony. [17] Probably goaded by defendant’s constant contention that in effect the district attorney was conspiring with May and Eedden to make up a case against defendant, the district attorney stated that the members of the grand jury believed that the evidence showed that defendant had committed the crimes charged. Defendant objected and assigned the statement as misconduct. The court should have then admonished the jury. In its final instructions, the court did give a direct and positive instruction to the effect that the indictment was a mere accusation and that it was not

Defendant’s own version of the alleged loan and his alleged disinterested advice to May to get out of the business, are so fantastic that the jury could have had no doubt that he was connected with May’s bookmaking operations.

Defendant contends that there was unfair criticism of defense counsel throughout the trial by the court and the district attorney. Our examination of the transcript discloses no "instances in which anything was done by the court in the nature of a rebuke of counsel which was not merited by counsel’s persistent refusal to accept" the court’s rulings as final. Nor can we find any action of the district attorney that was prejudicial. There was an occasional statement concerning defense counsel induced by the heat of the arguments between them, but nothing of serious import in view of the constant implication by defense counsel that the district attorney’s motive in this prosecution were ulterior.

Without objection, in response to a question on cross-examination, defendant stated that he had refused to testify before the grand jury on the ground of self-incrimination. Defendant’s counsel in his argument referred to the fact that defendant had voluntarily gone before the grand jury but refused to testify on his counsel’s advice. Thereafter the district attorney commented on his failure to testify. No objection was made to such comment. Counsel has cited no authority holding that such conduct is improper. (See Cal. Const., art. I, § 13; Pen. Code, § 1323; People v. Jones, 112 Cal.App.2d 430 , 433 [ 246 P.2d 683 ].) Likewise we find no prejudicial restriction of defendant’s cross-examination. While occasionally the court attempted some limitation, the matters limited were gone into again and again.

Defendant makes the blanket charge that the court erred in the giving and refusing of instructions. Except for the refusal to instruct on accomplices as to the first count, and the giving of an “instruction on the Saucke-Kiester” testimony, and an instruction on corroboration of the charge under section 653f, Penal Code, defendant makes no reference to any particular instruction given or refused. We have already determined that the accomplice instruction as to the first count should have been given. We are not sure we understand what instruction defendant is referring to as the one in the Saucke-Kiester testimony. Defendant does not point out what he claims to be erroneous about it. Nor can we find anything erroneous in the instruction or instructions to which we assume he refers. As we have reversed the conviction of the crime charged in section 653f, Penal Code, it is unnecessary to discuss the instruction complained of. The instructions as to corroboration of the other charges were proper.

Defendant’s opening brief is replete with general statements of denial of a fair trial, without specific or transcript reference, and without citation of authorities. “. . . in the absence of authorities or references to the transcript where such alleged misconduct may be found, the general charge of prejudicial misconduct should be disregarded.” (People v. Van De Wouwer, 91 Cal.App.2d 633 , 641 [ 205 P.2d 693 ].) Among others he claims that the public and jury were “inflamed by newspaper and radio accounts of the charges in this case.” There is nothing in the evidence to support this statement. (See People v. Stroble, 36 Cal.2d 615 , 620 [ 226 P.2d 330 ].)

The judgment of conviction on the first count and the order denying a new trial thereon are reversed and a new trial ordered thereon. As to the second and third counts, the judgment and order denying a new trial are affirmed.

Peters, P. J.,. and Wood (Fred B.), J., concurred.

A petition for a rehearing was denied April 28, 1953.