Opinion
Hearing Granted by Supreme Court Nov. 28, 1927.
Appeal from Superior Court, Riverside County; Wm. H. Ellis, Judge.
H. N. Lein was convicted of the possession of intoxicating liquor, and he appeals. Reversed. COUNSEL
Fred L. Hamblin, of Riverside, for appellant.
U.S. Webb, Atty. Gen., John L. Flynn, Dep. Atty. Gen., and John D. Richer, of Los Angeles, for the People.
OPINION
THOMPSON, J.
The defendant was charged by information with the offense of having possession of intoxicating liquor containing alcohol in excess of one-half of 1 per cent. for beverage purposes, and was also charged with a prior conviction of the same offense, to which prior conviction he pleaded guilty. By verdict of the jury he was found guilty of possession, and the court, by judgment upon the verdict, imposed a fine of $1,000, and, upon failure to pay the fine ordered the defendant to be confined in the Riverside county jail, receiving a credit of $2 per day for each day’s confinement, and that he be not confined under any circumstances for more than a period of six months. The defendant appeals from the judgment.
The testimony in the case is so unusual that it seems expedient and necessary to set it forth with considerable detail. The prosecuting witness, who, by his own sworn statement, had been engaged in the illicit and forbidden business colloquially termed "bootlegging," and who also admitted that at the preliminary hearing he had testified falsely concerning material matters, testified that he met the defendant on the streets of Blythe in the afternoon of January 23, 1927, and asked him if he had some whisky for sale; that defendant said he had, whereupon the witness said he "would come out to the house and talk it over"; that shortly after 8 o’clock in the evening, he and a Mr. Babcock went out to the defendant’s house about two miles west of Blythe, where in the presence of the defendant, his wife, two sons, and a Mr. Haynes, he entered into a bargain to purchase from the defendant 50 gallons of whisky and to return for it about 1 o’clock the next morning on January 24, 1927; that near that time he returned with a Mr. Rye, went out into a cotton patch near the house, and got 25 gallons of whisky, which was then contained in two kegs, and took it into the house, where there were already 5 gallons; that by test with an alcohol hydrometer the liquor appeared to be 102½ (presumably 102½ proof); that after taking these two kegs into the house there were 30 gallons there, the 25 which they had taken in and 5 gallons already there; that he knew it was whisky in the house, because they drank some of the liquor while they were there; that the defendant transferred one container of 12 gallons into 10-gallon containers; that they then loaded into the witness’ car two 10-gallon kegs, three 5-gallon kegs and one 15, which he transported to Mr. Rye’s ranch near El Centro and hid in a tin container. On cross-examination the witness testified that the two containers in the cotton patch were 25 and 15 gallons in capacity; that the three 5-gallon kegs "came from outside some place"; that the time he drank the whisky at the defendant’s house was on the occasion of the first visit; that he had had nothing to drink between that time until after he came back, and that he was perfectly sober; that he had been down there the week before and had been held up; that he was pretty sore about being held up; that when he saw a shotgun which had been brought to the defendant by one of his sons in response to a demand therefor, at the time they were loading up the whisky, he knocked the defendant down, and as he ran he shot, jumped on the car driven by Mr. Rye, and rode away.
The defense witnesses, consisting of John W. Haynes, the defendant, Mrs. Lein, and the two sons of defendant of the age of 17 and 19 years, told in many material respects the same story concerning the happening at about the hour of 1:30 on the morning of the 24th. They all testified that there was no liquor around the place to their knowledge and they heard no bargaining for liquor; that the house referred to was a temporary affair about 14x16; that they were all sleeping inside, and that about 1:30 somebody knocked on the door and asked for water for their automobile, and was told by the defendant that there was a pump near the front of the house; that a few minutes later some one again asked for a tire pump, whereupon the defendant dressed himself and went out; that shortly thereafter he yelled for the shotgun; some shots were fired within three or four minutes after the defendant went out, and defendant was shot in the leg; that as soon as the wound was dressed Mr. Haynes and the younger son, Raymond, went after a doctor and also the police. The defendant, Mrs. Lein, and Mr. Haynes all testified that on the occasion of the first visit of the prosecuting witness Trivet and a Mr. Babcock nothing was said concerning the purchase of liquor; that the two sons were attending a picture show; that no liquor was drunk nor in sight, but that, on account of their acquaintance with Mr. Babcock, Mr. Trivet and Babcock had dinner with them. Raymond Lein also testified that when he heard his father call for the shotgun he jumped out of bed and took the gun toward his father; that he saw that Trivet had a gun pointed at his father; that as he ran out Trivet turned the gun on him, and with a vulgar epithet, not necessary to repeat here, said "Get away from here; " that he dropped the gun; that as Trivet turned the gun from his father the latter grabbed Trivet and as he did so Trivet shot his father and turned and ran toward the automobile; that his father told him that "they [Trivet and Rye] told me they had hi-jacked some whisky and wanted some money." The defendant corroborated the son in all of this testimony and added that, when in response to Trivet’s request for $50 he stated that he did not have that sum, Trivet said, drawing his gun, "You s_____ of a b_____, you have got it, and you want to dig it up; " that it was then he yelled for the shotgun. Mr. Haynes and Raymond Lein also agreed in their testimony that, when they started after the officers and the doctor, the keys had been taken out of two automobiles belonging to them, and that they had to turn the ignition switch with a jackknife to start one of the cars; that they went directly to the residence of Ben F. White, constable and deputy sheriff, and told him that the defendant had been shot; that Mr. Haynes told White what had happened; and that he thought "they had hi-jacked" the defendant "out of some whisky or money." Haynes explained this latter statement by saying that, while he had not seen any whisky, he had heard somebody say something about hi-jacking some whisky, and that he thought it was Mr. Lein’s until he heard the defendant tell Mr. White that he had no whisky there. The testimony of Raymond Lein and his father concerning the fight is further corroborated in important details by Mrs. Lein and the son William Lein. The officers testified that they found a 15-gallon and a 10-gallon keg of whisky in a tin container on Rye’s ranch about five miles south of Holtville on the morning of January 24th, and Mr. White, the deputy sheriff, testified that, when Raymond and Mr. Haynes came out to get his assistance, Raymond said, "They stole my daddy’s whisky and shot him," and that Haynes was very anxious to catch the offenders, saying "I don’t care if we have to pay a little fine; " that he and Mr. Munger went to the defendant’s home, and that there the defendant gave him the same explanation concerning the fight as was testified to by him; that he investigated the place and found evidences of a scuffle and a part of Mr. Lein’s glasses on the ground.
The appellant maintains that, assuming that defendant had possession of intoxicating liquors and that Trivet and he changed the whisky from the larger containers into the smaller ones and loaded them into the automobile belonging to Trivet, Trivet was an accomplice in the eyes of the law, and that there was not sufficient testimony without the testimony of the accomplice to connect the defendant with the offense. This argument, however, is concluded by the case of People v. Galli, 68 Cal.App. 682, 230 P. 20, and the cases therein cited, wherein it is held that, though the possession of the purchaser is similar to the offense of possession by the seller, yet similarity of offenses is not the same as identity of offenses and that "a purchaser of intoxicating liquors is not guilty of inciting, aiding, or abetting, counseling, or procuring the sale thereof to himself."
The defendant also maintains that the judgment is void for the reason that it provides that upon failure to pay the fine of $1,000 he be confined in the county jail, receiving a credit of $2 per day for each day’s confinement, but that he be not confined for more than six months. The invalidity, he says, arises from the fact that the maximum imprisonment for the offense of which defendant was convicted provided in title 2, § 29, of the National Prohibition Act (Fed. Stats. Ann. 1919 Supp. p. 215 [27 USCA § 46], is 90 days. Section 1205 of the Penal Code, relating to imprisonment for the purpose of satisfying a fine imposed by the superior court, provides that the confinement shall not "extend in any case beyond the term for which the defendant might be sentenced to imprisonment for the offense of which he has been convicted." Therefore, as was held in the case of People v. Cencevich, 64 Cal.App. 39-45, 220 P. 448, 450, "the judgment *** is void to the extent that it directs imprisonment beyond the period of 90 days." That does not mean, however, as counsel contends, that the entire judgment is void. It will be observed that in the case just cited and relied upon by appellant the judgment of the trial court was modified to conform to the law announced, and, as thus modified, was affirmed. As further authority for the proposition that the pronouncement of an erroneous judgment would not necessarily be sufficient grounds for a reversal, but rather an informality to be otherwise corrected, see People v. McNeet (Cal.App.) 251 P. 688.
The appellant does not argue the sufficiency of the evidence to support the verdict in the event that Trivet might not be held to be an accomplice. For what reason he fails in this regard is hard to understand, unless it be that his assumption that he was an accomplice was so all persuasive to his own mind as to cause him to lose sight of the most unsatisfactory state of the record. He merely asserts that the verdict was contrary to law and the evidence and presents a sufficient résumé of the evidence to show that the witness Trivet was not corroborated and to indicate that the evidence might not be sufficient, which indication is borne out by a reading of the testimony. Under these circumstances and the paramount duty incumbent upon all courts to exercise their power to the end that no one shall receive unjust treatment, we are under the compulsion of determining whether the verdict is contrary to the evidence. It needs no citation of authority for the assertion that the statements made by the witnesses Haynes and Raymond Lein to Deputy Sheriff White were pure hearsay and were entirely valueless as evidence. Subtracting these statements from the transcript, the defendant was convicted upon the uncorroborated testimony of a self-confessed "bootlegger" and perjurer. There is nothing in the story he related from the witness chair to commend it as a truthful version of the affair; in fact, it is conflicting and improbable. At first he was specific concerning 25 gallons of liquor contained in two kegs which when brought into the house where there was already 5 gallons made 30 gallons. Later these two kegs became 40 gallons of 25 gallons and 15 gallons, respectively. At first he testified in an apparent effort to demonstrate that it was liquor held in contravention of the law; that they drank some of the 5 gallons in the early morning hours, and subsequently discovering, in his own mind, that this would not hang together, changed the drinking time to 8 in the evening before. His account of the shooting is incredible and improbable. The liquor was loaded into the automobile which was some distance from the house and he says that when the defendant yelled for his gun he started to run and shoot. Somebody had to bring the gun and according to the witness the automobile was under way. There was no occasion for him to shoot. All that he had to do to make his escape was merely to run. Furthermore, no reason is assigned by Trivet why the defendant should have called for a gun. On the other hand, it is hardly probable that, had the defendant and his family been implicated in a sale of 50 gallons of liquor, they would have immediately called in a deputy sheriff. Their version of the shooting is logical and probable. In unadulterated English the witness Trivet attempted a "holdup," to which the defendant would not submit. Even though the statements made by the witness himself and Raymond Lein to Officer White are valueless as evidence, nevertheless, it is fitting to observe that these statements may easily have resulted from the defendant’s statement that Trivet and Rye "had hi-jacked some whisky and wanted some money." The idea back of the testimony of the defendant can be gained from a portion of the testimony of the witness at the preliminary hearing, as follows:
"Judge: Mr. Trivet, will you tell the court, since you signed a complaint for sale of moonshine whisky on January 24, 1927, and sworn to before me, will you state just how that sale took place and what transpired at that time? A. I cannot remember just how it came up. I rather not testify. I cannot give you the information now."
Prosecutor continues questions:
"Q. What is the reason? A. It is rather a personal question is it not?
"Q. You swore that this crime was committed and now you refuse to testify relative to that matter. Now, tell the court the nature of this bargain relative to liquor; just tell your own story, just as it happened, that is all we are asking. Just tell where the conversation first took place relative to this liquor and your proposition, if any, his proposition, if any; just tell the court if any sale was consummated. What are you afraid of? A. If I testify here it will incriminate me in the other case.
"Q. No; it will not. You can tell with freedom here; it will not be used against you. Go ahead and talk.
A. I am afraid it will be used against me.
"Q. Now, just tell what the bargain was.
A. There was no bargain.
"Q. Did you not agree to buy something? What was the consideration?
A. What do you mean by consideration?
"Q. I mean what was to change hands from you to Mr. Lein here, money?
A. Maybe money.
"Q. Are you acquainted with Mrs. Lein, the wife of the accused in this case?
A. I don’t know her.
"Q. When did you see her first?
A. When I walked in that door.
"Q. You already testified that you were out there at his home between 8 and 9 o’clock, and had a conversation with him. What did Mr. Lein say?
A. I don’t remember.
"Q. How many gallons of liquor did you want?
A. All I could get.
"Q. How many did he sell you? Was it 10 gallons or was it 50 gallons as set forth in the complaint? What was the approximate amount?
A. There was no bargain.
"Q. You stated the amount in the complaint. Who did he sell it to?
A. Not to me.
"Q. Did you get any of his whisky that night?
A. I hope I did not.
"Q. Did you take any in your physical custody, put it in your automobile by and and help?
A. No; I did not put it in.
"Q. Did Mr. Lein put it in your automobile?
A. I don’t know. I was drunk.
"Q. You were intoxicated, then?
A. Yes; that sounds more like it.
"Q. Were you possessed of your mental capacities? Do you remember what transpired?
A. Once in a while I can remember.
"Q. You remember your name was Mr. Trivet, don’t you?
A. Yes.
"Q. Evidently there was a transaction that took place to get this whisky. Just tell the court about this bargain, about this purchase, this sale of 50 gallons.
A. I told you before I did not remember just how it all happened.
"Q. You don’t remember anything?
A. I do not remember anything that took place that night."
This testimony is a part of that which the witness admitted at the time of the trial was untrue. It is evident that the witness was endeavoring to protect himself if possible and in most any way possible at the expense of the defendant.
While it is true that where there is any substantial testimony to support the verdict the appellate tribunal will not interfere with the result, nevertheless, where there is no substantial evidence to support the verdict, it ought not to be allowed to stand. It may be said that, ordinarily, the credence to be given the testimony of a witness is largely determined by his appearance on the stand, his manner of testifying, the inflection of the voice, the readiness of response, and the manifold actions that indicate sincerity or insincerity. But the testimony of the witness Trivet, as it appears in print, is so conflicting and improbable that it is entitled to no consideration and raises no substantial conflict in the testimony. It is so apparent from the record itself that it is entitled to no credence that observation of the witness is unnecessary. The verdict ought not for those reasons to be permitted to stand. We cannot escape the conclusion that the verdict in this case was the result of prejudice, rather than the calm and dispassionate judgment of the jury. As was said in People v. Hamilton, 46 Cal. 540: "A conviction upon such evidence would be a blot upon the jurisprudence of the country, and a libel upon jury trials." Being unable to place any reliance in the testimony of the prosecuting witness, the statement of the court in People v. Chew Wing Gow, 120 Cal. 298, 52 P. 657, "We do not think we should sustain verdicts against even Chinamen when it is manifest that they were procured by perjury," might well be paraphrased to meet the exigencies of this situation.
Judgment reversed.
We concur: WORKS, P. J.; CRAIG, J.