Opinion
9-8-1953
PEOPLE v. JACKSON. * Cir. 4965.
Jerome Weber, Los Angeles, Hy Ginsberg, Theodore Flier and Jess Whitehill, Los Angeles, of counsel, for appellant. Edmund G. Brown, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.
PEOPLE
v.
JACKSON. *
Sept. 8, 1953.
Rehearing Denied Sept. 17, 1953.
Hearing Granted Oct. 8, 1953.
Jerome Weber, Los Angeles, Hy Ginsberg, Theodore Flier and Jess Whitehill, Los Angeles, of counsel, for appellant.
Edmund G. Brown, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.
WHITE, Presiding Justice.
In an information filed by the District Attorney of Los Angeles County defendant was accused of the crime of bribery, Pen.Code, § 67, in that he offered to give a bribe to Harold Thomas and W. H. Bornhoft, executive officers of the State of California and police officers of the City of Pasadena, with the intent to influence them as such officers, on or about December 11, 1951, said offer and intent being wilful, unlawful, felonious and corrupt.
Following entry of a plea of not guilty, the cause proceeded to trial before a jury which returned a verdict finding defendant guilty as charged.
Motion for a new trial was denied and defendant sentenced to state prison for the term prescribed by law. Execution of the sentence was suspended and defendant was granted conditional probation.
From the order denying his motion for a new trial defendant prosecutes this appeal.
We consider the following as a fair epitome of the factual background surrounding this prosecution as presented to the jury by witnesses for both the prosecution and the defendant.
There was testimony introduced by the prosecution that W. H. Bornhoft, a member of the Pasadena Police Department since June, 1943, and working in the Detective Division since July, 1947, knew defendant. He first met defendant in 1944, when the latter became a member of the Pasadena Police Department. Officer Bornhoft and defendant worked together frequently as patrolmen from 1944 to 1947 and were on several cases together thereafter in the Detective Bureau. They saw each other socially, visiting in their respective homes. In September, 1951, defendant resigned from the Police Department, stating he was going to be a liquor salesman. There was no interruption in the friendship between Mr. Bornhoft and defendant.
At about 8:00 p. m. Thursday, December 6, 1951, Officer Bornhoft received a telephone call at his home in Pasadena from defendant. Officer Bornhoft was on vacation that particular week. In this conversation, defendant inquired if Officer Bornhoft heard about the changes at the Police Department. The officer said he had just read what was in the papers. Defendant asked if Officer Bornhoft would want to talk about it. The latter said he guessed so. Defendant said he would come to Officer Bornhoft's house.
Defendant and his wife arrived at the Bornhoft home about 9:00 p. m. Present in the house were Mr. and Mrs. Bornhoft and their two children.
Officer Bornhoft asked defendant what he had on his mind. At the latter's request, they went into the kitchen. The ensuing matters were discussed out of the presence of the others.
Defendant asked Officer Bornhoft what he knew about the changes at the Police Department. The latter said he knew nothing about them, that he only read of them in the paper that day. Defendant asked Officer Bornhoft how he thought Harold Thomas, Lieutenant in the Pasadena Police Department, would take his new job as head of the Vice Squad. Bornhoft said he did not know.
(Officer Bornhoft had met Lieutenant Harold Thomas, who was already on the force, when Bornhoft first joined the department. They had become good friends since, visiting socially in one another's homes.)
Defendant next stated that he could not believe in the violent types of crimes and he knew Officer Bornhoft did not believe in them; that they both knew that gambling, bookmaking, and such, were an accepted thing in the community; that if Lieutenant Thomas did not permit these things to go on the Lieutenant would not long remain in charge of the Vice Squad; that he (defendant) and others knew that Bornhoft and Thomas were very good friends; that they felt Bornhoft would be a logical person to contact Thomas to see 'how he felt about allowing gambling and bookmaking to operate and continue in Pasadena'. Officer Bornhoft said that Thomas was 'a peculiar sort', he did not know how Thomas would react to such a thing. Defendant said that if Bornhoft could arrange a meeting between Thomas and defendant to discuss it, Bornhoft 'could make anywheres from $25, possibly fifty or a hundred dollars, a week'. Officer Bornhoft said that Thomas was the sort one could not 'figure out', he did not know if Thomas would even consider it. Defendant asked Bornhoft to talk to Thomas and find out how he felt and arrange a meeting with defendant. The latter said that the Pasadena Elks Club, of which all three were members, would be a good place for the meeting, and on the following Tuesday, a regular lodge meeting night. Officer Bornhoft said that he would see Lieutenant Thomas, discuss it with him and inform him of the meeting.
Officer Bornhoft communicated the next morning with his immediate superior, Stanley Decker, Chief of the Detective Bureau, as to the conversation with defendant; and, in the course of the next several days, Bornhoft communicated with Lieutenant Harold Thomas and Clarence Morris, Chief of Police.
Harold Thomas had joined the Pasadena Police Department in July, 1940. In 1949 or 1950 he became a lieutenant. On December, 6, 1951 he was placed in charge of the Vice Division. His duties were to supervise the men engaged in the detecting and apprehension of violators of laws relating to gambling, bookmaking, prostitution and sex deviations.
Lieutenant Thomas had worked on details with defendant as a uniformed policeman. They had, however, little social contact.
Shortly before 6:00 p. m., December 11, Officer Bornhoft and Lieutenant Thomas went to the Elks Club in Pasadena. They were at the bar in the Silver Room, a dining room in the basement, when defendant joined them. The three of them ate dinner. Thereafter, at defendant's suggestion they went to a place in Eagle Rock known as Johnnie's or Jonie's, defendant driving them in his automobile. They arrived around 8:30 p. m., and sat at a table a little off center. Bornhoft stated to defendant that Thomas knew why they were there, and they should 'get on with the business'; that he (Bornhoft) was sleepy.
Defendant said that he did not believe in the violent types of crime and he knew that Bornhoft and Thomas did not; that bookmaking and gambling were a common and accepted thing and had been going on in Pasadena for a long time. He said he represented a group of people who wanted to get 'action' started in Pasadena (i. e., the exchange of money in gambling). He asked if Lieutenant Thomas would be interested in making some money without being found out. Officer Bornhoft asked defendant what his (Bornhoft's) part would be in the plan. Defendant said that Bornhoft's part was practically completed since he had arranged the meeting.
Defendant stated that Lieutenant Thomas could make from $100 to $1,000 a week by allowing gambling and bookmaking to operate in Pasadena. Lieutenant Thomas said he would have to know more of the details and how much risk would be involved, then he would have to determine if the reward was commensurate with the risk.
Lieutenant Thomas asked defendant if the people he represented had anything to do with the Foothill Charter Club at 10 East Colorado. Defendant asked why Thomas inquired and what the latter knew of it. Lieutenant Thomas said he might know more than defendant thought he did. He asked how much such a place would pay. Defendant asked Lieutenant Thomas how much he would want for such a place to run. Thomas said that for the place to run as he understood they would like it to run, it would be 'a very expensive proposition', that there would be too many people in and out of the building, that his (Thomas') job would not last long, that such a place could not possibly run for long. Defendant asked exactly how much Lieutenant Thomas would need, and the latter said $62,000. Defendant said that was ridiculous. Thomas said that was approximately the amount he would make in the rest of his police career, that with such a place as the Foothill Charter Club he felt he would not be working very long. Defendant said it was ridiculous, that such a place would not pay that kind of money. Lieutenant Thomas reiterated that he could not give an answer either way until he knew more details of the proposition.
(At the Charter Club location many feltcovered tables had been moved in; there were boxes of cards, racks of chips, coffee urns, intercommunication radios with the bar below, two phones and an electric door. Arrangements had been made for a man to sit at the top of the stairs and look down them unobserved. The police had had the place under observation. So far as Lieutenant Thomas knew, it had never operated.)
In the course of the conversation Lieutenant Thomas asked defendant who was 'connected' with him, but defendant did not disclose any names. Thomas asked what would be required of him to allow gambling and bookmaking to operate. Defendant said it would be Thomas' duty to let defendant know of any telephone spots (places where bets are received by a bookmaking agent) as to which Thomas received complaints. Defendant said that a place would have to operate six to eight weeks to pay; that thereafter, if complaints were received, it could be arranged for 'fall guys' to stand the arrest and undergo the prosecution. Lieutenant Thomas said that before he could give defendant any definite answer he would have to know more particulars and who was 'behind defendant.
The three of them left around midnight and returned to the parking lot of the Elks Club. From there, Officer Bornhoft and Lieutenant Thomas went to the police department where Bornhoft made notes of the conversation.
Defendant telephone Officer Bornhoft at the police department around 1:00 p. m., December 17th and requested that Bornhoft meet defendant at the Elks Club. Accordingly, Mr. Bornhoft went to the Elks Club Silver Room. There defendant asked what Thomas' reaction had been to the proposal at the previous meeting. Officer Bornhoft said that he did not known, that possibly Thomas might go along with defendant but the latter would have to talk to Thomas personally to find out. Defendant said that 'something big' was being planned in connection with the opening of Santa Anita, that there would be five or six agents, that if Thomas would go in on it he could receive from $300 to $400 a week to street. Defendant asked if Officer Bornhoft would arrange to have Lieutenant Thomas meet defendant the next evening at the Elks Club. Bornhoft said he would advise Lieutenant Thomas.
The next evening, December 18th, Bornhoft and Thomas went to the Elks Club. They were eating dinner in the banquet hall on the first floor when defendant arrived near 8:00 p. m. After defendant ate they went to the Silver Room. Defendant asked Lieutenant Thomas why Officer Bornhoft was there. Thomas said that there were too many people who knew about the set-up whom Lieutenant Thomas had never met, that Bornhoft would have to stay in on it for 'security' reasons. There ensued a discussion as to why Lientenant Thomas thought there were 'leaks'.
At the parking lot defendant said his proposition was tied in with the opening of Santa Anita; that they would have to make up their minds; that it concerned opening five or six phone spots placed around the city so as not to cause curiosity with the general public; that all Lieutenant Thomas had to do was call a certain phone number and report any complaint received; that from time to time, to make Lieutenant Thomas 'look good', a 'fall guy' would be supplied to take an arrest; that for this operation which was just the beginning, Thomas would receive $300 a week. The latter asked how it would be paid. Defendant said he did not have that information, but should not be too difficult. Thomas asked if Bornhoft would be the payoff man. Defendant said no, that Bornhoft was all through with the case. Lieutenant Thomas repeated that he wished to meet all defendant's associates, that if defendant could arrange for everyone that knew of the proposition to gather around a table, he (Thomas) would be interested. Defendant said that he would see what he could do, that he doubted it could be done, but he would try and would let Lieutenant Thomas know.
That was the last time Lieutenant Thomas and Officer Bornhoft talked to defendant on the subject. During the period of these conversations, neither Bornhoft nor Thomas intended at any time accept any money from defendant for a dishonest purpose. The officers were under instruction to learn if possible 'who was behind the whole thing'.
For the defense, defendant testified as to his version of the conversations with Officer Bornhoft and Lieutenant Thomas, which version bore a general resemblance to the conversations as testified to by the officers. Defendant asserted that he did not have the corrupt intent to influence the officers, or either of them, in their official actions; that his intent was to prove to himself that the officers were honest, if they showed unwillingness to go along with such a scheme of accepting money; that, after determining they were honest, he could reveal his true plan to them, which was to entrap one Wiseman, whom he (defendant) considered the head of organized bookmaking in Pasadena, along with certain members of the police department whom he felt were cooperating with Wiseman.
As the basis of his belief that bookmaking was organized in Pasadena and that certain members of the Vice Squad were participating in payoffs, defendant detailed how in attending to his accounts, as a wholesale liquor salesman, he would observe activities and hear conversations in bars indicative to him that bookmaking was afoot, some of which remarks referred to 'shakedown' money. Defendant testified to a conversation early in November, 1951, with Wiseman (who had resigned from the police department the year before), in which Wiseman referred to bookmaking activites. Defendant testified to other conversations, incidents and reports as influencing his belief in the existence of organized bookmaking.
Defendant asserted that at the time of the conversations with the officers he did not represent or intend to represent any person or persons interested in bookmaking or payoffs for protection; that he had made no arrangements, nor attempted to make any, with reference to bookmaking or gambling activities. Defendant testified that he first formulated the plan to apprehend Wiseman and his associates, and the members of the Vice Squad he believed were receiving payoffs, around the middle of November, 1951, shortly after he first talked to Wiseman; that he was motivated by the feeling that 'the things for which the police department stood might be demoralized and driven into the ground'.
Defendant admitted that when he was arrested some four months after the aforesaid conversation, he denied having had the conversations with Officer Bornhoft and lieutenant Thomas relating to gambling and payoffs, but that he made the denials because he felt the proper place to tell his true story was in court.
It was stipulated that defendant's reputation prior to December 6, 1951, for truth, honesty and integrity, in the community in which he resided, was good.
As his first ground for reversal, appellant earnestly contends that the court committed prejudicial error in giving to the jury the following two instructions on the law of entrapment:
Instruction No. 851
'The law does not tolerate a person, particularly a law enforcement officer, generating in the mind of a person who is innocent of any criminal purpose, the original intent to commit a crime thus entrapping such person into the commission of a crime which he would not have committed or even contemplated but for such inducement; and where a crime is committed as a consequence of such entrapment, no conviction may be had of the person so entrapped as his acts do not constitute a crime.
'If the intent to commit the crime did not originate with the defendant and he was not carrying out his own criminal purpose, but the crime was suggested by another person acting with the purpose of entrapping and causing the arrest of the defendant, then the defendant is not criminally liable for the acts so committed.'
Instruction No. 852
'When law-enforcement officers are informed that a person intends to commit a crime, the law, in the interests of law enforcement and the suppression of crime, permits the officers to afford opportunity for the commission of the offense, and to lend the apparent cooperation of themselves or of a third person for the purpose of detecting the offender. When such a practice is followed by peace officers, if the suspect himself, originally and independently of the officers, intends to commit the acts constituting a crime, and if in pursuit of such intent he personally does every act necessary to constitute a crime on his part, his guilt of the crime thus committed by him is not affected by, and he has no defense in, the fact that when the acts are done by him an officer or other person engaged in detecting crime is present and provides the opportunity, or aids or encourages the commission of the offense.'
Appellant urges that the giving of the foregoing instructions on entrapment was prejudicial error in that they confused the minds of the jurors as to the true issues involved, since not one scintilla of testimony was offered by either the defense or prosecution upon the theory of entrapment.
It is true, as pointed out by appellant, that he unequivocally admitted that in all his meetings with Officer Bornhoft and Lieutenant Thomas, he (appellant) was the motivating party. He admitted that each and every such meeting was arranged and instituted by him. The initial telephone call to Officer Bornhoft was made by appellant and it was the latter himself who, in that telephonic conversation, requested Bornhoft to arrange a meeting between appellant and Lieutenant Thomas. The former at no time contended, nor is there any evidence whatever that he was inveigled into the commission of the crime charged, or that the police officers had been the procuring cause or instigators of appellant's criminal intent, if any.
It is a settled rule of law that jury instructions must be responsive to the issues, and that in criminal cases, the issues are determined by the evidence. People v. Alamillo, 113 Cal.App.2d 617, 620, 248 P.2d 421. In the state of the record in the instant case it is manifest that had the court refused to instruct the jury on the law of entrapment no prejudicial error would have ensued because that issue was not raised by the evidence.
The question then arises as to whether, under such circumstances, the giving of the challenged instructions constituted prejudicial error. We are satisfied that the foregoing instructions should not have been given. Though correct in the abstract they were not according to the theory of either the prosecution or the defense, and were not responsive to any evidence tending to prove entrapment. It does not follow, however, that in every case wherein such instructions, containing as they do, an abstract principle, are erroneously given, that a judgment will be reversed. It is elementary in our law that prejudice or injury must be shown to have occurred from the giving of the instructions before a reversal is authorized.
In the case now engaging our attention appellant earnestly insists that the challenged instructions tended to confuse the minds of the jurors as to the issues involved and led the jury to consider an issue not presented by the evidence.
When the defense of entrapment is invoked it necessarily assumes that the act charged as a public offense was committed. People v. Lee, 9 Cal.App.2d 99, 109, 48 P.2d 1003. Upon the invocation of the defense of entrapment, the only defense possible to advance is that officers of the law induced the accused to commit the act for which he is being prosecuted, and that except for the trickery, persuasion or fraud on the part of the officers of the law, the accused would not have committed the offense.
The aforesaid instructions, therefore, entitled the jury to believe that appellant admitted the commission of the offense charged against him but was inveigled into its commission by officers of the law. Appellant's sole and only defense was that he did not have that specific intent essential to the commission of the crime of bribery and that therefore, no crime had, in fact, been committed. The instructions in question might well have led the jury to believe that appellant admitted the commission of the crime but was attempting to shift the responsibility therefor to the officers as the procuring cause or instigators of the criminal intent.
The evidence in this case presented but one single issue to the jury, and that was whether or not appellant possessed the requisite criminal intent necessary to constitute the crime of which he was accused. Appellant's defense was that his conduct and actions were motivated by a desire to perform a civic service. That pursuant to that motive he formulated what he termed 'the fictitious payoff scheme' which would ultimately divulge to him the honesty of the police officers, and after determining the honesty of these police officers, it was his plan and intention to inform them of his true purpose, which he claimed was to expose gambling, bookmaking, and other illegal activities in the city of Pasadena, and to expose the claimed protection of these interests by the police department or some of the officers. Therefore, the single and only issue before the jury was the verity of appellant's contentions and the presence or absence of the requisite criminal intent. The error of inapplicable instructions rests in the fact that they pertain to points not pertinent to the issue, and contain matters of law for the jurors' consideration not necessary for their information. Therefore, instead of enlightening they tend to confuse and mislead the jury. Such inapplicable instructions in effect either create, as they did in the instant case, a false issue or constitute a misstatement of the real issue, thereby distracting the attention of the jury from and befogging the real issue.
However fantastic the testimony of appellant may be regarded, whether guilty or innocent, he was entitled to have his case fairly tried according to the established rules of law. True, the court did give full and correct instructions as to the proof required to show a specific criminal intent in bribery cases, but the instructions on entrapment advised the jury that the accused had the necessary criminal intent but contended he was inveigled into the commission of the crime by the officers who were the procuring cause or instigators of such criminal intent. Thus the instructions were contradictory, and in such cases it is almost always impossible to say that the jury has not followed the erroneous instructions rather than the correct ones. The instructions here under attack, if followed by the jury, excluded from their consideration the sole and only defense offered by appellant. 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, 385, we must direct a reversal.
Since a new trial will probably take place, we shall give consideration to appellant's further contention 'That the court erred in not instructing the jury in any manner as to the appellant's beliefs'. This claim of appellant cannot be sustained. The refusal to give certain proffered instructions as to appellant's beliefs was not error because the court fully, fairly and correctly admonished the jury as to the intent necessary to establish the offense with which he was charged. In support of what we have just said, we quote the following language from one of the instructions given:
'Thus in the crime of Bribery, a necessary element is the existence in the mind of the perpetrator of the specific intent to corruptly influence unlawfully the officers in respect to their official duties as such officers, and unless such intent so exists that crime is not committed.
'You are instructed that the defendant has a right to introduce evidence concerning, and to testify himself upon the question of whether or not he had the specific intent to corruptly influence the official action of the witnesses Boernhoeft and Thomas; and in this connection, if you find that such evidence, whether coming from the prosecution or from the defense, convinces you that the defendant did not have such intent, or raises a reasonable doubt in your mind as to whether or not he had such intent, it will be your duty, to return a verdict of not guilty in favor of the defendant.'
Furthermore, while the trial was in progress, the court advised the jury as follows:
'Now, ladies and gentlemen of the jury, I should explain this to you: that in admitting evidence of this character, it only goes to the question of the state of mind or the intent of the defendant, and goes to his reasons for his state of mind or his intent at the time. It doesn't establish the truth or falsity of the conversations which he will relate, and it is not necessary, either, for him to prove their truth nor for the People to prove the untruthfulness of them.
'Do you understand that? It merely goes to his recitation of his reasons which were the bases for his state of mind and intent. * * * * * *
'You must weigh the testimony of this witness by what you observe and hear.
'Now, I should state to the jury that a person may testify directly as to his intention. In other words, as to why he did a certain thing, and that is direct evidence.
'Witnesses may also testify as to the basis upon which they formed their intention and upon which the witness acted. It does not prove--the testimony of the reason, or relating to the reason that the witness gives for the forming of his intention, or why he acted, does not prove either the truth or falsity of the reasons which he gives, and you must weigh those matters in the light of the testimony that you hear from this stand.'
The order from which this appeal was taken is reversed and the cause remanded for a new trial.
DORAN, J., and ROBT. H. SCOTT, J. pro tem., concur. --------------- * Subsequent opinion 268 P.2d 6.