Opinion
Cr. 3024
1-28-1955
The PEOPLE of the State of California, Plaintiff and Respondent, v. James TARANTINO and Rudolph Eichenbaum, Defendants, James Tarantino, Appellant.
Leo R. Friedman, San Francisco, for appellant. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., for respondent.
The PEOPLE of the State of California, Plaintiff and Respondent,
v.
James TARANTINO and Rudolph Eichenbaum, Defendants,
James Tarantino, Appellant.
Jan. 28, 1955.
Rehearing Denied Feb. 11, 1955.
Hearing Granted Feb. 24, 1955.
Leo R. Friedman, San Francisco, for appellant.
Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., for respondent.
BRAY, Justice.
Defendant and Rudolph Eichenbaum were indicted on four counts (1) conspiracy to commit extortion (violation of Penal Code, § 182); (2) extortion of $200 from Paul Vlasoff; (3) extortion of $50 from John Rourke; (4) extortion of $500 from Leslie Armstrong (the last three counts charged a violation of Penal Code, § 518). After a trial lasting approximately three months a jury convicted both defendants on all four counts. From the judgment and an order denying new trial, defendant Tarantino alone appeals.
Questions Presented.
1. Those arising from the use of tape recordings made in defendant's room without his knowledge: (a) admissibility; (b) alleged denial to defendant of reasonable opportunity to study recordings and transcriptions. 2. Alleged errors in admission of evidence: (a) did cross-examination of defendant extend beyond provisions of Penal Code, § 1323? (b) two hundred plus issues of Hollywood Life Magazine (i) admission, (ii) presence in jury room; (c) evidence admitted solely against defendant Eichenbaum; (d) evidence of similar offenses; (e) replaying of recordings after case submitted to jury. 3. Alleged insufficiency of evidence as to counts 3 and 4, 4. Were the verdicts coerced? 5. Refusal of an instruction.
Recordings.
Defendant, an unmarried man, resided and had his office in a room at the Bellevue Hotel. He was editor and publisher of a weekly magazine, 'Hollywood Life.' He was what is commonly known as a news commentator and gossip columnist. Every Sunday evening he made a 15 minute radio broadcast over radio station KYA. His codefendant Eichenbaum owned two bars or taverns known as 'Gilbey's' and 'Gotham' which defendant frequented. The theory of the prosecution was and the evidence proved that Tarantino and Eichenbaum conspired to extort money from individuals, mainly by threatening to expose in Hollywood Life or in a radio broadcast, or both, crimes or secrets involving such individuals.
In December, 1951, the San Francisco Police caused a microphone to be installed in defendant's room with wires running to an apartment nearby where a tape recording machine recorded conversations in the room from about 10 a. m. until the following 2 a. m. daily intermittently for a period of over 14 months. The officers monitoring the machine would listen to the voices coming over the wires from defendant's room, and would record such conversations, or portions thereof, which they considered material to their investigation. Some 200 reels of recording were made. While 42 reels were introduced in evidence, only about 60 extracts therefrom were played to the jury. These extracts were made by plaintiff prior to trial by having the recording or portions thereof played, and a listener would dictate therefrom to a stenographer. If any part were unintelligible a conference would be had by two or more police officers or deputy district attorneys and it would be decided what had been said. After transcription, the transcript would be compared again with the recording, corrections made, and then a conference would be held as to what portion should be eliminated from the transcription. The transcript would be rewritten deleting such parts as had been decided should be omitted. At the trial a witness would testify that at a certain time he was monitoring the machine, had heard a certain conversation which was recorded, had compared the transcription thereof with the recording and it was true and correct, and conformed to the conversation he had heard over the microphone on the particular occasion. This was the method used in People v. Jackson, 125 Cal.App.2d 776, 271 P.2d 196. Then he would read to the jury the transcription. Subsequently, some of the recordings were played in open court while each juror was given a copy of the transcription to compare with the recording as played. The method of use of the recordings, and the method of testifying with the aid of transcripts, were substantially those approved in People v. Sica, 112 Cal.App.2d 574, 586-588, 247 P.2d 72. See also People v. Kulwin, 102 Cal.App.2d 104, 226 P.2d 672.
The Evidence.--Rourke Case.
John W. Rourke testified that he had two cigar and liquor stores, selling cigars, cigarettes, novelties, souvenirs, magazines, liquor and art pictures. He did business under the name of Johnny O'Rourke. On August 31, 1952, he heard defendant's radio program. Rourke then looked in Hollywood Life to see who was advertising in it who might intercede for him with defendant. He found a Mr. Gene Werner. He talked to Werner. Later Werner told him that defendant had said that Rourke was not handling defendant's publication. Rourke said he would sell the magazine and the next day copies of Hollywood Life were delivered to his stores. Through Werner, Rourke met Eichenbaum, who said that Rourke was getting away with murder in selling 'those art pictures' and in running dice games wide open. Rourke asked what could be done about the publicity he was getting. Eichenbaum then said that defendant wanted Rourke to handle Hollywood Life and take an ad in it for $100. Rourke asked Eichenbaum to call up defendant and tell him to get off Rourke's back. Eichenbaum talked on the phone to some one, telling Rourke it was defendant. Eichenbaum told the person that Rourke had agreed to handle his publication and take a $50 ad. Rourke, besides agreeing to the ad, gave Eichenbaum $100. Eichenbaum then said that it was a good thing Rourke got in touch with 'us' that day or 'We would have really blasted you tomorrow.' Eichenbaum made the ad contract retroactive to include the previous as well as the present month. Eichenbaum had defendant come down to the Gotham bar to meet Rourke. Defendant stated that he was glad everything was straightened out. Rourke told Richenbaum he would take a blood bank ad as he did not think it would be a good idea for his name to appear in the magazine following the blast. Thereafter he received monthly bills of $50 for the ad.
Defendant testified that on the Saturday following his broadcast referring to Rourke's place Eichenbaum phoned him but did not say that Rourke had agreed to take an ad for $50 and to handle his magazine. Eichenbaum did say that Rourke wanted to put an ad in Hollywood Life, but nothing was said about price. Defendant did not tell Eichenbaum that he was going to blast Rourke or his place of business again. While defendant admits going to the Gotham bar at Eichenbaum's request and meeting Rourke there, he denied the material parts of the conversation as related by Rourke.
Armstrong Case.
Leslie Armstrong and his wife Peggy had a police record for many misdemeanors. He owns a tavern and restaurant on Post Street. He also owns property at 1869 Sutter. He had known Eichenbaum for 6 or 7 years and had met defendant in 1948 or 1949, at which time defendant was a customer of his. At one time Armstrong had an ad appearing in Hollywood Life for a period of 3 or 4 months. September 4, 1952, a recording of a portion of a conversation between defendant and one Bennie Barrish contained the following: "You see, Jimmy, I give him his last chance only he didn't accept yet, but he's gotta come up. Lookit with Peggy Armstrong and all of 'em.' And Tarantino replied: 'Yeah.' And Mr. Barrish said: 'She can't afford to be closed.' And Tarantino said: 'That's right.' And Mr. Barrish said: 'And she can't squawk. It's good business." September 7th, defendant broadcast 'Attention vice squad members,' that he had 'just received two letters and two reports of open prostitution at * * * 1869 Sutter Street * * *' The next day Peggy informed Leslie of this broadcast. Two tenants at that address left. Leslie phoned Eichenbaum to meet him as he wanted Eichenbaum to do a favor for him. He had seen defendant and Eichenbaum together on several occasions. Meeting Eichenbaum at the Gotham Bar, he asked what was wrong with defendant, stating that he had never had trouble with him and asked if there was anything Eichenbaum could do about it. Eichenbaum said he would phone defendant. In Leslie's presence Eichenbaum used the phone, stating to the person answering that he had a friend who owned the property at 1869 Sutter who said he wanted to do something about these broadcasts. Eichenbaum asked 'How many fingers have you got on your right hand?' Eichenbaum then said 'Five.' Eichenbaum continued to converse with the man on the phone about their going to Palm Springs that evening. Eichenbaum hung up the phone, turned to Leslie and said, 'I think we can get it straight for five hundred dollars.' Leslie left to get the money, Eichenbaum telling him to hurry back. Returning, Leslie gave Eichenbaum $500. To Leslie's knowledge 1869 Sutter was never mentioned again on the broadcast. Leslie paid the $500 because of the publicity as he thought the only way he could stop it 'was to go to someone that could stop' defendant. September 10th a phone conversation was recorded between Eichenbaum and defendant in which Eichenbaum mentioned Les Armstrong and then about getting $500 from 'him' and stating that when 'we need some money sometime, we will march around and I will get another five hundred' and then said 'Scratch this 1869 Sutter off the list.' A little later that evening there was another phone conversation between Eichenbaum and defendant concerning their going to Palm Springs together that evening.
Defendant denied having any conversations with Eichenbaum or Armstrong as testified to by the latter, or receiving any money purporting to come from Armstrong. Defendant claimed that the recorded 'five finger' conversation was with one Brenna and not with Eichenbaum and that the reference to the figure was to how many persons were going to Palm Springs with them.
Vlasoff Case.
Vlasoff was a bar operator with a record of misdemeanors. He knew Eichenbaum and defendant since 1950. That year he was operating a bar known as the Club Continental. Some time in March Eichenbaum told Vlasoff that because he was operating his bar after the legal closing hour, Vlasoff would have to pay him $200 each month to be able to continue doing so. Vlasoff made one payment. In April Eichenbaum raised the amount to $300 per month which Vlasoff paid until the first part of 1951. In February, 1951, Vlasoff was notified by the State Board of Equalization of an infraction of the liquor law. Vlasoff showed the notice to Eichenbaum who said he could straighten it out for $500. Vlasoff paid him. Vlasoff received from the board a notice of indefinite postponement. In a conversation in June with Eichenbaum the latter told him to put an ad in the Hollywood Life Four Year Book about to be issued. Vlasoff said he did not care to advertise his place in defendant's magazine. Eichenbaum suggested that instead he put in a blood bank ad. Vlasoff agreed and gave $25 for the ad to Jimmy Jaye who was present with Eichenbaum. In 1951 Vlasoff was operating. In July or August Eichenbaum told Vlasoff that defendant was 'awfully mad' at him and the next day would blast him on the air, and suggested that Vlasoff talk to defendant and straighten it out. Eichenbaum then dialed defendant's private phone number, and Vlasoff talked to defendant. Defendant was 'real mad' at Vlasoff, saying that the latter was getting away with murder, booking horses, and a crap game, and was 'popping off' about defendant and that defendant would blast him the next day. Vlasoff asked what he could do to make up and not be blasted the next day. Defendant told him to talk to Eichenbaum. Eichenbaum took the phone and talked with defendant. Eichenbaum then told Vlasoff that he thought he had it all fixed up. 'We'll chop my fingers off, and he won't blast you.' Eichenbaum explained this meant that Vlasoff should pay five $100 bills and defendant would forget the incident and not bother Vlasoff. Vlasoff said he could not pay that much. Eichenbaum said he would talk to defendant although he did not think he would go for less. A few minutes later Eichenbaum returned and asked what was the best Vlasoff could do. Vlasoff said $200. Eichenbaum said that Vlasoff would have to put in an ad, and the thought defendant would accept $200. Vlasoff said he did not want to advertise the card room 'or the book.' Eichenbaum said to put in an ad for the Club Continental. Vlasoff agreed to put in the ad at $50 per month. Eichenbaum's and defendant's conversations with Vlasoff constituted the first and second overt acts charged in the first count. Apparently the $200 was paid the next Monday, but, although billed for the ad for a couple of months Vlasoff did not pay for it. Vlasoff was indicted on two felony charges. Thereafter he appeared before the Grand Jury testifying against defendant. Six days thereafter the indictment was amended to 'gambling, or something like that, some simple thing.' To this he pleaded guilty and was given a six months suspended sentence. It did not occur to Vlasoff that there was any connection between the charge against him and his appearing before the Grand Jury. Eichenbaum from time to time had loaned Vlasoff money. He admitted signing two promissory notes to Eichenbaum, one for $1,100, the other for $300.
Defendant denied that the conversation between him and Vlasoff as testified by the latter over took place. Defendant also denied any conversation with Eichenbaum about Vlasoff or in which chopping off 'my' fingers was mentioned, or concerning any of the matters testified to by Vlasoff.
Similar Offenses.
(a) Davis.
Ted Davis was a partner and manager of the Silver Rail bar. It was a 'gay bar,' that is, one catering to homosexuals. Defendant visited the bar and asked Davis to take an ad at $100 per month in his magazine, saying that it would do Davis a lot of good and that then defendant would let Davis and his bar alone. Davis took such ad for a period of five months, at the end of which time he sold his interest in the bar. Davis took the ad because defendant was a broadcaster and publisher of Hollywood Life and Davis did not want defendant to blast the bar on the air or put anything in the magazine about the homosexual bar.
(b) Action Sales.
On June 22, 1952, defendant broadcast 'Attention Better Business Bureau and the Chamber of Commerce,' that he had received four complaints against stores on Market between Fifth and Eights Streets holding 'action' sales as misrepresenting merchandise and prices and that 'this new action sale gimmick does require immediate investigation.' (The third overt act charged in the conspiracy count.)
Harold Cossman and Theodore Cossman operate two jewelry stores, Lords and Mayfair, both between Fifth and Sixth Streets. Both stores conducted 'action' sales during June, 1952. Harold Cossman contacted one Bennie Barrish, who he knew was acquainted with defendant. Barrish went to see Cossman at Lords Jewelers. Cossman told Barrish about the broadcast, asked him to contact defendant and tell him they were not doing anything illegal. Barrish said he would try to contact defendant and find out about it. A few days later Barrish returned and told him defendant would take Cossman's word for it and forget about the letters of complaint, and there would be no more broadcasts. Barrish, in turn, said he was soliciting books for veterans and asked Cossman to purchase copies of the anniversary issue of Hollywood Life. Cossman gave Barrish a $200 check in payment for the magazines. Cossman gave Barrish the check for $200 in order to prevent adverse publicity from appearing in Hollywood Life magazine.
In September, 1952, one Al Sigle visited Lords Jewelers and talked with Drew, an employee of the Cossmans. Sigle said, 'my boss is going to close you guys up next month, you know.' Drew told the Cossmans and Drew got in touch with Barrish that same evening at the Trocadero. Drew asked Barrish to speak to defendant about what Sigle had threatened. (Prior to this time Sigle had tried to sell ads to the Cossmans, but they would not buy.) Several days after the conversation between Drew and Barrish, Sigle came around again, and Cossman told him he would like to speak to defendant personally. Cossman met defendant at Ferrari's in the presence of Ted Cossman and Sigle. Cossman explained to defendant that they were running an honest business, but defendant pointed out that he still had the letters of complaint. Cossman agreed to take some kind of ad. Sigle returned the following morning and Cossman gave him an ad for $25 per month. Thereafter, Cossman continued the ad.
Charles Maroosis and Louis Hirsch were copartners in a jewelry business known as the Tower of Jewels, located at Market near Sixth. During June, 1952, they conducted 'action' sales. Shortly after June 22, 1952, Hirsch was informed about defendant's broadcast and discussed its effect with Maroosis. Hirsch then called Bennie Barrish, who he knew to be a friend of defendant's. Hirsch asked Barrish if he could do anything about stopping defendant's broadcasts. A few days later Barrish returned and told Hirsch that if he and Maroosis bought 100 year books to be sent to veteran's hospitals, defendant would stop the broadcasts. Hirsch gave Barrish a check for $100 to pay for the 100 books. His motive was to have the broadcasts stopped. On June 27, 1952, a conversation between Barrish and defendant was picked up by microphone in defendant's hotel room. Defendant suggested to Barrish that Maroosis be talked into buying 200 year books to be given veterans. That same evening the same two were detected in a second conversation during which Barrish told defendant, 'I made 'em give me a check first.' In the course of this conversation the name Maroosis was mentioned.
(c) Other evidence regarding similar cases:
Blast over the radio concerning stripteases in several clubs in the International Settlement; recorded conversation between Barrish and defendant about getting $1,000 from one Dorothy Ryan, apparently a prostitute; a telephone discussion regarding getting money from the owner of the Domino Club on October 28, 1954; a telephone conversation of October 30, 1954, in which the claimed improper marriage of one Charley Anderson (of the Domino Club) is discussed; threat of forcing Yellow Cab to take an ad; evidence of shakedowns of unidentified establishments.
In addition to the above, certain evidence was admitted against Eichenbaum only. One Tommy Vasu, a woman, testified that in the year 1949 she managed a hotel and bar at 299 Broadway; that she received a notice of suspension from the State Board of Equalization and that she talked to a friend of hers, Jack Ehrlich, as to what could be done; that Ehrlich told her he had spoken to some one and that if she gave him $1,000 and $300 a month in the future, she could stay in business. A couple of weeks later Eichenbaum and another man came into her place of business and said to her, 'So, you don't want to pay three hundred a month?' that she started to pick up the telephone; that it was knocked out of her hand and pulled off the wall by Eichenbaum and that she got hit several times. Eichenbaum denied the story and Jack Ehrlich likewise denied it.
State witnesses Joseph Harvey and Jack Flanagan testified that they operated the Paramount Tavern in 1951; that in July, 1951, Eichenbaum and another man came in, and the other man showed a badge and said he was from the State Board. Eichenbaum told Flanagan that he would have to pay off $50 a month to keep the place open. They paid $50 to the other man.
1. Issues Arising from the Tape Recordings.
(a) Admissibility.
Defendant contends that defendant's constitutional rights were infringed by the installation of a dictaphone in his room and the use of recordings of his conversations, and that as this evidence was illegally obtained it was inadmissible. He cites Irvine v. People of State of California, 1954, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561, in which the United States Supreme Court in effect invited reconsideration of the rule in a number of states, including California, that competent evidence is admissible no matter how obtained. See People v. Mayen, 188 Cal. 237, 205 P. 435, 24 A.L.R. 1383, so holding. In People v. Perez, 128 Cal.App.2d 750, 276 P.2d 72, we pointed out that we, as an intermediate court, are bound by the rule of the Mayen case. That still holds true.
(b) Was defendant denied reasonable opportunity to study recordings and to receive copy of transcriptions?
Some 200 reels of recordings were made by the officers. Forty-two reels were admitted in evidence from which only about 60 extracts were read into evidence. Portions of seven reels were played and heard by the jury. (These portions are included in the above mentioned 60 extracts.) Early in the trial it appeared that transcripts of the recordings of the conversations heard over the distaphone had been written up. Then under the supervision of the district attorney portions were eliminated which were not considered germane to the case, and a transcript so modified rewritten. Defendant requested a copy. The court stated that defendant was entitled to it and the district attorney promised to give it to defendant. Apparently the request and the promise referred merely to transcripts of those conversations, any portion of which had been introduced in evidence and not to transcripts of all reels. About the middle of the trial when asked for the transcript the district attorney stated that no more than three days after making this 'improvident, inadvertent promise' he had informed defendant he could not provide the transcripts, that it was a 'hopeless job' in the time that was available to get them out; that, however, plaintiff would at any time specified by counsel, play the recordings, or allow them to be played by counsel. While further requests were made for the transcripts, including transcripts of the 200 reels, the court was not asked to order their production. Early in the trial plaintiff stated that the reels were available to counsel. At that time defense counsel stated that he had no curiosity concerning them. The court then asked the district attorney if he would have the recordings available 'in case counsel wants it?' The district attorney stated he would. On October 2nd when the witness Kind was testifying to a portion of a recorded conversation the district attorney stated: 'The whole recording will be available to you and if anything is left out that you consider should be in, we will consider it' and that if counsel desired it they could listen to the entire 500 hours of recordings. At this time the reel containing the conversation was in court marked for identification. After plaintiff's witnesses had testified to recorded conversations a discussion arose between court and counsel, in which the court stated that the tape recordings were there for defendant's inspection. Defense counsel then stated that he had listened to three 'of these so-called tape recordings of conversations' and then asked that the recording of the conversation as to which the witness was testifying be produced and that a continuance, 'probably a week,' be granted to give defendant a chance to examine the recording, before the witness testified further concerning the conversation. Again, the district attorney stated that the recordings were available at any time. The court denied the request 'now' but stated in effect that if any parts of the conversation pertinent to the case were left out they could be placed in evidence. Again, during the examination of the same witness defendant renewed his objections to the admission of the conversation until defendant had an opportunity 'of becoming conversant with what is on these tapes * * *' The court said, 'Same ruling. You are going to be conversant with it.' On Friday, October 9th, defendant asked the court for a 60 day continuance of the trial to enable counsel to examine and play the 31 reels which included all the conversations testified to up to that time. The court then stated that the request for a continuance of two months raised the very practical question that in two months the jury might have forgotten much of the testimony it had already heard. The district attorney stated that the reels would be available to counsel 'At any time, day or night, week-ends or holidays,' but that there would have to be some one designated by plaintiff present at all times. The district attorney then pointed out that there were 'three holidays coming up, Saturday, Sunday and Monday' and suggested that defendants start their auditor listening, and that by Tuesday morning defendants would know how many more reels they wanted to hear. He further suggested that any action on the motion for continuance be deferred until Tuesday. Defense counsel stated they would not work on holidays. The following then occurred: 'The reel, an offer has been made that you hear--Mr. Friedman [defense counsel]: I reject the offer that was made. The Court: All right, then, it is rejected.' This occurred on the eleventh day of the trial (excluding days spent in selecting the jury). The actual trial exclusive of time of selection of jurors and of argument took 38 days. Later the same day defendant objected to any further testimony based on the recordings until defendant had an opportunity to hear them. Then ensued a discussion in which the court stated that defense counsel had refused the opportunity to hear them over the week end, and that defendant's request for 60 days was unreasonable. Defendant then stated he would modify his request and asked for a 'reasonable time.' The court then said: 'If these recordings are to be played they will have to be played repeatedly in your personal hearing, and if not on Sundays and holidays, this case would have to be continued six to nine months,' and suggested that defense counsel could get some one to audit the reels for them. The court said: 'I suggest you try some reels between now and the next time the Court convenes, and I suspect it will be quite an ordeal for you to listen to these recordings personally over a period of months. However, I will take the motion for a continuance under submission.' On the 22nd day of the taking of evidence, the defendant had been playing some of the recordings before the jury. The district attorney stated that he had been informed that defendant Eichenbaum's counsel intended playing all of the 200 recordings and then moved that before any more were played defendant point out their relevancy. He pointed out that the portions of the recordings offered by plaintiff were admitted as containing admissions against interest, that 95 per cent of the whole recordings had nothing to do with the case and would be inadmissible for that reason, and further would be nothing but self-serving declarations. The district attorney then stated, 'Counsel have had an unlimited opportunity to hear these recordings played.' The court then stated that it would not permit all 200 recordings to be played before the jury. 'You had opportunity to test the relevancy of what has been played, and I don't think the jurors should be subjected to just an indiscriminate audition of records which, as far as you and their associate counsel or other defense counsel are concerned, if you don't know what is in them, whether there is no relevancy or whether there is, I don't think that you or the jury should be subjected to what I call and would call 200 records and 200 tapes, a rather brutal experience.' Defense counsel agreed that it would not be right to require the jury to listen to the recordings and stated that he had previously moved for a continuance for a reasonable time to enable him to hear them, and that he should be permitted to hear them out of the presence of the jury. The court stated: 'There are ways in which you can.' The district attorney then stated: 'There have been many week-ends and holidays; since that time we offered then and we have offered twice since then to play these recordings at any time that counsel might designate, at any place they might designate, any hour of the day or any week-ends or holidays notwithstanding, and he has had a full opportunity. The Court: And that offer was peremptorily rejected. Mr. Friedman: It was rejected and it will be rejected again if made under the same terms and conditions. There is other things to be done in this trial besides using the evenings and Saturdays and Sundays in listening to the recordings.' Further discussion followed as to playing all the recordings before the jury. Then the court said: 'Now, we have, on our own time, I mean yours and mine and counsel, and not the jurors, can't we hear these recordings? I am available at any time out of the presence of the jury, and determine whether there is any relevancy or whether there isn't. Without having the jury subjected, and it is no reflection so far, to hearing a lot of recordings which may or may not have anything to do with the issues on trial.' Without replying to this defense counsel asked that the recordings of four specified days be played. (They were later.) Nothing further was said at this time concerning playing the recordings out of court. Some discussion was had concerning the previous refusal of the district attorney to give defendant copies of the transcripts of the recordings which ended when Eichenbaum's counsel stated that 'the law doesn't compel it * * *' Later the same day the court stated that the jury could hear the rest of the recording then being played and then court would adjourn. 'Now, we can hear the rest of this; I will be available from eight o'clock in the morning on--from now until as long as you can stand it, but these recordings are going to be played out of the presence of the jury, and you can decide what you consider appropriate and what you do not. * * * Well, first, and at the very start, I was available at all times outside the court to listen to these recordings with counsel. We did listen once or twice and over a period of eight weeks there was a great opportunity to listen to records out of the presence of the jury.' Discussion then occurred concerning whether the jury should hear the rest of the recording which was then being played or merely the conversations which had theretofore been introduced into evidence. In discussing this question the court said: 'Don't you think we could save time by hearing them privately?' Defense counsel thought not and stated that the recordings of September 14th and 21st were 'all I ask.' The court permitted these to be played.
On the 28th day, the court again stated that no more recordings would be played unless 'outside of the presence of the jury.' Defendant then asked for the transcriptions and for an opportunity to play the recordings. The district attorney stated: 'For almost two months the prosecution has made every recording in this case available to Mr. McGovern [Eichenbaum's counsel]. He hasn't deemed it necessary to listen to any of them.' The court then requested plaintiff to turn over the transcriptions, stating it could not compel plaintiff to do so. It also pointed out that to spare the jury from listening to records which might have nothing to do with the case, the records would have to be played out of the presence of the jury. Defendant then asked for a 30 day recess to hear the records played but indicated he would be willing to take less time. The court stated, 'We did have a recess of a week and nothing was done in that respect.' The district attorney then stated that in the almost two months of the trial defendant had week ends, holidays, evenings and ten days of recess during all of which time the records were available, that two of the three alternate jurors selected for the trial were now in the jury box, and that delays might cause a situation in which there might no longer be twelve jurors available. A discussion was then had about the transcriptions in which the court agreed that it had not ruled that defendant was not entitled to see them but that the court had no authority to compel their production.
Defendant had theretofore conceded that the court had no power to order the production of the transcripts and at this time seemed to acquiesce in the court's statement. People v. Stevenson, 103 Cal.App. 82, 284 P. 487, cited by defendant to support his present contention that he was entitled to a transcript of all the recordings does not support it. The Stevenson case dealt with the refusal of the district attorney to allow defendant to see the transcript of testimony before the grand jury which the prosecution had used in the examination of certain witnesses. 'The district attorney had exhibited portions of the transcript to several of the people's witnesses and also to the defendant himself during his cross-examination, and had questioned them concerning statements shown therein to have been made by them at the grand jury investigation, and had read excerpts from the testimony in the transcript into the record.' 103 Cal.App. at page 88, 284 P. at page 490. This situation was entirely different from that in the instant case.
The next mention of the playing of the recordings occurred on the 31st day of the trial when the district attorney in the cross-examination of Eichenbaum wanted to play five lines of tape. Mr. McGovern called attention to the court's previous ruling that no more recordings were to be played before the jury and objected to this portion being played. The court sustained the objection. Later in the cross-examination of defendant, certain portions of the recordings were played by the district attorney to get defendant's explanation of their contents.
Was defendant deprived of a fair trial by the court's refusal to order plaintiff to give defendant copies of plaintiff's transcriptions of the recordings, to give continuances to enable defendant to play the recordings out of court and to permit the playing of additional recordings before the jury? Certainly the court did not abuse its discretion or deny defendant a fair trial, in refusing to permit the playing of recordings of conversations and occurrences which had nothing to do with the matters on trial. Recordings of relevant conversations were played. But the court found after one or two whole reels were played to the jury that the reels related to matters which were not relevant to the case. A reel took two hours and 20 minutes to play. In many instances it was difficult if not impossible to understand what was being said. To require the jury to sit through day after day of listening to immaterial matters would have unduly prolonged the case and would have been punishment on the jury. Moreover, listening day after day to a continuance of the filthy language used by defendant as shown by the conversations in evidence, would have injured more than helped defendant. The court properly ruled that only relevant parts of the reels could be played.
As to the transcriptions, we know of no rule of law which requires the prosecution to give its trial notes to the defendant. Plaintiff gave defendant copies of the transcriptions of all conversations either testified to or played in evidence by plaintiff. The transcriptions which plaintiff refused to give were those made of conversations at other times in defendant's room. As such they constituted plaintiff's trial notes. While under the circumstances of this case, in view of the fact that plaintiff first promised them to defendant, it would have been better to give them to defendant, plaintiff was under no legal compulsion to do so. After all, and this applies to the recordings as well as the transcripts, the plaintiff was offering primarily the testimony of live witnesses who testified to the particular conversation. The recordings were offered to show the accuracy of the testimony. Take the ordinary trial situation. A witness is called by the prosecution to relate a certain conversation which the witness overheard defendant engage in and in which the prosecution claims admissions against interest were made. Defendant would not be entitled to notes taken by the prosecution out of court of the witness' version of other conversations in which the witness claims the defendant engaged, but concerning which the witness did not testify. That is the situation here.
As to the recordings, there can be no question but that once the plaintiff offered any portion of a conversation, defendant was entitled to hear the recording of the entire conversation. In several instances that was done here, the entire conversation being played for the jury (excerpts from seven reels). At no time when a conversation was testified to, and defendant asked that the recording of that conversation be played to determine if the whole of the conversation were given, and given correctly, was there an instance when it was not played. Defendant's complaint is that he was not given the opportunity to hear the rest of the recordings taken the same day and subsequent days, most of which had no bearing on the case. But at no time was he refused the right to hear all the recordings. Time after time it was stated by both the prosecution and the court that defendant was entitled to hear them. The question of whether he was denied the opportunity to hear them depends upon the solution of the question as to whether the defendant had a right to a recess during trial to hear the recordings or whether he should have heard them after hours during the progress of the trial. In determining this question, we must bear in mind what the reels contained. As pointed out above, plaintiff played all conversations which it considered relevant and defendant had the opportunity of determining whether the whole of such conversation was played. But defendant wanted to hear all the rest of all the reels to determine if in some other conversation something was said which might be favorable to defendant; in other words, whether there was some other conversation in which defendant engaged which might be self-serving. Defendant argues that he could not know if there were other matters in the reels favorable to him or explanatory of the parts introduced by plaintiff. Why would he not know? After all, he was the person doing the talking on them. True, he might forget the details of a particular conversation, due to the passage of time, but he would remember generally about the conversations and whether or not their subject matter might be favorable to him.
Time after time defendant was told that he ought to start listening to the records between court sessions and on week ends and holidays. But defendant refused to even start unless he was given a continuance. This case, as it was, lasted from September 22nd to December 18th, practically three months. The record indicates that defendant's strategy was to use the request to hear the recordings as an excuse for protracting the trial. In the trial of any important action the parties must expect considerable 'burning of the midnight oil.' Realistically speaking, it is doubtful if counsel who were trying the case would have listened to the reels themselves had a continuance been granted. They would have had some one of their staff do it for them. As pointed out by the court, they could have had that done while they were going on with the trial. In any event, we can see no reason why some part of the time, after court sessions and on week ends, could not have been used and a start at hearing the recordings could not have been made. Had a reasonable portion of such time been consumed and found insufficient a refusal of an application for further time might have caused a far different situation. In view of the fact that practically all, if not all, of the matters which defendant claimed to desire to listen to would have been immaterial and irrelevant; the fact that defendant himself would know most of what other conversations he engaged in, and if favorable and admissible, could have asked for the recordings of that day; and the fact that defendant refused to even devote a part of out-of-court time to the matter, plus all of the other circumstances of the case, we cannot say that the court refused defendant a reasonable opportunity to study the reels nor that by the court's action in this respect, defendant was denied a fair trial.
2. Admission of Evidence.
(a) Cross-Examination of Defendant.
Very carefully defendant attempted to limit his direct examination to the circumstances dealing with the Vlasoff, O'Rourke and Armstrong matters and to those dealing with the circumstances under which Vlasoff received $700 from defendant for repudiating his testimony before the grand jury.
Plaintiff opened defendant's cross-examination by asking him concerning a conversation with one Anderson, the recording of which plaintiff played and which indicated defendant was threatening Anderson for purposes of extortion. Then followed questions concerning other purported extortions, generally admissible under the 'other crimes' rule hereafter discussed. Defendant contends that this cross-examination extended beyond the scope of that permitted by section 1323, Penal Code which provides that a defendant may be cross-examined 'as to all matters about which he was examined in chief.' The extent of cross-examination of a defendant who takes the stand has been greatly broadened in recent years. The latest case on the subject is People v. Zerillo, 36 Cal.2d 222, 223 P.2d 223, in which is cited many cases supporting its ruling. There the defendant was charged with offering a bribe to a food inspector, to secure the passing of impure tomato paste. The defendant denied offering the bribe. On cross-examination the defendant was asked about his knowledge of chemist's reports and certain letters. The defendant contended this exceeded the scope of the direct examination. In holding that the cross-examination was properly permitted, the court said that the language above quoted from section 1323 does not mean 'that the cross-examination must be confined to a mere categorical review of the matters, dates or times mentioned in the direct examination. See People v. Wilson, 25 Cal.2d 341, 351, 153 P.2d 720; People v. King, 13 Cal.2d 521, 527, 90 P.2d 291; People v. Mammilato, 168 Cal. 207, 213-214, 142 P. 58; People v. Buckley, 143 Cal. 375, 388-389, 77 P. 169; People v. Teshara, 141 Cal. 633, 638, 75 P. 338; People v. Dole, 122 Cal. 486, 491, 55 P. 581 . It may be directed to the eliciting of any matter which may tend to overcome or qualify the effect of the testimony given by him on his direct examination. People v. Kynette, 15 Cal.2d 731, 753, 104 P.2d 794; People v. Creeks, 170 Cal. 368, 379, 149 P. 821; People v. Buckley, 143 Cal. 375, 388-389, 77 P. 169. * * * If a defendant takes the stand and makes a general denial of the crime with which he is charged the permissible scope of cross-examination is very wide. See People v. Gallagher, 100 Cal. 466, 473-476, 35 P. 80; People v. Creeks, 170 Cal. 368, 378-380, 149 P. 821. Moreover, as stated in People v. Teshara, 141 Cal. 633, 638, 75 P. 338, 340, 'A defendant cannot, by testifying to a state of things contrary to and inconsistent with the evidence of the prosecution, thus indirectly denying the testimony against him, but without testifying expressly with relation to the same facts, limit the cross-examination to the precise facts concerning which he testifies. He can be cross-examined with respect to facts or denials which are necessarily implied from the testimony-in-chief as well as with respect to facts which he expressly states.' See also People v. Mayen, 188 Cal. 237, 257-258, 205 P. 435 ; 13 Cal.L.Rev. 384-387. Language to the contrary in People v. Arrighini, 122 Cal. 121, 127, 54 P. 591, must be deemed to have been impliedly overruled by later cases.' 36 Cal.2d at pages 228-229, 223 P.2d at page 227.
The decision in People v. McCarthy, 88 Cal.App.2d 883, 200 P.2d 69, cited by defendant, is based largely upon the Arrighini case and People v. O'Brien, 96 Cal. 171, 31 P. 45, upon which the Arrighini case is based. As the Zerillo case expressly disapproves the Arrighini case, the O'Brien case would necessarily be likewise disapproved, as well as the McCarthy case.
In our case defendant on direct examination not only denied any acts of extortion, or conspiracy to extort, from Vlasoff, Rourke or Armstrong, but stated, in effect, that it was his practice to use his broadcasts and Hollywood Life to bring violations of the law to the attention of the police or the Board of Equalization and not for extortion purposes. Again he stated in effect that when he learned there was prostitution going on he 'held nothing back' but gave names on his broadcasts. He testified that Brenna, one of the men who appeared from the recorded conversations to be a collector of extortion money for defendant, was merely a 'friendly informer' who brought him information. The situation here was similar to that in People v. Kynette, 15 Cal.2d 731, 104 P.2d 794, where Kynette, as did defendant here, opened the door by his statements on direct examination that he acted purely from laudable motives. '* * * in an effort to refute the theory underlying the prosecution, Kynette on his direct examination attempted to establish, in effect, that the surveillance of Raymond was in the performance of legitimate police activity and that the function and activities of the intelligence unit were confined to legitimate police work. Under the circumstances, there was no error in the rulings of the court below which permitted the prosecution on cross-examination to interrogate the witness concerning other activities of the intelligence unit, of which he was in command, with respect to persons who apparently had been hostile to the city administration. The district attorney clearly declared the purpose of such cross-examination, which unquestionably was related to the direct examination and to Kynette's knowledge of the purpose and activities of the intelligence unit.' 15 Cal.2d at page 752, 104 P.2d at page 805.
As said in People v. Zerillo, supra, 36 Cal.2d 222, at page 229, 223 P.2d 223, at page 228, this type of testimony was 'equivalent to a general denial of the crime charged and opened the door for examination as to his intent and motives.'
(b) Issues of Hollywood Life.
(i) Admissibility.
Five volumes, covering most of the weekly issues from 1949 through 1952 (approximately 200) were found in defendant's room at the time of his arrest, and offered in evidence. Defendant's only objection then was that there was no showing that defendant edited them or wrote the articles in them. As the evidence already showed that defendant was the publisher, the objection was properly overruled. Later, defendant moved that the court set aside the admission of the five volumes and that only such portions be admitted as either side might from time to time offer. One issue dealing with the Vasu incident (the beating of a woman by Eichenbaum) and an attack on San Francisco's mayor and the editor of the Examiner, was eliminated by the court, but otherwise the motion was denied. The issues were admissible. They contained defendant's comments or columns, the blood bank ads giving no names of sponsors, and were one of the means used by defendant to extort money. The fact that they contained articles by defendant and others attacking certain police officers, the San Francisco Police Department and others, did not prevent their admission. They were competent evidence to show that the magazine was an instrumentality used by defendant to 'blast' people.
(ii) Hollywood Life in the Jury Room.
After the jury had been out about a half an hour, the foreman sent word to the court asking if the jury might have the Hollywood Life issues. Thereupon the court ordered the five volumes to be sent into the jury room, where they remained until the end of the jury's deliberations. 'The jury is a constitutional part of the court and they are privileged to take all or any of the exhibits with them.' People v. Horowitz, 70 Cal.App.2d 675, 704, 161 P.2d 833, 849. Being in evidence the jury was entitled to see them. Concededly they did defendant no good, but neither did any of defendant's other actions evidencing his extortion methods. There was no error in this action.
(c) Evidence Solely Against Defendant Eichenbaum.
This consisted of testimony to the effect that Eichenbaum and another (not defendant) came to Tommy Vasu's place and physically beat her because she would not pay $300 per month to keep in operation; testimony to the effect that Eichenbaum threatened Harvey and Flanagan to have their saloon closed if they did not pay $50 per month; testimony of Vlasoff concerning a payment to Eichenbaum of protection money and testimony of Armstrong concerning a certain conversation with Eichenbaum. At the time of the admission of each incident the court sustained defendant's objection to its introduction against him and strongly admonished the jury that it was admitted solely against the codefendant. Typical of these admonitions is the following: 'First, I admonish the jury, and this is a very important admonition, ladies and gentlemen, that all this conversation has nothing to do with the defendant Tarantino; and as far as he is concerned, erase it from your minds. It may be difficult to do, but under your oath as jurors you are required to do it.' In its final instructions the court again strongly admonished the jury on the subject. It is well settled that where defendants are tried jointly for participation in the same crime or crimes evidence inadmissible against one defendant may be admitted against a codefendant, provided the jury is properly instructed on the subject. See People v. Trawick, 78 Cal.App.2d 604, 178 P.2d 45; People v. Wade, 71 Cal.App.2d 646, 163 P.2d 59 and cases cited therein. Here 'in the instant case it appears that the trial court was fully cognizant of this rule and properly apprised the jury of its duties in the premises.' People v. Wade, supra, 71 Cal.App.2d at page 653, 163 P.2d at page 63. Counsel have presented no authority for the contention that the rule is, or should be, different because one of the crimes charged is that of conspiracy.
(d) Evidence of Similar Offenses.
The prosecution introduced evidence of conversations in which defendant participated which indicated that defendant was engaged in extorting money from others than the three mentioned in the indictment and was using other persons than Eichenbaum to do the collecting. Thus, a recording of three broadcasts by defendant accusing specified International Settlement taverns of violating the law by serving liquor to minors, etc., and conversations by defendant with one Sigle relative to getting ads from these taverns to prevent them from getting what defendant called 'the Tarantino treatment' were put in evidence. Also recordings of defendant's half of a telephone conversation in which defendant told of a meeting he had with one Anderson in which defendant told Anderson, in effect, that if he took blood bank ads in the magazine defendant would not blast Anderson about the latter's claimed improper marriage. There were other conversations of similar nature with other persons. In these conversations no mention was made of Eichenbaum nor was there any direct evidence that he was involved in them or that he knew any of the persons with whom defendant was conversing. Defendant contends that for that reason and because he claims they had no bearing on the crimes charged, they were inadmissible.
A prima facie case of conspiracy between defendant and Eichenbaum had been made out, among other things, by (1) the testimony of Vlasoff that Eichenbaum told him to put an ad in defendant's Hollywood Life, that then Vlasoff talked to defendant urging defendant not to blast him on his broadcast. Defendant told Vlasoff to talk to Eichenbaum who demanded $500. (2) Rourke, after being blasted by defendant, gave $100 to Eichenbaum for an ad in Hollywood Life, and later was told by defendant that everything was straightened out. (3) Defendant broadcast that Armstrong's property was being used for prostitution. Armstrong consulted Eichenbaum, who phoned defendant. Armstrong then paid Eichenbaum the $500 which the latter demanded. Eichenbaum told defendant he had received $500 and told defendant to scratch Armstrong's property 'off the list.' These conversations were admissible from two standpoints: (1) Acts and declarations of a coconspirator after prima facie proof of the conspiracy has been made. The evidence in the Vlasoff, Rourke and Armstrong matters definitely showed that defendant and Eichenbaum conspired together to extort money through the threat of the use by defendant of his broadcasts and Hollywood Life, even though there was no direct evidence of an agreement between them to do so. 'As a general rule, a conspiracy can only be established by circumstantial evidence 'for, as the courts have said, it is not often that the direct fact of an unlawful design which is the essence of a conspiracy can be proved otherwise than by the establishment of independent facts, bearing more or less closely or remotely upon the common design (5 Cal.Jur. 521); and it is not necessary to show that the parties met and actually agreed to undertake the performance of the unlawful acts (citing authority), nor that they had previously arranged a detailed plan * * * for the execution of the conspiracy (citing authority).' People v. Sampsell, 104 Cal.App. 431, 438-439, 286 P. 434, 437.' People v. Steccone, 36 Cal.2d 234, 237-238, 223 P.2d 17, 19. A prima facie showing of the conspiracy having been made, the acts and declarations of the conspirators were admissible. See People v. Steccone, supra, 36 Cal.2d at page 238, 223 P.2d 17. While Eichenbaum was not directly tied into the extortions of other persons than the three mentioned in the indictment nor with the collections made by other apparent agents of the defendant, the jury could very well have inferred from the conversations of defendant with Eichenbaum and the other evidence in the case that he, too, had some relationship to the other extortions. 'Once the conspiracy is established all evidence of the substantive crimes becomes admissible against all participants, even though the other conspirators were not present.' People v. Pierce, 110 Cal.App.2d 598, 610, 243 P.2d 585, 593. 'The weight of the corroborative evidence is for the trier of the facts to determine. People v. Trujillo, supra, 32 Cal.2d at page 112, 194 P.2d 681. The relationship of the parties and all their acts and conduct may be considered in determining whether there are sufficient corroborating circumstances.' People v. Frankfort, 114 Cal.App.2d 680, 692, 251 P.2d 401, 409.
(2) In any event, they were admissible against defendant under the rule of similar crimes to show scheme, plan or system to conspire and commit extortion. 'It is now definitely settled as the law of this state that upon the trial of an accused for the commission of a particular crime, the prosecution may show as a part of its case that such crime was committed in furtherance of a conspiracy to commit a series of like or other criminal acts, People v. Schmidt, 33 Cal.App. 426, 165 P. 555; People v. Arnold, 199 Cal. 471, 250 P. 168; and such evidence is not rendered inadmissible because it shows that the accused committed other and distinct crimes in furtherance of the common object of the conspiracy.' People v. Braun, 31 Cal.App.2d 593, 604, 88 P.2d 728, 733. Defendant put in issue the motive or intent with which he made his broadcasts and published his magazine. One of the well recognized situations in which evidence of another crime is admissible is 'where evidence of the crime tends to prove a motive for the commission of the crime charged; where a felonious or fraudulent intent, being a necessary element in the crime charged, the evidence of other crimes tends to establish and fix the existence of such motive or intent'. People v. Hermes, 73 Cal.App.2d 947, 957, 168 P.2d 44, 49; Emphasis added.
Defendant contends that other offenses cannot be proved by his extrajudicial statements, and cites People v. Baird, 105 Cal. 126, 38 P. 633, and People v. Hinshaw, 40 Cal.App. 672, 182 P. 59. In the Baird case, the defendant was charged with forgery of a certain note. To prove guilty intent the prosecution introduced other notes claimed to be forgeries. 'The only evidence tending to show that these notes were forgeries consisted of proof of the extrajudicial admissions of defendant to that effect.' 105 Cal. at page 128, 38 P. at page 634. On appeal the defendant contended that the admission of the defendant was not sufficient to permit the introduction in evidence of the notes. The Supreme Court referred to section 111 of volume 3 of Greenleaf on Evidence (the section dealing with forgeries) which supported that contention, stated 'this seems to have been so held in Rex v. Forbes, 7 Car. & P. 224', 105 Cal. at page 129, 38 P. at page 634, and without further discussion stated, 'Conceding that under this rule the proper foundation was not laid for the introduction of these notes in evidence * * *.' It then held that the defendant had not properly objected to the offer of the notes in evidence and upheld the conviction. In the Hinshaw case, the court said, 40 Cal.App. at page 674, 182 P. at page 60: 'It is true that extrajudicial confessions of defendant alone would not be sufficient evidence of the forgeries to render them admissible in evidence. People v. Baird, 105 Cal. 126, 38 P. 633.' It further stated, 40 Cal.App. at page 674, 182 P. at page 60: 'As to the admission of evidence of another forgery, it first appeared as a part of the confession of appellant of the commission of the crime charged in the information. It was embodied in his voluntary statement made to the sheriff, and it was so closely connected with the recital as to the main offense that the confession was hardly divisible. At any rate, in this class of cases, evidence of other similar offenses is admissible for the purpose of showing guilty intent and of rebutting the theory of accident or good faith * * *' and ended up by saying, 40 Cal.App. at page 674, 182 P. at page 60: 'And it may be that the court committed a technical error in overruling the objections of appellant as to the other forgery; but other evidence in the nature of exemplars of his handwriting was subsequently received, so that the error, if any, was cured' (emphasis added), and affirmed the conviction. In neither of these cases was it held that the defendant's extra-judicial statements concerning the other forgeries were not admissible. It should be pointed out that as to the action sales transactions there was considerable evidence to prove the extortions in addition to defendant's conversations concerning them.
Defendant contends that the evidence was insufficient to establish the action sales transactions as similar offenses because no mention is made of Eichenbaum in any of the testimony related thereto. The evidence clearly establishes that defendant, after blasting action sales stores on Market Street, used Sigle and Barrish to extort money by way of ads in Hollywood Life from the store owners to prevent further blasting. The court instructed that count 1 of the indictment only charged a conspiracy between defendant and Eichenbaum and that no other persons were involved in that charge. As there was no direct evidence to tie Eichenbaum into the action sales matters, defendant contends defendant's conduct with other agents constituted separate conspiracies under the principle of Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557. The court stated that it was in accord with that principle but properly admitted by evidence as distinct acts of one of the conspirators to show defendant's scheme, design and intent and plan. See People v. Cassandras, 83 Cal.App.2d 272, 280, 188 P.2d 546. It must be remembered that defendant 'apparently actuated by a desire to place himself in an especially favorable light before the jury, injected into the case in the course of his direct examination', People v. Westek, 31 Cal.2d 469, 476, 190 P.2d 9, 13, his motives for calling attention to the alleged violations of law, claiming he was acting in aid of law enforcement.
In People v. Lisenba, 14 Cal.2d 403, 94 P.2d 569, appears a review of the California cases on the quantum of proof required where evidence of other crimes is offered to prove intent, motive, common design, etc. It is there said, 14 Cal.2d at page 431, 94 P.2d at page 583: "In effect, we recently held in People v. Thorne, 10 Cal.2d 705, 708, 76 P.2d 491 , that evidence which merely tends to show an attempt to commit or the commission of other offenses is admissible to prove common scheme or plan even though it falls short of proving the corpus delicti of such other offenses. * * *
"We also there quoted from People v. Sindici, 54 Cal.App. 193, 196, 201 P. 975, to the effect that 'Where the very doing of the act charged is in issue [as here] and is to be evidenced, one of the essential facts admissible is the person's plan or design to do the act. This plan or design itself may be evidenced by his conduct, and such conduct may consist of other similar acts * * * so connected as to indicate a common purpose including in its scope the act charged. * * *'
"In People v. Baker, 25 Cal.App.2d 1, 76 P.2d 111, 112, it is declared in part that 'It is not essential that such similar transactions shall have resulted in the commission of a crime. * * *"'
In People v. Consigli, 105 Cal.App.2d 104, 106, 232 P.2d 526, it was held the other offenses need not be proved to a moral certainty. People v. Albertson, 23 Cal.2d 550, 145 P.2d 7, 21, contains the elements required in proving the other offenses, all of which elements are present in the instant case: "* * * (a) Ground must first be laid implicating the accused in the charge under trial, and unless sufficient evidence of this has been, in the opinion of the trial judge, first adduced, all evidence of other offenses must be excluded; (b) the collateral offense cannot be put in evidence without proof that the accused was concerned in its commission; (c) there must be identity of person or crime, scienter, intent, system, or some integral parts of the exceptions established between the charge under trial and that sought to be introduced, that clearly connects the accused, showing that the person who committed the one crime must have committed the other. In other words, some connection between the other crime and the crime charged must be shown, and it must be shown with reasonable certainty that the accused committed the other crime." The conversations in question were admissible as tending 'to establish intent, guilty knowledge, motive, a common scheme, plan, or system * * *.' People v. Burnett, 21 Cal.App.2d 613, 619, 69 P.2d 1028, 1031.
(e) Replaying of Recordings.
Recordings of three conversations of defendant with Eichenbaum on the afternoon of September 10th were played to the jury during the trial. These referred to the Armstrong transaction and his payment to Eichenbaum of $500. Both defendants denied that two of these conversations were between defendant and Eichenbaum, defendant claiming they were with other persons. The jury retired to deliberate at 11:40 a. m. At 3:10 it requested that the recordings of the three conversations be played. The jury also requested that Eichenbaum's testimony as to his whereabouts at this time be read. The jury's request was granted. In about 40 minutes the jury asked to hear the recording at the time that afternoon when Eichenbaum claimed to be in defendant's room and the first five minutes after he left. This was done. During the four days of deliberation the jury returned four times and had played, at its request, either all or some of these three conversations. On another occasion it returned for the reading of a portion of Armstrong's testimony. On one of the above occasions it requested and had the recording of one of the conversations played three times and on another certain portions played twice. Defendant at no time prior to the fourth request objected either to the reading of testimony or the playing of the recording. In fact, at the time of the first request, defendant suggested that the transmitter be moved as close to the jury as possible. On the fourth occasion, defendant, for the first time, objected to any further playing of the recordings. The court overruled the objection, stating it considered playing a recording was the practical equivalent of reading the testimony to the jury. Defendant contends that playing a recording violated section 1138 of the Penal Code, which provides: 'After the jury have retired for deliberation, if there be any disagreement between them as to the testimony * * * the information required must be given * * *' in effect, in open court. We see no violation of this section. The recordings were a type of demonstrative evidence. The jury had heard them played during the trial and had the right to determine whether the voice other than defendant's was that of Eichenbaum. Section 1137, Penal Code, provides that the jury may take into the jury room 'all papers (except depositions[)] which have been received as evidence in the cause, or copies of such public records or private documents * * *.' These recordings were not depositions, and we know of nothing in the law which would have prevented the jury from having in the jury room the recordings which had previously been read to them. The practical problem of the necessity of an operator being present and mechanical difficulties precluded such a possibility. Hence the proper place to play them was in the courtroom. Moreover, as pointed out, it was only on the last occasion that defendant objected. The court did not abuse its discretion in complying with the jury's request to have the recordings repeatedly replayed.
3. Insufficiency of Evidence, Counts 3 and 4.
Count 3 charged defendants with extorting $50 from Rourke by threatening to impute to him a disgrace and crime and to expose a secret affecting him. Defendant contends that the exposure of Rourke had already been made, that the threat which was made was merely to injure his property and that Rourke did not act under fear of further exposure.
It needs no discussion to show that defendant's broadcast that Rourke's three liquor stores were selling 'naked and obscene pictures' openly to customers including minors, and that dice games were being conducted, was more than an attack on Rourke's property. It was a charge that Rourke was violating the law. True, Rourke had already been exposed by this broadcast, but Eichenbaum told him, after getting a $50 ad out of him and phoning defendant to that effect, 'it's a good thing you got in touch with us today or we really would have blasted you tomorrow.' Later the same day defendant told Rourke he was glad everything was straightened out. The fact that defendant had once exposed Rourke's crimes, would not make the acceptance of money to prevent another exposure, any less the crime of extortion. The evidence clearly shows that Rourke paid the $50 under threat of fear of further exposure and that defendant committed the crime as charged.
Count 4 charged defendants with extorting $500 from Armstrong by threatening to accuse him of the commission of crime and to expose and impute to him disgrace and crime and to expose a secret affecting him. Armstrong owned the property at 1869 Sutter which defendant broadcast was being used for prostitution. This was more than an attack on property; it was a charge that a crime was being committed there. Three days before the broadcast defendant told Barrish defendant was giving Armstrong his last chance, and then pointed out that Armstrong's wife could not afford to be closed. Armstrong could read the handwriting on the wall, and to prevent further broadcasting that he as well as his wife were committing a crime he contacted Eichenbaum, who then called defendant asking what Armstrong could do about the broadcasts. Defendant agreed that for $500 the matter would be straightened out. Eichenbaum told defendant that he got the $500 from Armstrong and that when he and defendant needed more money they would march around and get another $500. Eichenbaum then told defendant to scratch 1869 Sutter off the list. Clearly the evidence discloses that Armstrong paid the $500 to keep from again being charged with the crime of operating a house of ill fame, and that defendants committed the crime as charged.
4. Were the Verdicts Coerced?
The case went to the jury on the morning of December 18th. The verdicts were returned the night of the 22nd. December 19th, 4 p. m., the jury returned to the courtroom after sending the judge a note, 'We cannot agree on any count of the Indictment.' The foreman stated they stood 9 to 3 (which way did not appear). The recording which the jury had previously requested was then played, and the jury retired to the jury room. December 21st, 11 a. m., the jury returned to the courtroom, the foreman having written the judge, 'We took another ballot at 9:45 a. m. and still stand 11 to 1, and no chance of a change,' with a postscript signed by Juror Hennington, 'Any further argument is very likely to result in bodily harm to one or more jurors.' The court then implored the jury to consider the case dispassionately and not to allow anger or personal animosity to interfere with their calm deliberation, 'And, as a further remark, I might just say, and this is not a threat, that if any juror inflicts any bodily harm on any other juror, I certainly would take care of that situation and deal with it in a manner that would make the offender very sorry that the incident occurred, if it does occur. Now, that is not a threat; that is just a rather blunt statement, but I beg all of you to put aside any ill feeling that you might have, if you have any * * * The attitude and conduct of jurors in their deliberations are a matter of considerable importance. It is rather [not] productive of good for a juror, upon entering the jury room, to make an emphatic expression of his opinion on the case or to announce a determination to stand for a certain verdict; and when one does that at the outset his sense of pride may be aroused, and he may hesitate to recede from an announced position if it is shown that it is fallacious. You are not partisans or advocates, but judges. Now, if--don't let any feeling of pride or feeling of personal hurt or animosity prevent you from discussing this case with calmness and with equanimity.' It continued on the jury's duty of discussing the case and of ascertaining and disclosing the truth, and repeated an instruction given earlier to the effect that it was in the interests of both the state and the defendant if a verdict be returned with a conclusion of the case. 'Now, I ask that you relax, and if possible discuss this case further, but with calmness and deliberation, and no threats of bodily harm because even the threat of bodily harm would have to be dealt with by me. I have never seen in my experience any indication that such a thing might occur, but I wish to be sure that it does not occur here. Now, please don't--don't discuss this in a mood of anger or resent[ful]ness. Try to arrive at a conclusion with calmness and deliberation. So, I will ask that you retire again.' Defendant then moved that the court reread an instruction originally given to the effect that each juror is entitled to abide by his personal conviction. This was done.
December 22nd, the judge received three notes. One written by the foreman the night before at 8:05 p. m. read: 'Since noon today and at this time all misunderstanding leading to ill feeling has been completed [completely] removed and deliberation is proceeding in a friendly atmosphere. We are determined to continue in this manner whether we eventually reach a verdict or not.' One signed by Juror Mrs. Brizzolara read: 'The opposed juror states he is withholding information from us until tomorrow morning. He states he is protecting three interests, the State, the defense and the jury.' The other signed by the foreman read: 'We have followed the Court's instruction to the best of our ability. We have not deliberated since shortly after our last appearance in court. We are not deliberating now and have not been deliberating during many long periods of time previous to this. The vote stands 11 to 1 and has been this way since Sunday morning. We are deadlocked and cannot arrive at a unanimous decision in reaching a verdict. It is the opinion of every one that we cannot do any more. We cannot and are not deliberating because there is no avenue of approach left and all others have been rejected. If there is no deliberation then no verdict may be forthcoming and there is no argument or approach tried that has not been definitely rejected.' Both of these notes were dated 3:35 p. m. of the 22nd. A motion in chambers by defendant for a mistrial was denied. The court called the jury in to the courtroom at 4:30, stated that he had received these notes, and stated: 'Now, it is your duty, under your oaths as jurors, to deliberate, and to refuse to discuss the case further is a violation of your oaths as jurors. I know that you have been very patient and have been here a long time, and maybe tempers wear thin, but it is your duty to deliberate until the court excuses you.' It then pointed out that the jurors were not required to be in accord on all counts as to both defendants, and asked them to deliberate 'somewhat further * * * even though it is a hardship on you,' and asked the bailiff to take the jurors to dinner about 6 o'clock. At 8:45 the same evening (December 22nd) the jury returned with their verdicts.
In support of his contention that the jury was coerced defendant cites, among others, People v. Carder, 31 Cal.App. 355, 160 P. 686, which is readily distinguishable from our case. There, the judge used such language as he didn't want to decide any question of fact for the jury, "though it seems very plain to me." 'How many contrary ones are there?' "* * * there oughtn't to be any trouble. It's a case you ought to decide, ought to agree upon, and don't make up your minds that you can't agree, don't get contrary * * *." 31 Cal.App. at page 356, 160 P. 686. The appellate court stated, 31 Cal.App. at page 357, 160 P. at page 687: 'We think it quite apparent that from the statements of the learned trial judge the jury must have concluded that he was convinced of the defendant's guilt and that as honest men it was their duty to so find. * * * It was proper for the presiding judge to admonish the jury of their duty to consult together, to listen to argument, and to endeavor earnestly to reach an agreement, and, although of somewhat questionable propriety to remind the jury of the expense of a new trial, such remark could not justly be held sufficient ground for reversal, nor perhaps even for criticism; but to characterize the two dissentient jurors as 'contrary' and to declare that there should be no trouble about agreeing upon a case like this, and that it simply called for the sensible reasoning of men according to the evidence, transcends the proper limits of judicial discretion and authority.' Nothing the judge said in our case gave the jury any ground for concluding what his opinion of the guilt or innocence of defendants was. He only admonished the jury of their duty to consult together. He did tell them that he would not countenance physical violence, which, of course, it was his duty to do. It does not appear that keeping a jury out four days in a trial which had already consumed approximately 44 days was an abuse of discretion, even though some of the jury indicated they would like to be discharged. Nor did the judge err in reminding the jurors that it was their duty to consult with one another. In other cases cited by defendant the situation was also markedly dissimilar from the one in this case. In People v. Walker, 93 Cal.App.2d 818, 209 P.2d 834, 838, after finding out that the jurors stood 10 to 2 for conviction, which ratio had never changed, the court said, "there are twelve of you,--and ten one way and two the other,--that is coming pretty close to an agreement." As we said, the jury there well could have believed that the judge intended that the jury was close to an agreement only if the two for acquittal would join the majority. Similarly in People v. Crowley, 101 Cal.App.2d 71, at pages 74, 76, 224 P.2d 748, at page 751, the judge made statements such as he felt that the evidence was "plain and clear", "as I say the evidence is clear although conflicting", which the appellate court held: 'These statements meant that the court was of the opinion that although there was conflicting evidence either that upon which the People relied, or the testimony of the defendant was unworthy of belief and should be rejected or, in other words, that there was no basis in the evidence for a reasonable difference of opinion as to the guilt of the defendant.' In People v. Kindleberger, 100 Cal. 367, at page 368, 34 P. 852, at page 858, the judge said, among other improper statements, 'in view of the testimony in this case, the court is utterly at a loss to know why twelve honest men cannot agree in this case.'
As we pointed out in People v. Walker, supra, 93 Cal.App.2d 818, 822, 209 P.2d 834, 836: '1. It is proper for the court to remind the jury that the principal purpose of the trial is to reach some verdict, and that they should not give up without making all possible efforts to do so. [Citations.] 2. It has been held proper for the court to remind the jury that a new trial will be an expense to all taxpayers [citations] although such statements have been characterized as 'hazardous.' [Citation.] 3. The judge may ask the numerical division of the jury [citation], but cannot ask which number is for conviction. [Citation.]' In all these matters the judge here acted properly. 'We do not find anything that the court said that could be construed as directing the jury to find a verdict of conviction or any attempt to compel them to change their mind, or to agree one way or the other in the matter.' People v. Hall, 25 Cal.App.2d 336, 340, 77 P.2d 244, 246. 'The length of time that a jury should be held for deliberation is ordinarily a matter within the discretion of the trial court. Keeping a jury out for a reasonable length of time cannot be regarded as either improper or as an attempt to coerce a jury in reaching a verdict.' People v. Wooley, 15 Cal.App.2d 669, 673, 59 P.2d 1065, 1067.
5. Defendants' Proposed Instruction No. 1.
It instructed in substance that defendant was not responsible for representations made by Eichenbaum, Barrish, Sigle or Jaye unless he authorized or sanctioned them. Concededly, this was a proper instruction. See In re Marley, 29 Cal.2d 525, 527, 175 P.2d 832, which so holds. The trial court refused the instruction on the ground that it was covered by other instructions. In the instructions given by the court there are general statements such as 'Guilt must originate in a man's own heart and it must be established by his own acts. It cannot be fastened upon him solely by the acts, conduct or admissions of the others' and that no person charged with belonging to a conspiracy is 'bound by or liable for any act or declaration of a person who was not a member of the conspiracy, although the latter person may have performed an act or acts which tended to promote the object of the alleged conspiracy. Evidence of an act which furthered the execution of the design of an alleged conspiracy is not, in itself, sufficient to prove that the person committing the act was a member of such a conspiracy. Neither is evidence that such person or any person was in the company of or associated with one or more alleged conspirators, in itself, sufficient to prove that he was a member of the alleged conspiracy.' We do not find any language to the effect that defendant is only responsible for the statements of Eichenbaum and the others if he authorized or sanctioned them. The instruction should have been given. However, the failure to give it could not possibly have been prejudicial. In every instance of testimony concerning acts of Eichenbaum and the others (with the exception of certain acts of Eichenbaum admitted solely against him) the evidence clearly showed that defendant either authorized or sanctioned their acts. It is not reasonable to assume, in view of the evidence, that the giving of this instruction would have in anywise affected the verdict.
The judgment and the order denying new trial are affirmed.
PETERS, P. J., and FRED B. WOOD, J., concur. --------------- * Opinion vacated 290 P.2d 505. 1 'Attention, George Reilly, head of the Board of Equalization * * *. Right on Market Street in San Francisco * * *. Three liquor and cigar stores, named John O'Rourke are selling naked and obscene pictures openly very openly to customers, which may also include minors * * *. The same John O'Rourke liquor licensed stores have dice games, claw machines and pinball machines; George, Huh! I could hardly believe my own eyes.'