People v. McCrae

In two indictments defendant was charged with three violations of section 11531, Health and Safety Code. Pound guilty by a jury, he appeals from the judgment of conviction, order denying motion for new trial and order denying motion to arrest judgment. Inasmuch as the two orders are not appealable (Pen. Code, § 1237, subd. 2), the purported appeals therefrom are dismissed.

On October 6, 1961, Police Officer Robert, working undercover in a narcotics investigation, went with one Curtis into Al’s restaurant, of which defendant was manager. He said to defendant “What kind of a deal would you let me have on half pound, man?”; he replied, “I don’t know; I will let you know when I get it, but I won’t be able to. do anything until . . . before 1:30. Come back then.” Around 1 p.m. the officer returned and, after some discussion, said to defendant, “Look here, Bill, I'can’t handle a half pound, . . . at $15 a can.' I can’t handle three cans. Can’t you give me a better deal"?”; he answered, “The best I can do

Defendant testified that he was known by various nicknames including “Bill”; that while he was employed at Al’s in October 1961, three other persons working there, as well as several customers, were also known as “Bill”; that he did not see the officer in the restaurant in 1961; and that he never sold marijuana to anyone or had it in his home or in the restaurant. Defendant’s brother and wife testified that they too worked at the restaurant, and that they never saw the officer or any marijuana either in the restaurant or at his home.

Appellant’s main point is that he has not been brought “within the jurisdiction of the Superior Court,” and that he was denied due process and equal protection of the laws. (A.O.B., p. 2.) His argument seems to be that the indictments were defective in that the person indicted was not therein adequately named or described so that he could be identified; and that his true name was improperly inserted in the indictments without a sworn statement asserting that he was the person named therein.

Without substance is appellant’s argument that his true name was not properly inserted in the indictments because at the time there was no sworn statement made asserting that he was the person named therein. The description of defendant as set up in the indictments, together with his testimony of three narcotics transactions with defendant, was given under oath before the grand jury by Officer Robert. We know of no authority, nor has any been cited to us, requiring that when defendant’s true name is discovered it must be inserted in the accusatory pleading under oath. Neither section 953, Penal Code, nor section 989 requires such an oath to establish the true name of the accused and enter it in the indictment. “When the defendant is arraigned, he must be informed that if the name by which he is prosecuted is not his true name, he must then declare his true name, or be proceeded against by the name in the accusatory pleading. If he gives no other name, the court may proceed accordingly; but if he alleges that another name is his true name, the court must direct an entry thereof in the minutes of the arraignment, and the subsequent proceedings on the accusatory pleading may be had against him by that name, referring also to the name by which he was first charged therein.” (Pen. Code, § 989.)

In the early case of People v. Kelly, 6 Cal. 210 , the court, upholding the constitutionality of section 953, discussed the wisdom of the section that avoids the delay and expense of remanding the prisoner for a new indictment when a misnomer is found and allows his true name to be substituted on the trial and the ease to proceed in that name. Appellant argued that he was in fact indicted by the trial court because it altered the grand jury indictment by inserting his true name. The contention was dismissed in the following language at pages 213, 214: “In the first place, the indictment was not altered, but the proceeding was made to conform to the proof. ... As before stated, names are but sounds to designate particular individuals, and, as such, are employed to describe

“The Constitution directs that the accused should be presented by indictment; not the accused by his true name, but the party or person himself.” (People v. Kelly, 6 Cal. 210 , 213.) And in People v. Erving, 189 Cal.App.2d 283 [ 11 Cal.Rptr. 203 ], the indictment was properly amended under section 953 to state defendant’s true name; the amendment obviously was not made under oath.

In the case at bar, when it was called for arraignment in the name of William Martin McCrae, present counsel appeared as representing “Mr. McCrae” ■ the Deputy District Attorney then directed himself to defendant: “And John Doe ‘Bill,’ is your true name William Martin McCrae?” In response defense counsel moved to dismiss the indictments as “inadequate”; the motion was denied. He then refused to permit defendant to identify himself as “John Doe ‘Bill’ ” or divulge his true name. After lengthy discussion with the court, counsel moved for a hearing “so it could be determined if the individual standing before the court was, in fact, the defendant”; the motion was denied. Considerable argument ensued; finally the deputy district attorney read the name and description contained in the indictment and asked defendant: “. . . is your true name John Doe ‘Bill’?” Defendant refused to answer primarily on the ground his “answer may tend to incriminate” him. Asked by the court if he was the person arrested as John Doe “Bill,” defendant again said, “My answer will tend to incriminate me, sir. ’ ’ After further argument defendant stated that he was the person “brought in by the officers and arrested and booked under the name of John Doe ‘Bill’ ”; he was then arraigned as John Doe “Bill.” Later, before plea, the deputy district attorney moved to amend both indictments to show the true name of defendant as William Martin McCrae, stating to the court that he had talked to Sergeant Heckl who told him that defendant told him his name is William Martin McCrae; that Sergeant Heckl talked to Officer Robert who told the former that defendant is the same per

The indictments were returned against defendant on the sworn statements of Officer Robert; the same person was later arrested under them by the officer and brought before the court; before plea, defendant’s true name was discovered and on motion of the People inserted in the pleadings. There is no variation in the description contained in the indictments and defendant’s description of himself; and the jury, giving credence to the officer’s testimony and observing defendant, believed the accused and the person who dealt with the officer to be one and the same. We fail to see wherein defendant was denied due process.

When defendant refused to reveal his true name he was arraigned under the fictitious name of “John Doe ‘Bill,’ ” complete with description. His constant refusal to declare his name was based on the ground it would tend to incriminate him. There is no such issue here for the record is clear that at no time was defendant forced to give his name. Under section 989 he could give it or not, as he saw fit; he refused. Thus, the alternative under the section was employed—he was “proceeded against by the name in the accusatory pleading,” until his true name was discovered and entered in the indictments.

For the foregoing reasons the judgment is affirmed.

Wood, P. J., and Fourt, J., concurred.

A petition for a rehearing was denied August 20, 1963, and appellant’s petition for a hearing by the Supreme Court was denied September 18, 1963.