People v. Johnson

It is charged in an information containing four counts, first, that on December 12, 1949, defendant unlawfully committed the crime of grand theft by voluntarily taking a trailer load of cotton belonging to one W. H. Richards; second, that he unlawfully took a four-wheel cotton trailer belonging to Kenneth Richards, without his consent; and the third and fourth counts charged respectively that on November 8,1949, defendant unlawfully took a trailer

A trial by jury resulted in a conviction on the first two counts and a verdict of not guilty on a third and fourth count. Defendant appealed from the judgment pronounced. He first challenges the sufficiency of the evidence to support the verdict.

On December 12, the prosecuting witness, Richards, a cotton raiser who resided in Dinuba, was picking cotton by machine at a ranch which was located about a mile south and a little west of the ranch owned by defendant at Yettem. He left his field about 6 o’clock in the evening, after dark, and at the time of his departure there were three trailer loads of cotton in his field. When he returned the next morning about 9 o’clock, he discovered that one of the trailers was gone. It had contained a normal load of cotton (about 7,600 pounds or about 7 bales, approximately, valued at $900). The cotton was owned by Richards, and the missing trailer was owned by a cousin of his. Richards summoned the sheriff. At the location where the trailer had been left the previous evening they found tire tracks with seven grooves in a sawtooth pattern. Similar tracks were noted the same day at the same place by others. One rear tire of the missing trailer had a diamond-type tread with a smooth place in the center. The other rear tire had a “W” type of tread with a smooth place in the center. The tread marks of these rear tires appeared at the scene where the trailer had been loaded the previous evening. These tire tracks indicated that the vehicle, hearing the seven-groove saw-tooth tread tires, had backed up to the trailer. It was hitched onto it and then hauled from the Richards property to the near-by county oiled road. Defendant’s ranch adjoined that of Richards. To the east of defendant’s home was a road running in a north and south direction and parallel to defendant’s fields, which fields were divided into parcels by a ditch. Eighty acres of the defendant’s land was denominated the “south 80 acres.” The north 15 acres adjoined defendant’s house. A witness Hamilton, who had previously lost a trailer load of cotton, testified that when he learned of the loss by the witness Richards, he chartered an airplane and flew over the area looking for the abandoned trailer and a new cotton stock pile, because he knew stock-piling was not necessary at that time of the year because the gin was “ginned up” within 24 hours-. • He testified that he was unable to locate the type of trailer described by Richards but he crisscrossed over the

Defendant’s brother, who testified on behalf of the People, stated that on December 13, he worked for his brother on his brother’s ranch; that he helped him load the cotton off the ground into a trailer from the cleared area; that his other brother Unica, and Paskell January also helped; that they started to load it with hayforks but later defendant went home and brought back the picking machine and loaded it with that; that one trailer and a part of another were thus loaded; that the trailer was then hauled out of the field with a tractor and left in front of defendant’s house; that in the evening of the day previous to the loading, defendant Johnson told him that he wanted him to help him load cotton the next day. The loaded trailer, containing about 6,006 pounds, was hauled to the gin by defendant’s father, Tom Johnson. The other trailer contained about 3% bales of cotton, which defendant took to the gin. An investigation of the 80 acres on defendant’s south field showed that only 27 rows had been picked between the time of the rain and the time when the examination was made. Estimates of the yield from these 27 rows varied from a bale and a half suggested by one witness, to 3% bales suggested by a defense witness, and all cotton picked in that area had been previously taken to the gin. Records of the gin were received in evidence and showed that defendant delivered 4,570 pounds or 3 bales on December 12, 9580 pounds or 7 bales on December 13, and on the 27th of December, 4 bales; January 5, 1950, 4 bales; January 7, 3 bales; and January 9, 3 bales. The manager of the gin where the defendant took his cotton testified that he had previously estimated defendant’s total yield as 80 bales and that he had, up to that time, received 97 bales. However, he did testify that his estimate was only an estimate and there could possibly be this much variance. There was evidence

There is evidence that the officers made search of the automobiles and trucks in the vicinity of Yettem for tires similar to those which were on the Johnson truck and were unable to find any of that particular type and marking. One of the officers at the gin, after hearing of the theft, also made investigation of trucks, over a period of time, coming into the gin for unloading purposes, and found no trucks having tires of this particular design.

Defendant’s answer to the charge was that after working late in the field that evening, he went home, had dinner, went to a near-by grocery store with his wife, and then visited a neighbor until about 11 p. m.; that at that time he and his wife returned home and retired. He denied leaving the house that night. He also denied taking the trailer or the cotton or having any part in such taking. He produced several corroborating alibi witnesses as well as a group of character witnesses who testified as to his general reputation in the community. He also produced the testimony of his brothers endeavoring to corroborate his story in reference to his cotton picking activities for the previous week, which varied somewhat from the testimony produced by the People’s witnesses. There was evidence that automobile tire tracks similar to the tires on Tom Johnson’s truck were found on the property of Mr. Hamilton at the time he lost his cotton trailer and load of cotton.

The force of defendant’s argument is that since the prosecution did not produce any direct evidence to connect him with the commission of the alleged offenses, that since no one saw him at.or in the vicinity of the cotton that was supposedly stolen, and that since no one saw him in possession of the trailer that was taken, the prosecution failed to produce sufficient evidence upon which to convict him; that since defendant established that he did not deliver cotton to the gin in any unusual quantity, that since he showed that he

The evidence is mainly circumstantial and must be examined in the light of the well established rules on appeal. We must assume in favor of the verdict the existence of every fact which the jury could reasonably have deduced from the evidence and then determine whether such facts are sufficient to support the verdict. (People v. Newland, 15 Cal.2d 678 , 681 [ 104 P.2d 778 ].)

The evidence clearly establishes that the complaining witness's trailer and load of cotton were stolen sometime after dark on the evening of December 12, or the morning of December 13. Counsel for defendant concedes this fact. The evidence sufficiently establishes that it was Tom Johnson’s truck that hauled the trailer and cotton onto the defendant’s premises, and that the same trailer was unloaded there. Whether defendant Ted Johnson was actually driving the truck is not clearly determinable. There is evidence that defendant was, in fact, late that evening, working in the south 80 acres near the complaining witness’s ranch and that he was the guiding hand in supervising the employment of persons for the purpose of loading stock piled cotton into a different trailer the following morning. The cotton so loaded was taken by defendant’s father by means of the same truck, the following day, to the cotton gin, and the proceeds were credited to defendant. The jury was justified in believing that if defendant did not actually drive the truck from the complaining witness’s premises he did in fact aid and abet another or others in the commission of that offense. The finding of the several pieces of sideboard of the complaining witness’s truck on defendant’s property at the place indicated was strong evidence that the contents of the complaining witness’s truck were removed to defendant’s premises, and the circumstances surrounding the disposition of the cotton and the trailer thereafter point directly to the defend

The next complaint pertains to the giving of certain claimed erroneous instructions pertaining to aiding and abetting. Instructions were given embodying Penal Code, sections 31 and 32, as to who are principals and who are accessories, together with a general instruction to the effect that the fact that others “have violated the law with impunity is no defense and if you believe beyond a reasonable doubt that Ted Johnson and others who are not before the court took and carried away the personal property of . . .” W. H. Richards, or that they “drove and moved the trailer of Kenneth Richards, without the consent of the owner thereof, and with intent to deprive the owner thereof of the said vehicle, you must find the defendant, Ted Johnson, guilty as alleged ...”

It is defendant’s contention that the trial court should not have instructed the jury on aiding and abetting because there was no evidence to show he. aided or abetted anyone. There is no merit to this contention for the reasons heretofore expressed. (People v. Latona, 2 Cal.2d 714 , 726 [ 43 P.2d 260 ] ; People v, Burke, 18 Cal.App. 72 , 104 [ 122 P. 435 ].), The jury was fully instructed as to the quantum of evidence necessary to be established before defendant could be convicted.

It is claimed that one of the instructions which states that “The fact that others have violated the law” with impunity is no defense, is in effect a statement by the trial judge to the jury “as a fact, that someone has violated the law and has told the jury that' as an undisputed fact there has been a theft of cotton and that someone other than defendant participated in that theft.” The evidence is undisputed that someone did violate the law and did take and carry away

It is next claimed that the trial court committed error in instructing the jury in the language of Instruction No. 235 CALJIC, pp. 192-193, on the law pertaining to the possession of stolen property. The instruction told the jury that the mere possession of stolen property unexplained by the person having possession, is not sufficient to justify a conviction. However, it may be a circumstance to be considered in connection with other evidence in determining the question of innocence or guilt. Defendant’s complaint of this instruction is that there is no evidence showing that the defendant ever had possession of the stolen property and therefore such an instruction should not have been given. Since it has been determined that there is sufficient circumstantial evidence to show that the stolen property was on defendant’s ranch and was apparently under his dominion and control, and that the cotton was subsequently loaded by him and taken to the gin mill by his authority to be ginned for him, soon after the theft, this instruction was proper. (People v. Taylor, 4 Cal. App.2d 214 [ 40 P.2d 870 ].) This conclusion is not contrary to the holding in People v. Hurley, 60 Cal. 74 [ 44 Am.Rep. 55 ], cited by defendant.

The next complaint is that since the standard instruction was given to the effect that it was not necessary that there should exist an intent to violate the law or to do a wrong because criminal intent exists whenever a person does that which the law declares to be a crime, such instruction is contrary to an instruction given to the effect that in every crime there must exist a union of act and intent, citing People v. Gherna, 80. Cal.App.2d 519, 524 [ 182 P.2d 331 ]. We see no merit to this complaint. Defendant does not deny that the jury was instructed on the necessity of finding a specific intent in order to convict. This requirement was covered by several of the given instructions. Comparable instructions were given in People v. Raffington, 98 Cal.App.2d 455 , 462 [ 220 P.2d

Defendant argues that a violation of section 499b of the Penal Code was an included offense under a charge of violation of Vehicle Code section 503, and that it was the duty of the trial judge, on his own motion, to have instructed the jury of this fact. No authority is cited in support of this argument. The issue before the jury was whether or not the defendant committed the offenses charged or participated therein, and on this issue the jury was fully instructed. In the absence of a request for an instruction to this effect, the defendant is not in any position to complain for the first time on appeal. (People v. Boss, 89 Cal.App. 132 , 139 [ 264 P. 314 ]; People v. Owens, 79 Cal.App.2d 290 , 300 [ 179 P.2d 401 ].) Furthermore, under the evidence, it can scarcely be contended that the defendant took the trailer within the meaning of the so-called “joy-ride statute,” (Pen. Code, § 499b). (See People v. Orona, 72 Cal.App.2d 478 [ 164 P.2d 769 ].)

Then follows the statement that prejudicial error was committed by the court in failing and refusing to submit to the jury verdicts on the offense of being an accessory after the fact, and on the offense of receiving stolen property, after having been instructed as to those offenses. The defendant was not charged with the crime of being an accessory after the fact nor was he charged with the crime of receiving stolen property and accordingly, not being an included offense within the charge, there was no duty upon the trial court to submit to the jury forms of verdict as to these offenses. (Pen. Code, §§ 971, 972, 7 Cal.Jur. p. 891, § 40; People v. Stakem, 40 Cal. 599 ; People v. Hawkins, 34 Cal. 181 ; Pen. Code, §496.) Furthermore, the instruction on the subject of accessory after the fact was given in connection with section 31, as well as sections 971 and 972 of the Penal Code, in defining who are the principals concerned in the commission of a crime and whether or not they directly committed the act constituting the offense or aided or abetted in its commission or, not being present, have advised or encouraged its commission. We find no instruction given by the court, and counsel for defendant has not called our attention to any instruction, in which the court defined the offense of receiving stolen property as denounced by Penal Code, section 496, or which would in anywise indicate that the jury could find the defendant guilty of such an offense.

In discussing the production by the defendant of a goodly number of character witnesses, the prosecutor stated: “Alger Hiss had some character witnesses ... I think that the character witnesses that Alger Hiss put on were of considerable

It is claimed that it was prejudicial misconduct on the part of the prosecuting attorney to refer to the Alger Hiss trial and the Harry Bridges trial in a repeated attempt to depreciate the force of the testimony of the defendant’s character witnesses; that it was debatable whether the facts of these cases might have been matters of common knowledge and that the average layman might not even be aware that character witnesses were put on the stand in either of these cases. Counsel for defendant concedes that he did not object to nor did he move to strike the argument of counsel to the jury pertaining to the matters set forth and did not ask the court to admonish the district attorney in reference thereto. He claims that this failure to object was not vital because the misconduct was apparent and sufficient to cause a possible miscarriage of justice, citing People v. Hadley, 84 Cal.App.2d 687 , 692 [ 191 P.2d 517 ] ; People v. De Vries, 52 Cal.App. 705 , 710 [ 199 P. 867 ] ; and People v. Gilliland, 39 Cal.App.2d 250 , 264 [ 103 P.2d 179 ].

As to the first claimed error regarding the expression of opinion that the sheriff’s office and district attorney’s office seemed to think that Ted Johnson was the guilty man, the defendant is segregating a small portion of the record from its context. When that portion is examined in relation to the entire argument it is clear that he was basing his remarks upon an analysis of the evidence in the case. It did not therefore constitute prejudicial error, particularly where such statement was not objected to nor assigned as error. (People v. Owens, 11 Cal.App.2d 724 [ 54 P.2d 728 ].) It does not

As to the prosecutor’s reference to the Alger Hiss and Harry Bridges trials and as to the character witnesses appearing therein, it might be properly questioned whether all of the facts of those cases were of such notoriety that they became commonplace and within the wide range of discussion, illustration and augmentation of counsel, but it can hardly be said that the trials, some of the claimed facts and the results were not generally known or of common knowledge. The gist of this portion of the prosecution’s argument was to illustrate that persons who are of good character, as shown by the best intended character witnesses, may still be found guilty if the evidence is present to show the commission by them of the crime charged. No objection was made to this illustration or discussion at the time and the court was not asked to admonish the jury or the prosecuting attorney in respect thereto. It is the general rule that in the argument of the district attorney before the jury, the range of discussion, illustration and argument is properly very wide, and matters of common knowledge and historical facts may be referred to and interwoven in such argument. (People v. Burke, 18 Cal.App. 72 [ 122 P. 435 ].) Under the circumstances related and in the absence of an objection to the argument, we conclude that the statement did not constitute prejudicial error. ° (People v. Stembridge, ante, p. 15 [ 221 P.2d 212 ]; People v. Agnew, 16 Cal.2d 655 [ 107 P.2d 601 ] ; People v. DuBois, 16 Cal.App.2d 81 , 87 [ 60 P.2d 190 ] ; and eases there cited.)

These same authorities would be cited and the same conclusion must be reached in reference to the prosecutor’s statement in reference to the failure of Tom Johnson, father of defendant, to testify in defendant’s behalf. It must be remembered that throughout the trial the prosecution was insisting that either defendant himself or someone other than

The reason for the rule requiring assignment of misconduct and a request that the jury be instructed to disregard it is that the trial court must be given the opportunity to obviate the harmful results, if any, by appropriate instructions to the jury. Furthermore, the trial judge had an opportunity to consider the alleged misconduct on the motion for new trial and his rejection of the contention indicates the lack of prejudice to the defendant. (People v. Macias, 77 Cal.App.2d 71 , 89 [ 174 P.2d 895 ] ; People v. Sarazzawaski, 27 Cal.2d 7 , 15 [ 161 P.2d 934 ].)

Defendant cites the case of People v. Ponce, 96 Cal.App.2d 327 , 331 [ 215 P.2d 75 ], for the proposition that it was error for the trial judge to fail to define the words “aid and abet” to a greater extent than defined by the proffered instructions.

Under the instructions given then, the jury was, in effect, told that if defendant aided and abetted in the commission of the crime, before he could be found guilty of such crime, there must exist a union of act and intent to commit such crime.

People v. Ponce, 96 Cal.App.2d 327 , 331 [ 215 P.2d 75 ], relied upon by defendant, was a case .construing sections 209 and 210 of the Penal Code, which use the term “aid or abet.” It properly held that the instruction should have been “aid and abet,” notwithstanding the language of the sections. Defendant’s counsel seeks some comfort in the dicta set out in the opinion pertaining to the necessity of giving a further instruction, on the court’s own motion, defining the term “aid and abet.” The ease there cited as authority for this statement is People v. Dole, 122 Cal. 486 [ 55 P. 581 , 68 Am.St. Rep. 50 ], That case does not support the dicta. It clearly holds that it would be error to use the term “aid or abet” for the reasons stated but if the court had used the term “aid and abet,” the use of these words in the conjunctive included not only aiding in the commission of the crime but doing it with the “knowledge of the wrongful purpose of the perpetrator.” To the same effect is People v. Wong Hing, 176 Cal. 699 [ 169 P. 357 ], criticized in People v. Ponce, supra. There the Supreme Court again held that “The term ‘aiding and abetting’ are commonplace words, the meaning of which the jurors must be deemed to have understood; hence, and especially in the absence of a request therefor, the court was not called upon of its own motion to define them.” (See, also,

Next, counsel for appellant contends that the prosecution failed to show that the theft occurred in the county of Tulare. The charge is that it occurred in that county and the evidence shows that the complaining witness’s property was at the village of Tettem. No contention was made of this point during the trial. The court will take judicial knowledge of the fact that Tettem is in Tulare County. All of the evidence clearly indicates that the offense occurred in that county.”

Finally, it is claimed that the trial court abused its discretion in refusing to grant a new trial. The arguments made under this contention are but restatements of the arguments made on the appeal from the judgment. The jury’s verdict was supported by the evidence. The verdict was reached under proper instructions. Defendant was accorded a full and fair trial, and no prejudicial error resulted.

Judgment and order affirmed.

Mussell, J., concurred.