Opinion
Cr. 6393
1-12-1959
The PEOPLE of the State of California, Plaintiff and Appellant, v. Henry Victor PREWITT, Defendant and Respondent. *
Edmund G. Brown, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty. of Los Angeles County, Jere J. Sullivan, Lewis Watnick, Robert Lederman, Deputy Dist. Attys., Los Angeles, for appellant. Albert Jack Chotiner, Russell E. Parsons, Beverly Hills, for respondent.
The PEOPLE of the State of California, Plaintiff and Appellant,
v.
Henry Victor PREWITT, Defendant and Respondent. *
Jan. 12, 1959.
Hearing Granted March 11, 1959.
Edmund G. Brown, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty. of Los Angeles County, Jere J. Sullivan, Lewis Watnick, Robert Lederman, Deputy Dist. Attys., Los Angeles, for appellant.
Albert Jack Chotiner, Russell E. Parsons, Beverly Hills, for respondent.
WHITE, Presiding Justice.
In an indictment returned by the Grand Jury of Los Angeles County, defendant was accused in Count I of violating subdivision 1, Section 337a of the Penal Code in that he unlawfully engaged in poolselling and bookmaking on horse races. Count II alleged the violation of subdivision 2 of the aforesaid section of the Penal Code, in that defendant occupied an apartment for the purpose of recording bets on horse races. Upon his arraignment, defendant made a motion under Section 995 of the Penal Code to set aside the indictment on the ground that he had been indicted without reasonable or probable cause. The motion was granted and the case dismissed. From the order setting aside the indictment, the People prosecute this appeal.
We regard the following as a fair epitome of the evidence presented to the Grand Jury and upon which the indictment herein was returned. Joseph S. Deiro testified he was a police officer of the city of Los Angeles, attached to the Administrative Vice Division. That in January or February of 1958 he received a telephone call and talked to a man with whom he had spoken on the telephone before. The officer recognized the voice of his caller and had previously had telephone conversations with him, although he did not know the person's name, nor had he ever known it, but he had talked to him on three previous occasions. We deem it unnecessary to detail the three previous conversations had by the officer with this unknown person. Insofar as here pertinent and as affecting the reliability of information given to Officer Deiro, we quote the following from his testimony before the Grand Jury:
'Q. (By Mr. Ritzi, Deputy District Attorney): So, in other words, in four separate cases, (presumably including the instant one) this informant whom you don't know but whose voice you recognize over the telephone has given you information that has resulted in arrests, is that correct? A. That is correct.
'Q. All right. Now, let me ask you this, sir: At the time that you received the telephone call in the latter part of January or the early part of February of this year, did you feel that that was reasonable for believing a person subsequently arrested to have committed a felony? A. Yes, sir.
'Q. And did you feel that this person had committed a felony? A. Yes, sir.
'Q. I see, and is that what you relied on, sir? A. Yes, sir.
'Q. All right. And you felt that was a charge made on reasonable cause, is that correct, sir? A. That is correct.'
With regard to the arrest of defendant herein, Officer Deiro testified that in the aforesaid telephone call received in the latter part of January or early part of February, 1958, his informant advised him that bookmaking was being conducted in Apartment 401 at 248 South Western Avenue, in the city of Los Angeles, that this was what is called a 'back office', wherein a person on the telephone was calling 'relay spots' and 'taking off' bets from the relay spots and permanently recording them at this so-called back office. On February 20, 1958 the officer went to the aforesaid premises where there was located a four-story, multiple unit apartment house; it is a large brick building with entrances on Western Avenue. At approximately 1:25 p. m., Officer Deiro and his partners, Sergeant May and Sergeant Bennett, went to this location. Sergeant May was directed to go to the door of Apartment 401 and to stand by there until Officer Deiro arrived. Officer Deiro and Sergeant Bennett then went to the manager's apartment which was located on the second floor. The officer contacted a Mr. Hooker, identified himself and advised him that he (the officer) was about to make an arrest in Apartment 401. The officer asked Hooker if he had a key to this apartment so that they could enter without damaging the door and Mr. Hooker gave him the key to Apartment 401. The officer then went up to the fourth floor and after arriving at Apartment 401, they inserted the key into the lock, turned the key, and opened the door slowly. The door opened approximately two inches where it was restrained by a night latch. The officer 'then forced the latch and entered the apartment', and immediately entered the room to his right where he observed a male Caucasian standing in the middle of the room. This person was defendant Henry Victor Prewitt.
As Officer Deiro entered this room, he observed to his left on a table a professional type bookmaking rack, a photograph of which was marked Grand Jury Exhibit 1, and in the photograph is a table with a rack on it, a phone and a television set, together with numerous 'betting markers'. This was the condition of the premises at the time Officer Deiro entered, with the exception of the bundles which appeared on the table. Those bundles were found in a metal box and placed upon the table for the purposes of identification in the photograph. Other than that, the rack with the professional type betting markers, the telephone and the scratch sheet were at this location as 'this picture signifies'.
In regard to 'these' other bundles of professional betting markers, this particular box was to the right of the chair or between the chair and the television set; was opened up and was plainly visible at the time of entry.
Upon entering, Officer Deiro identified himself to Mr. Prewitt and placed him under arrest for suspicion of bookmaking. He asked the defendant, 'How long have you been making book here?' and he stated, 'Just a little while'. He then stated, 'I don't want to answer any more questions until I see an attorney as they might incriminate me'. The officer asked him if he had a federal wage and tax stamp and the defendant stated, 'No'. He was asked why he registered at this location under the name of Roy Rose, but did not answer, and when asked where he lived, he stated at 729 Verdugo Road in Glendale.
Officer Deiro had been on the vice squad for approximately three years and during that time had made approximately two to three hundred bookmaking arrests. He is familiar with the way bookmaking is carried on in the city of Los Angeles.
The officer described the aforesaid term 'back office' as follows: It would have either one, two or more front offices. In this front office they would hire a person to answer the phone. The bookmaker or agent would give the telephone number of the front office, or relay spot, to the bettor and the bettor would call this number, giving an identification code; the person at the relay spot will accept the wager and make a temporary recordation of it. Just prior to post time of each race, the back office will call the front office, or relay spot, and will accept all the wagers that the person in the front office has accepted to that time. The back office will then make a permanent recordation of these wagers and the clerk in the front office will then erase the recordation from the front office. This operation is used so as not to lose the records of wagers for that day inasmuch as many relay spots are 'taken' by the police department. The type of operation shown by Grand Jury Exhibit I was a 'back office' to a relay spot or a group of relay spots, in the opinion of the officer.
Officer Deiro searched Mr. Prewitt and found a key, which was marked Grand Jury Exhibit No. II, in his pocket with some other keys. His key, Exhibit II, was tried in the door of Apartment 401 and it locked and unlocked the same.
Grand Jury Exhibit III appears to be a rack that is commonly referred to as a professional type betting marker. The bookmaker at the back office will insert cards into these slots (indicating) with the identification of the bettors and the agents, and upon receiving the information from the relay spot will pick out the card pertaining to that particular bettor, record the bets, and insert it back into the slot. Exhibit III was found by the officer on the table to his left as he entered the premises. It was opened up and about three-quarters filled with betting markers.
In the photograph (presumably Exhibit I) there appears to be some bundles. Those bundles were betting markers for the prior day's bettings. Officer Deiro had with him nine bundles, each of the bundles wrapped in a National Daily Reporter. All of these bundles were marked as Grand Jury Exhibit IV.
The National Daily Reporter is a publication which is published daily except Sunday which lists the horses, jockeys, probable odds, post positions, and handicaps of horses of various tracks throughout the United States for that day. 'Scratch sheet' is the common name used for this publication in bookmaking circles.
Each of 'these bundles' contains professional type betting markers and from these bundles, which are Grand Jury Exhibit No. IV, the officer tallied the betting that was taking place. There would be 'hundreds and hundreds' of bets recorded every day and on the majority of days the amount of the bets would range in excess of $5,000. The officer described and explained the use of other bookmaking paraphernalia found in the room and which testimony need not be here narrated.
Defendant told the officer that he had rented this apartment some two and a half years ago.
Police Officer Jerry L. May, also attached to the Administrative Vice Division, identified Grand Jury Exhibit IX as a little black address book which he took off of the person of defendant Prewitt. The latter told him that it was his personal notebook and, among other things, stated that it was his personal book and that he had written all the names and addresses in the book. The officer also identified Grand Jury Exhibit X which had two handwriting cards. At the time, Officer May requested that the defendant make the cards out. He refused to do so, stating that he felt that this would be detrimental to whether he would be found guilty or not in the bookmaking case. He was then asked to just fill out the pertinent information and he refused to fill out the capitals and the small letters of the alphabet, and the numbers. He was of the opinion if he filled this portion in this would be incriminating to himself. The defendant wrote on the front of both cards 'the information is from one to ten'. He filled them in in his handwriting on the two cards and all of the handwriting on the two cards except the name 'J. L. May' and the inked notations are in his handwriting.
The officer was present with Officer Deiro when the arrest was made at 248 South Western Avenue, Apartment 401.
Lawrence W. Sloan is an Examiner of Questionable Documents employed by the Los Angeles Police Department. After testifying to his qualifications, which include studies and testimony before other courts and grand juries approximately nine hundred fifty or sixty times, he was shown Grand Jury Exhibit No. X, which appears to be two handwriting cards and two professional type betting markers which are a part of Grand Jury Exhibit V and a small black notebook which is Grand Jury Exhibit No. IX together with a group of five ABC type betting markers which compose Grand Jury Exhibit No. VIII. The witness testified that he had examined them before on the 17th of March, 1958; that the main examination of the writing on these various exhibits was to determine whether or not Exhibits V and VIII were written by the same person who wrote the penciled writing on the two handwriting cards, Exhibit X, on lines one through fifteen, and the penciled writing appearing in Exhibit IX. As a result of that examination, it was the opinion of the witness that the penciled writings appearing on the two yellow pieces of paper marked Exhibit V, the penciled writing appearing upon the five pieces of paper marked Exhibit VIII were written by the same person responsible for the penciled writings found in Exhibit IX and on the two handwriting exemplar cards, Exhibit X. The witness further testified as to a portion of Exhibit VIII, which was bound by an elastic band, that they appear to be a portion of approximately 100 such instruments that he examined beginning March 17, 1958. He had the opportunity to glance over them and without going particularly through each one he was fairly certain that they are the same group and in all probability were written by the same person responsible for the writing on Exhibits IX and X.
The primary question presented to us on this appeal is whether a police officer has reasonable cause to believe that a felony is being committed in an apartment at a designated address, when prior to the arrest of the person at such place, the officer received information by telephone from a person, who on three previous occasions gave information to said officer by telephone, which information on each occasion proved to be reliable, although the officer did not know the informant, but recognized his voice as that of the person from whom the officer had received such prior information. It is conceded that the question is one of first impression. It is, however, the contention of the People that such information was received from a reliable informant, and established reasonable cause for the arrest of defendant in the case at bar. That therefore, the search and seizure being incident thereto, was valid.
Reasonable cause has been defined by our Supreme Court as such a state of facts as would lead a man of ordinary care and prudence to believe, or entertain an honest, strong suspicion, that the person in question is guilty of a crime (People v. Kilvington, 104 Cal. 86, 92, 37 P. 799). Probable cause has been defined as a suspicion founded upon circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true (People v. Brite, 9 Cal.2d 666, 687, 72 P.2d 122; Bompensiero v. Superior Court, 44 Cal.2d 178, 184, 281 P.2d 250; United States v. Bell, D.C., 48 F.Supp. 986; Cook v. Singer Sewing Machine Co., 138 Cal.App. 418, 422, 32 P.2d 430). 'There is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances.' Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374.
In considering the question of reasonable or probable cause upon the part of the officer to arrest respondent, we are to look only at the facts and circumstances presented to the officer at the time he acted.
Applying the foregoing rules to the facts of the case now engaging our attention, we think it must be held that Officer Deiro had reasonable cause to believe that respondent may have been engaged in the commission of a felony.
It is true, as urged by respondent, that the Supreme Court in the case of Willson v. Superior Court, 46 Cal.2d 291, 294, 294 P.2d 36, 38, in discussing the subject of search and seizure without benefit of a warrant, said: 'Although information provided by an anonymous informer is relevant on the issue of reasonable cause, in the absence of some pressing emergency, see People v. Kilvington, 104 Cal. 86, 92-93, 37 P. 799, 43 Am.St.Rep. 73, an arrest may not be based solely on such information, (citing cases), and evidence must be presented to the court that would justify the conclusion that reliance on the information was reasonable. See, People v. Boyles, supra, 45 Cal.2d 652, 656, 290 P.2d 535.' However, in the cited case it was held (46 Cal.2d at page 295, 294 P.2d at page 38) that evidence to justify the conclusion that reliance on the information was reasonable may be supplied by past experience with the informer. The Willson case is dissimilar to the case at bar in that in the former the San Diego police had had no previous experience with the unknown informer, while in the instant case there was presented to the grand jury evidence of Officer Deiro's successful past experience with the informer. A reliable informant has been defined as a person whose information has in the past led the police to valid suspects (People v. Dewson, 150 Cal.App.2d 119, 128, 310 P.2d 162). As was said in People v. Boyles, 45 Cal.2d 652, 656, 290 P.2d 535, 537: '* * * reasonable cause to justify an arrest may consist of information obtained from others and is not limited to evidence that would be admissible at the trial on the issue of guilt.'
In the case of People v. Penson, 148 Cal.App.2d 537, 539, 307 P.2d 24, 25, it was held that a valid arrest may be made solely by reason of information communicated by a reliable informant as above defined herein. In the case just cited, the court stated: '* * * The officers' appraisal of the informant's reliability was based upon the truthfulness of prior reports from this person which they had verified upon investigation.' And in Trowbridge v. Superior Court, 144 Cal.App.2d 13, 23, 300 P.2d 222, 229, this court said: '* * * that it is not the number of informers involved but the reliability of the informant and reasonableness of the information supplied which should count the most with the officer in making up his mind what to do.' Under the facts and circumstances here present we entertain no doubt that the reliability of the informant was established.
That the officer's recognition of the informant's voice is competent evidence and a circumstance to be considered in the matter of identification is firmly established. 'Identity of a person is permitted by evidence solely of recognition of a voice' (People v. Glab, 15 Cal.App.2d 120, 123, 59 P.2d 195, 197). 'It is universally recognized that the voice as well as the physical appearance of a person, is a means by which identification is made possible * * * Therefore testimony relating to the identity of the voice is competent, its probative value being a question of fact for the jury' (People v. Mullins, 145 Cal.App.2d 667, 670, 303 P.2d 58, 60).
The apprehension of respondent that to justify his arrest would open the door to police officers to utilize fictitious informants in order to perpetrate illegal searches and seizures is answered by the court in Lorenzen v. Superior Court, 150 Cal.App.2d 506, at page 510, 310 P.2d 180, at page 183, wherein it is stated: 'An additional contention made by petitioner is answered in People v. Garnett, supra, 148 Cal.App.2d 280, at page 284, 306 P.2d 571, at page 574: 'Appellant assumes that police officers would, to suit their convenience, make use of fictitious informants as bases for illegal searches and seizures. Such assumption is unauthorized and is contrary to statutory presumptions that official duty has been regularly performed and that the law has been obeyed. * * * When an officer has in good faith testified that he had acted upon the information of an unnamed person and that such informant was reliable, he has thereby established a firm basis for his search of a suspect's premises. Pen.Code, sec. 836. * * * So long as the good faith of the arresting officer with respect to the reliability of his informant satisfies the scrutiny of the trial judge, he is in substantially the same position as if he had come with a warrant of arrest.'' See also, People v. Boyd, 162 Cal.App.2d 332, 327 P.2d 913.
Respondent relies heavily upon the case of Priestly v. Superior Court, 50 Cal.2d 812, 330 P.2d 39. To us it appears that this case does not aid him. In the Priestly case, an 'information' charged defendant with possession of narcotics. At the preliminary examination, an officer testified that acting solely on the information from two informers, he and another officer went to defendant's apartment and knocked on the door. After some ten minutes defendant opened the door, whereupon the officers placed him under arrest and searched his person and the apartment. They found narcotics upon his person and in a dresser drawer. The arrest and search were made without a warrant. Defendant contended 'this testimony was not competent since he objected to it, demanding that the identity of the informers be disclosed or the officer's testimony be struck.' The Supreme Court held that the communications of the informers was material to the issue of reasonable cause to make the arrest and search. Defendant's motion that the identity of the informant be disclosed or the officer's testimony be struck was denied by the magistrate and he was held to answer. When arraigned in the superior court defendant moved to set aside the 'information' on the ground that the evidence against him was obtained by illegal search and seizure. Upon the denial of his motion defendant sought a writ of prohibition to restrain the superior court from further proceedings on the 'information'. The writ was granted.
In the case now before us, it is not an 'information' but an 'indictment' which accuses respondent Prewitt of the offense of bookmaking. The latter moved to set aside the 'indictment' under Section 995 of the Penal Code and his motion was granted.
In the Priestly case, supra, what the Supreme Court held was, as stated by respondent, '* * * that it was error to deny the defendant the right to learn who the informant was'. Since we are here concerned with an 'indictment', and not an 'information', we consider as pertinent to the question confronting us, the following language of Mr. Justice Spence in his dissenting opinion in the Priestly case, supra, 50 Cal.2d at page 824, 330 P.2d at page 47: 'If the above-mentioned testimony had been introduced before a grand jury and petitioner had thereafter been charged by indictment, there would be no question concerning the jurisdiction of the superior court to proceed with the trial of petitioner. In that case, petitioner could not have complained because he had not been present when the testimony was taken before the grand jury and, of course, he would have had no opportunity to cross-examine the witnesses or to demand the disclosure of the names of any informers.' (Emphasis added.)
As was said in Lorenson v. Superior Court, 35 Cal.2d 49, 55, 216 P.2d 859, 863, 'An indictment is but an accusation, presented by the grand jury to a competent court, charging a person with a public offense. (Cases cited.) The duty of determining whether or not an indictment should be found is lodged exclusively in the grand jury and not in the courts. The Legislature has stated that duty as follows: 'The grand jury ought to find an indictment when all the evidence before them, taken together, if unexplained or uncontradicted, would, in their judgment, warrant a conviction by a trial jury.' Pen.Code, sec. 921; emphasis added. A court may not substitute its judgment as to the weight of the evidence for that of the grand jury. 'If there is some evidence to support the indictment, the courts will not inquire into its sufficiency [cases cited].'' (Emphasis added.)
It has been held that when an indictment does not rest upon arbitrary action, and some rational ground is revealed by the evidence adduced affording some rational ground for the possibility that the person named in the indictment is guilty, the courts will not act to prevent a trial of the accused (Mold v. Superior Court, 35 Cal.2d 73, 75, 216 P.2d 874).
We are not here concerned with an appeal from a judgment of conviction following a trial. We of course do not know what evidence may be presented at the trial, if one is held--whether the officer will then know the identity of his informant and disclose or refuse to disclose the same, but we do hold that upon return of the indictment herein the superior court had jurisdiction to proceed with a trial thereon, and the ultimate decision on the admissibility of the officer's testimony can be made at the trial on the basis of all of the evidence bearing on the issue. Motion to Augment the Record
Respondent has filed a motion to augment the record herein by adding thereto the minutes of the Municipal Court of Los Angeles Judicial District in Case No. 143900 entitled People of the State of California v. Henry Victor Prewitt, and to further add to the record on appeal a certified copy of the complaint filed in the aforesaid court on March 3, 1958, wherein respondent was accused of violating Section 337a of the Penal Code. The motion is accompanied by an affidavit of Russell E. Parsons, Esq., one of counsel for respondent, wherein it is set forth that the defendant named in the municipal court action is respondent herein, and that the charge contained in the indictment in the instant case is the identical charge contained in the aforesaid complaint filed in the municipal court. That after a preliminary examination, at which time substantially the same evidence was presented to the judge presiding at said preliminary examination, 'said case was dismissed by reason of the fact that the evidence had been unlawfully obtained, in violation of the rules laid down in the case of People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513.'
We are satisfied that respondent's contention that the doctrine of res judicata is applicable to the instant proceeding cannot be sustained and that the records of the municipal court are not germane to the issues presented on this appeal. While it is true, as urged by respondent, that the doctrine has been applied to criminal cases in this state, it was always under different circumstances (People v. Joseph, 153 Cal.App.2d 548, 551, 552, 314 P.2d 1004, and cases therein cited). In effect, respondent argues that after an accused is discharged at the preliminary examination, unless new and different evidence is offered before a grand jury or another committing magistrate, the decision of the magistrate becomes, as it were, the law of the case and is res judicata. The same contention was advanced in the case of People v. Joseph, supra, 153 Cal.App.2d at pages 550, 551, 314 P.2d at pages 1005, 1006, and rejected. The factual background present in the case just cited is strikingly similar to that in the case at bar and we are persuaded that the holding in that case is determinative of respondent's contention herein. In the Joseph case, supra, following the dismissal of two complaints filed against the accused, the same evidence was presented to the grand jury and an indictment was returned. In that case this court said (153 Cal.App.2d at page 551, 314 P.2d at page 1006): '* * * We are satisfied that the doctrine of res judicata applies to prevent the relitigation of issues determined by a final judgment in a prior action between the same parties. In the case now engaging our attention, however, appellant's argument for application of the doctrine of res judicata fails for two reasons. First, the orders of dismissal entered by the municipal court judges were not appealable (Pen.Code, secs. 1237, 1238). Secondly, in an unbroken line of decisions in this state it has been held that the results of proceedings prior to trial in criminal actions are not res judicata.' (Citing cases.) See also People v. Beltran, 94 Cal.App.2d 197, 202-205, 210 P.2d 238.
Respondent relies heavily upon the case of Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 441, 29 L.Ed. 684, which was a case involving a judgment of acquittal in a criminal prosecution for a violation of Internal Revenue laws, and the court held it was conclusive in favor of the defendant as claimant of the property involved in a subsequent suit in rem, when, as against him, the existence of the same act or fact involved in a criminal prosecution is in issue as a cause for the forfeiture of such property. That case, however, in our opinion, does not aid respondent, because therein it was held that, '(T)he judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, in bar, or as evidence, conclusive, between the same parties, upon the same matter directly in question in another court; and the judgment of a court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose. In the present case the court is the same court, and had jurisdiction, and the judgment was directly on the point now involved, and between the same parties.' (Emphasis added.) In the case here under consideration we do not have a prior judgment by a court of concurrent jurisdiction. As was said in People v. Brite, supra, 9 Cal.2d 666, 683, 684, 72 P.2d 122, 131: 'A justice of the peace, when acting as a court, is given the power of trying causes and rendering judgments of imprisonment upon conviction, but, when acting as a magistrate in the preliminary examination of a person accused by deposition of a public offense, he has no such power. The full limit of his power is, after examination, to hold the accused to answer at trial, unless from the examination it appears that no offense has been committed or there is not sufficient cause to believe the defendant guilty of a public offense, in which event the magistrate must order the accused discharged.' (Emphasis included.)
An examination of other cases cited by respondent reveals nothing in conflict with what we have herein stated.
The motion to augment the record is denied. The order from which this appeal was taken is reversed.
FOURT and LILLIE, JJ., concur. --------------- * Opinion vacated 341 P.2d 1.