People v. Skaggs

Defendant was a sergeant of police in the city of Los Angeles and had for some 21 years served as a member of the police department. In an information filed by the district attorney of Los Angeles County defendant was charged with a violation of section 68 of the Penal Code, in that, on July 3, 1945, he did corruptly, knowingly and feloniously ask and agree to receive from one Kelly Petillo a* bribe in the sum of $500 for the purpose of influencing the action of said defendant upon a matter then pending and which was before him in his official capacity, to wit, the prosecution of the aforesaid Kelly Petillo upon a charge of assa'ult with a deadly weapon.

To the charge of bribery contained in the foregoing information defendant entered his plea of not guilty. The cause proceeded to trial before a jury which returned a verdict finding the defendant guilty as charged. His motion for a new trial was denied. From the judgment and the order denying his motion for a new trial defendant prosecutes this appeal.

By reason of the grounds urged for a reversal it becomes necessary to narrate in some detail the factual background which, as disclosed by the record, gave rise to this prosecution.

On the night of July 1, 1945, Kelly Petillo owned and operated a cafe and cocktail bar in the city of Los Angeles. At about midnight Petillo became involved in an altercation with two marines who were in his place of business. Police Officers Anderson and Scheidecker approached the entrance of the cocktail bar and observed two marines “standing in the

The First Interview Between, Defendant and Petillo

As was customary in shch cases, defendant took the prisoner Petillo from his cell to an office used by members of the detec-ive bureau in the course of their investigations and asked Petillo, “What happened the night before?” In answer to this query Petillo stated that two marines refused to leave his cafe at closing time, that he did not have a fight with the marines, that when they refused to leave he went “in the back room and got a rifle and shot it in order to scare them out.” Defendant informed Petillo that in the “arrest report” it was stated he struck one of the marines on the head with a chair and fired the rifle directly at them. These accusations Petillo denied. Petillo then stated that after the marines ran out of the cafe there was a knocking at the front door, whereupon his cousin readmitted the marines and another man, who Petillo did not recognize; that shortly thereafter he recognized Officer Anderson of the vice squad, to whom he surrendered his rifle. That he became excited and commenced to abuse one of the police officers. This was followed by a scuffle and the subsequent arrest of Petillo.

At the trial, Petillo testified that following his recital to defendant of what occurred the preceding night, the latter said to him, “This is a tough deal and it looks like the ‘big house' for you. I could squash this if I could get to the marines and of course it will take some money. There are four or five

The Second Interview

The record presents no conflict on the fact that some time after noon on the following day, defendant and his working partner, Officer Perry, visited Petillo in the latter’s apartment. The defendant testified that the purpose of this visit was to inquire of Petillo about the bullet holes and the direction in which he had fired the rifle on the preceding Sunday night at his cafe. That Petillo stated he did not know. Prior to this visit the officers had been at Petillo’s cafe to make an examination of the kitchen for bullet holes but found none. Arriving at Petillo’s apartment the defendant testified that he and his partner, Officer Perry, again inquired of Petillo concerning the events which preceded his arrest, and particularly inquired as to whether Petillo was sure he fired the rifle in the kitchen because they were unable to find any bullet holes therein. That Petillo replied, “I was all excited, I don’t know.” Defendant further testified that Petillo said, “Is there some way, something I can do to blow this beef down, they have me charged with trying to kill a couple of guys,” and he said, “I never tried to kill anybody, I was only trying to get them out of my place, isn’t there something we can do to get to Anderson or somebody and pay them a little money or something and get out of this.” That as defendant and Officer Perry were leaving the apartment, Petillo 1 ‘ caught hold of me and said he would like to see me a minute, ’ ’ whereupon, according to defendant’s testimony, Petillo said, “I must have made your partner sore, I guess maybe I talk too much,” and I said, “I don’t think you made him any sorer than you made me.” And he said, “Look, Skaggs, there is something I wanted to ask you, I wanted to ask you fellows but the other guy got sore,” he said, “When I was over in the county running the place I never had any trouble like this, and I want to get lined up with the police,” and I said, “What do you mean?” And he said, “If I can pay off the police so they won’t come in my place, I’ll get along swell,” and I said, “How are you going to keep them out of your place?” And he said, “If I could get to the right guy, give him $100 a month to keep out,” and he said, “If you can do it for me I will give you $100 a month.”

Officer Perry in his testimony corroborated the defendant as to the foregoing conversation of Petillo, except the latter

As to this second conversation, Kelly Petillo testified that Officer Perry left the room “after about two minutes.” Referring to defendant Skaggs, Petillo testified that “lie said had had to go down to see the marines in Santa Ana to fix it up,” that “he was going to take care of all these other fellows with this money, and he was going to Santa Ana and then let me know what he finds out about the marines”; that he, Petillo, stated to the defendant that the former’s attorney “would contact him”; that the defendant said, “it would cost $500.00 and I said, ‘Well I have to see Girard (Petillo’s attorney).’ ”

The Third Interview

There is no conflict in the evidence that later on the afternoon of the same day, Monday, July 2, the attorney for Kelly Petillo stated that he would like an interview with the investigating officers at Petillo’s cafe, pursuant to which request the defendant, Officer Perry, Petillo, and the latter’s attorney conferred at the cafe. Concededly, at this meeting there was a discussion of the evidence against Petillo, the latter’s attorney contending that the evidence was insufficient to sustain a conviction of any criminal offense and that Petillo’s conduct on the night of his arrest amounted only to necessary self-defense. The officers contended on the contrary, that the evidence was sufficient to support a misdemeanor if not a felony charge. After the four men adjourned their conference, the evidence shows that the defendant remained in the cafe with Petillo while the latter’s attorney and Officer Perry went out on the sidewalk.

The defendant testified that there was no discussion regarding the payment of money at any time while the four men were together or after Officer Perry and Petillo’s attorney went out on the sidewalk. The defendant’s testimony as to the absence of any discussion of the payment of money while the four men were together was corroborated by Officer Perry.

Mr. Petillo testified that, while the four men were assembled at his cafe, he, the defendant, insisted “it was a felony and that they could put it through the District Attorney”; that he, Petillo, said, “I don’t care what you do, I will fight it, and I don’t want to have anything to do with this money

As to what took place while the four men were in conversation at the cafe, the testimony of Petillo’s attorney utterly fails to corroborate Petillo in any respect with reference to the solicitation or payment of money. When asked at the trial, “In other words, would it be correct to say that you informed Mr. Skaggs and Mr. Perry that you didn’t think it was a good case and there wasn’t anything to discuss with them about it?” the attorney replied, “That is right.” Petillo’s attorney also testified that when he, the defendant, and Officer Perry were in conversation together on the sidewalk, the attorney said that such discussion “. . . was again to the effect that the occurrence of Saturday night and the crime being investigated did not in my opinion constitute a good prosecution at all. It was further to the effect that it would be unwise and dangerous for any officer whatsoever to ask for or to receive any bribe from Kelly Petillo.” But whether this admonition was occasioned because of Petillo’s claim that he was paying $500 as a bribe in connection with his efforts to regain his dance permit from the police commission rather than with reference to the charge upon which he was under arrest, is not made to appear from the record.

On the following morning, July 3, about 10 o’clock, after he had visited a deputy in the office of the district attorney, Petillo’s attorney called upon Deputy Chief of Police Harrison, Director of Personnel and Training of the Los Angeles Police Department. Upon this occasion the defendant’s claimed connection with the Petillo arrest was discussed. On the afternoon of the same day a meeting was held in the office of Petillo’s attorney at which, in addition to the attorney,

Petillo’s version of this conversation was, “Well, I told him I just sold my night club and I was going to get a $500.00 deposit around 8:00 o’clock and ‘I would like to see you as you wanted’ -no, no, it wasn’t that, ‘I have got that $500.00 that you wanted, I will have it by 9 :00 o’clock,’ and he wanted me to meet him at some other night club and I said, ‘No, my place because this fellow is coming down here to give me the money,’ and he agreed and we met at 9:00 o’clock.”

The defendant testified that the conversation was as follows: “Mr. Petillo said, ‘Skaggs?’ .And I said, ‘Yes,’ he said, ‘You know what we have been talking about,’ and I said, ‘Yes.’ And he said, ‘I have sold my place;’ he said, ‘I bad them give me some money down,’ and he said, ‘I want to see you at 9 :00 o’clock.’ I said, ‘I have been down there looking for you to tell you that those marines were in town or were coming to town and I want to keep out of sight because we want no more trouble. ’ He said, ‘Well, you know what we talked about, I want to see you at 9:00 o’clock.’ I said, ‘9:00 o’clock tonight or 9:00 o’clock tomorrow morning?’ There was a hesitation on the phone and then he said, ‘9:00 tonight,’ and I said,- ‘Okay, I will be-seeing you.’ ”

That night after 8 o’clock, Deputy Chief Harrison provided $500 in $20 bills to Police Officer Brown. The treasury numbers were taken off the bills by Chief Harrison. Then Officer Brown went into the night club while Deputy Chief Harrison and other officers waited in police cars in the vicinity. Officer Brown gave Kelly Petillo the $500 and then Brown concealed himself in a storeroom at the head of a stairway above the rest rooms where he could observe what occurred in the hallway leading to the rest rooms.

At three minutes to nine the appellant appeared alone driving a city police car. He drove up a side street off Pico Street and parked as the first car in line. While he was under observation by the officers, he walked from the car to the night club. Officer Brown, waiting up on the platform above the rest rooms, saw appellant come in with Kelly Petillo and saw Mr. Petillo hand the money to the appellant. He overheard Kelly Petillo say: “Now will this take care of the captain, the district attorney and everybody f” and he heard the appellant say: “Yes, you don’t have to worry about a thing.”

Appellant was observed by the waiting officers coming out of the night club with Kelly Petillo. When Mr. Petillo lighted a cigarette the waiting officers came up and arrested appellant just before he started to drive away. Appellant had the money in his hand at the time of arrest and the numbers on the bills checked with the record kept by Deputy Chief Harrison.

On the way to the station appellant was asked by the officers why he had taken the money and replied that he did not know. He was also asked if he had been directed to take it by Captain Maxwell (a superior officer), and he stated that he had not.

In the statement given by appellant at the police station he was asked to relate the conversation he had with Kelly

Appellant, in his own defense, testified at the trial to his conversation with Kelly Petillo, at the time he received the money, as follows: “Mr. Petillo then took a purse from his rear pants pocket and he opened it up. He extracted some bills, a handful of $20.00 bills. He handed them to me and he said, ‘You better count them because’ he may be $20.00 short. At that time he reached in his pants pocket and he pulled out a $20.00 bill and some smaller bills and some cash. I counted those bills. I said, ‘You may be because I only counted $480.00,’ he said, ‘ Count them again. ’ I counted them five at a time, one, two, three, four, five, a hundred, one, two, three, four, five, a hundred. While doing this Mr. Petillo said, ‘That’s right, count it that way.’ After I had counted the bills, I folded them in the center, I held them in my right hand. Mr. Petillo said, ‘Will that take care of the two captains, officer Anderson, the D. A., and everybody?’ And I said, ‘Yes, I will take care of everything for you.’ And I said, ‘Your troubles is all over for the time being. ’ Mr. Petillo said to me the second time, he said, ‘Will that take care of Mr. Anderson, the two captains, the D. A., and your partner and yourself and everybody?’ And I said, ‘It will take care of everybody, you don’t need to worry.’ And I told Mr. Petillo, or Mr. Petillo spoke to me, rather, and said that everything was working out swell, that he was getting rid of his place, that now he had blown the beer(f) down and he wouldn’t have nothing else to worry about. I said, ‘That’s right.’ I walked through the bar accompanied with Mr. Petillo with the money held in my right hand, Mr. Petillo walked as far as the front door, he turned around and I thought he had re-entered the place.”

At the trial defendant testified that on the night he received the $500 from Petillo it was his intention “to make a case against Mr. Petillo.” In this regard defendant testified that at University Police Station, prior to his departure therefrom to meet Petillo, he told Sergeant Brunty “that I had a telephone conversation that day that led me to believe Mr. Petillo wanted to make a payoff to me and I had my mind made up that I was going to do something about it if he ever made me another offer and I would like to have him go with me, and Sergeant Brunty said, ‘I heard you tell Sergeant

The foregoing testimony of the appellant was corroborated in every detail by Sergeant Brunty and Lieutenant Bowers. Sergeant Brunty testified that the defendant among other things said to him, “I am supposed to see him (Petillo) tonight and I think he is going to try to give me some money and will you go down and help me on the ease?” In his corroborative testimony, Lieutenant Bowers testified that the defendant

Respondent directs our attention to the fact that when, shortly after his arrest, the defendant was asked in a statement taken from him at police headquarters, to tell what was said between himself and Petillo in the back room when he received the $500, defendant replied, “I don’t care to state at this time.” At the trial, however, appellant testified that the aforesaid answer was prompted by the fact that “At that time it was going through my mind something had gone wrong, I didn’t know what. I am sorry to say it now, but at that time I was afraid that my officers had — that my officers at my own station was in on the deal, the frame-up, because after the telephone call had been received by me, Captain Maxwell wasn’t to be found in the station and later I had been permitted to go on the case alone and until such time as I could find out for myself for a certainty whether these officers had anything to do with it, I didn’t wish to repeat a conversation that I knew had been previously arranged for the sole purpose of proving me guilty of bribery.” There is also testimony in the record that the defendant told other friends of his that Petillo had offered him a bribe and that he proposed to obtain sufficient evidence and prosecute Petillo for bribery.

As a first ground of appeal, it is contended by appellant that the verdict is contrary to the law and the evidence in that the testimony of Petillo, the complaining witness, is incredible, inherently unbelievable and has no substantial corroboration. While it is not clearly ascertainable from the nature- of his argument, and from the authorities cited in appellant’s opening brief, whether he is urging that Petillo was an accomplice, we shall assume that such is not appellant’s claim, for such a contention would be devoid of merit. A person from whom a bribe is solicited and who refuses to give it certainly cannot be classified as an accomplice. In order to be an accomplice a person must be a criminal. Where, as here, there is evidence which, if believed, would support a finding

We shall therefore assume appellant’s first contention to be that the testimony of Petillo is so incredible and inherently unbelievable that the law in its “solicitation for.the protection of the citizen watches with scrutiny” (People v. Kempley, 205 Cal. 441 , 454 [ 271 P. 478 ]) Petillo’s testimony. And that unless his testimony which supports the ultimate issue involved is corroborated by other evidence which tends to connect the appellant with the commission of the offense the conviction cannot stand. The record herein forbids denial of the fact that, at the trial, the profligate, unmoral, and more or less dissolute character of the witness Petillo was established. A course of personal conduct was shown upon his part that was not consistent with good morals. It was shown that he had been arrested on a charge of serving a minor with intoxicating liquor, a case which was settled out of court, or as one witness stated, the case was “clammed up.” It was testified that Petillo on one occasion struck a police officer “in the eye, when I had glasses on and broke the glasses and a piece went into my eye. ...” Petillo admitted assaulting Officer Anderson on the night of July 1, when the latter was investigating Petillo’s altercation with the marines. He admitted assaulting a traffic officer when the latter attempted to give him a traffic citation and also that he attacked a motorcycle officer who arrested him for speeding. That in the latter case he compromised for $300 a civil suit instituted against him by the

The law is well settled that it is not within the province of an appellate tribunal to retry the case or to make inferences from the facts proved. That function belongs to the trial court. The appellate court is limited to deciding only whether

Notwithstanding the profligate character of Petillo, his proven animosity and ill will toward police officers, and his possible motives for fabricating his testimony, nevertheless, under the foregoing established rules, the jury in this case were authorized, if they conscientiously felt warranted in so doing, after full and fair consideration thereof, to reject any testimony which might have been contradictory to that given by witnesses for the prosecution and, therefore, to disbelieve the testimony of the appellant and any other witnesses testifying in his behalf, however weak in places the testimony of the prosecution witnesses may have been made to appear, or however sharply their testimony on other important points might have conflicted with the testimony of the other witnesses. Viewed in the light of the circumstances hereinbefore referred to which might have been regarded by the jury as corroborative of Petillo’s testimony, we cannot see how it can be held, as a matter of law, that the latter’s testimony, insofar as it concerns the ultimate issue involved, is not true, or is improbable upon its face. In People v. Haydon, 18 Cal.App. 543 , 555 [ 123 P. 1102 , 1114], it is said: “A statement, to bear upon its face the brand' of improbability, or which may be said to be unbelievable, per se, must involve, we think, a claim that something has been done that it would not seem possible could be done under the circumstances described, or involve conduct that no one but a person of a seriously calentured mentality would be likely to do.” In view of the facts and circumstances established by testimony other than that given by

It is next contended by appellant that there is ample evidence to show that he feigned complicity in a bribe agreement, accepted the $500 and permitted Petillo to believe that he intended to use the money to protect him from the impending prosecution for his alleged assault upon the marines, all for the sole purpose of securing evidence upon which to prosecute Petillo for offering and giving a bribe (Pen. Code, §67). The record reflects that such was the whole defense theory at the trial, and as stated by respondent, “If appellant was pretending to accept a bribe then he is of course not guilty. ’ ’ It is unnecessary to here set forth the evidence offered in support of this theory, as we have hereinbefore narrated it in detail. Suffice it to now state that it was established at the trial that prior to keeping his appointment with Petillo to receive the money, appellant informed no less than three other police officers that he thought Petillo “was giving me a play for a pay off.” That appellant said to Sergeant Brunty, “I am supposed to see him tonight. I think he is going to try to give me some money and will you go down and help me on the case?” Officer Brunty agreed if the night lieutenant at University Station approved. Both Officer Brunty and appellant sought out night Lieutenant Bowers and appellant asked his superior officer to send Brunty with him but the lieutenant stated that they “were awful short tonight for men” and told appellant to “go down there first and see what it is all about and then if you need help I will get you some help. If you take anybody with you that he doesn’t know and if there is a deal on or setup why, he will be scared off.” This and other testimony hereinbefore set forth and fully corroborated by Lieutenant Bowers, Sergeant Brunty and Officer Goodman is certainly at variance with the propensities and conduct of an officer who was wilfully and unlawfully about to accept a bribe. Bribe takers are not prone to ask for witnesses to their perfidy. True, the verity of this defense was a matter for the jury’s determination and the verdict rendered would indicate that they rejected it. But appellant was entitled to have his defense presented to the jury under proper instructions. Ap

By the first instructions under attack the jury was admonished that, “You are instructed that whether or not defendant Skaggs actually intended to have his actions influenced by any money that he received, if you believe that he did receive any, is immaterial, if you believe from the evience and beyond a reasonable doubt that the said Skaggs did receive said money and that he represented that he would be influenced by the receipt of such money.” (Emphasis added.)

By this instruction the jury was told that it mattered not whether appellant received the money with the intention to be influenced thereby or in furtherance of his plan to apprehend Petillo for offering and giving a bribe; that his guilt depended solely upon his representations to Petillo that he would be influenced by the receipt of the money.

Again, the jury was advised that, “You are instructed that whether or not defendant Skaggs actually intended to have his actions influenced by any money that he received, if you believe that he did receive any, is immaterial, if you believe from the evidence and beyond a reasonable doubt that the said Skaggs did receive said money and that he represented that he would be influenced by the receipt of such money.” (Emphasis added.)

Both of the foregoing instructions excluded from the jury’s consideration the whole defense offered by the appellant. In the absence of any instructions advising the jury of the law applicable to appellant’s defense, the giving of the above instructions must be held to be erroneous. That the error was prejudicial is manifest. In view of the grave hazards of possible injustice being done to appellant by the challenged instructions, it must be held that the giving of the same under the facts of this ease was serious prejudicial error. If proper instructions had been given, the testimony of appellant and

While appellant did not request instructions on the law applicable to his defense, nevertheless, under the circumstances which the instant case presents, the failure of the trial court to instruct the jury thereon was prejudicial error, because the aforesaid instructions as given were manifestly incorrect for the reason that they excluded from the jury’s consideration a very vital issue raised by the evidence. As was said by this court in People v. Heddens, 12 Cal.App.2d 245 , 247 [ 55 P.2d 230 ]: “It is the duty of the court in criminal cases to give of its own motion instructions on the general principles of law pertinent to such cases, even though they are not proposed or presented in writing by the parties themselves.” (Citing cases.)

With the record in the condition in which we find it,, we must look into the effect of the error of the trial court in connection with the disposition of this appeal in the light of the provisions of section 4% of article VI of our state Constitution, which forbids us to set aside any judgment or grant a new trial unless, after an examination of the entire cause, including the evidence, this court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. The phrase “miscarriage of justice,” used as descriptive of that condition of a cause, has no hard and fast definition. As was stated by this court in People v. Gilliland, 39 Cal.App. 2d 250 , 264 [ 103 P.2d 179 ], “We do not understand section 4% of article VI of the Constitution as intended to mean that merely because the evidence may legally be able to stand up under the weight of the judgment, that is sufficient reason in all cases for refusing to set aside the judgment. (People v. Davis, 210 Cal. 540 , 556 [ 293 P. 32 ].)” The following language used by this court in People v. Duvernay, 43 Cal.App.2d 823 , 829 [ 111 P.2d 659 ], is strikingly pertinent to the situation with which we are here confronted: “There is creditable authority for the statement that the phrase ‘miscarriage of justice, ’ as used in the constitutional provision, ‘does not merely mean that a guilty man has escaped or that an innocent man has been convicted. It is equally applicable to cases where the acquittal or conviction has resulted from some form of trial in which the essential rights of the people or of the defendant were disregarded or denied. The right of the accused, in a given ease, to a fair trial, conducted substantially according to law, is at the same time the right of all

In the case before us the evidence as to many material facts is in sharp conflict. True, the jury had an opportunity to observe the demeanor of the witnesses, the manner in which they testified, their degree of intelligence, and may have had reason to return the verdict which was found irrespective of the errors committed during the trial. As to this we can of course say nothing. But from a reading of the record we are persuaded the errors may have turned the scale in favor of the prosecution. Being unable to say “whether appellant would or would not have been convicted but for the errors of the court” (People v. Black, 73 Cal.App. 13 , 38 [ 238 P. 374 ]), we must direct a reversal.

By reason of the foregoing it becomes unnecessary to consider or determine other questions raised on this appeal.

The judgment and the order denying the defendant’s motion for a new trial are, and each of them is, reversed, and the cause remanded for a new trial.

York, P. J., and Doran, J., concurred.