Opinion
Page __
__ Cal.App.2d __ 286 P.2d 915 The PEOPLE of the State of California, Plaintiff and Respondent, v. Vincent Raymond WALSH and Joseph M. Stewart, Defendants and Appellants. Cr. 5365. California Court of Appeals, Second District, Third Division Aug. 11, 1955Rehearing Denied Aug. 19, 1955.
Hearing Granted Sept. 8, 1955.
[286 P.2d 916] Robert M. Fisk and Richard P. B. Tyson, Pasadena, for appellant Walsh.
Max Solomon and John J. Bradley, Los Angeles, for appellant Stewart.
Edmund G. Brown, Atty. Gen., Clarence Linn, Chief Asst. Atty. Gen., Raymond Momboisse, Deputy Atty. Gen., San Francisco, S. Ernest Roll, Dist. Atty., William E. McGinley, Deputy Dist. Atty., Los Angeles, for respondent.
SHINN, Presiding Justice.
Joseph Stewart and Vincent Walsh were jointly accused by indictment of the crime of bribery in violation of section 68 of the Penal Code. It was charged that the accused were inspectors of plaster and other building materials in the County of Los [286 P.2d 917] Angeles; they received $125 from Arnold Stubblefield for the purpose of influencing their action and opinion in matters then pending before them in their official capacity. The indictment also contained a second count charging the accused with having accepted $50 from Edward A. Griffin for a like purpose. Defendants were convicted in a jury trial and their motions for new trial were denied. They appeal from the judgments and the orders.
There was evidence of the following facts. On February 5, 1954, defendants inspected an apartment building at 516-22 West 38th Street, San Pedro, and found certain of the plastering to be unsatisfactory. They acted together in making an order 'Remove non-conforming interior plaster or submit test holes of interior plaster at spots indicated by plastering inspector. * * *' One copy was tacked to the stairs on the job and another was sent to the general contractor. No response having been received, Walsh, at the request of Stewart, contacted the general contractor and also spoke to Stubblefield by telephone. Walsh then wrote a duplicate order. By this time the job had been completed. On March 5 Stubblefield met Walsh and Stewart at the job. Stubblefield was told that four tests would be required at a cost of $60 each. Walsh then said: 'I heard that you were willing to fix the job up.' Stubblefield asked if the price of one test would be all right but Walsh said he thought $125 would take care of it. Walsh, in the presence of Stewart, told Stubblefield that if he would work with them he would not have to worry about other jobs--that they could have a job fixed anywhere in the city except part of the San Fernando Valley. Stewart and Walsh drove Stubblefield to a bank where Stubblefield cashed a check for $125; he entered the car and gave the money to Walsh in the presence of Stewart; Stubblefield had no tests made on the plaster; nothing further was done with the plastering and on March 8 Walsh made a record entry 'Cured O.K. 3/8/54 Walsh,' indicating that the plaster had hardened or cured and that the job was satisfactory.
There was evidence of the following facts with respect to the Griffin job. One Margiotti was a general contractor; Griffin a plastering contractor. On March 10 all the plastering had been done. Stewart placed a 'stop order' on the job and Griffin phoned Stewart at the latter's home. It was arranged for Griffin to meet Stewart or another inspector the following morning at the job site. In the meantime Griffin had been advised through a building material company that he had better pay off the inspectors and $50 was suggested as an amount that would probably satisfy them. On March 11, Walsh and not Stewart appeared and met Griffin. Walsh said the plastering must be rejected; Walsh said: 'Well, these jobs usually are taken care of' and set a price of $50 which was paid by Griffin, and Walsh said 'Well, this should handle you for a while to come.' Nevertheless the job was not approved up to the time of trial, although the plastering withstood several tests. Griffin telephoned Walsh and asked why the job had not been approved and Walsh said 'You know why, you son of a bitch' and hung up the phone. Both Walsh and Stewart denied having accepted any money either from Griffin or Stubblefield.
Over the objections of the defendants the People introduced in evidence the $125 check cashed by Stubblefield and the $50 check cashed by Griffin. It is contended that the evidence was improperly received. We think the ruling was not erroneous. It was proper for the court to receive the testimony of Stubblefield and Griffin that they cashed checks immediately before meeting the respective defendants. The checks were not evidence of any additional facts and no objection was made to the testimony of Stubblefield and Griffin that they did cash checks. In view of the evidence that the checks were drawn immediately prior to the meetings with the defendants and that the identical money withdrawn was paid to the defendants, the checks themselves were evidence of no fact other than that Stubblefield and Griffin had in their possession the amounts of money which they claimed to have paid to the defendants.
[286 P.2d 918] There was no error. People v. Vollmann, 73 Cal.App.2d 769, 167 P.2d 545.
We believe, however, that grave error was committed in the introduction in evidence over the objections of the defendants of certain writings of Stubblefield and Griffin, namely, a memorandum written by Stubblefield on the back of his check and a notation made by Griffin upon the counterfoil of his check. Stubblefield testified that when he drew the check he made an endorsement on the back of it. The notation reads: 'Paid Vince Walsh $125.00 for fixing job 38 & Pacific, San Pedro job.' Griffin testified that at the time he cashed a check for $50 he wrote on the counterfoil of the check the word 'pay-off.' The People offered these writings in evidence and to such offers the respective defendants registered sufficient objections, which were overruled.
It is a general rule that evidence will not be received that a witness has previously made statements the same as or consistent with his testimony on the stand; his testimony cannot be bolstered in that fashion. There are exceptions to the rule, namely, that where a witness has been charged with bias, prejudice, a vengeful motive which is claimed to have influenced his testimony, his statements consistent with such testimony may be proved, provided it be shown that at the time of the making thereof the witness did not hold the claimed bias, prejudice or vengeful motive and the exception is applicable where facts are shown from which it might be inferred that the witness has recently fabricated his testimony in which case evidence will be received of consistent statements if it appears that they were made prior to the event from which an inference of recent fabrication may be drawn. However, the claim of recent fabrication must consist of something more than prior statements inconsistent with the testimony given.
The entire rule assumes that there is a claim that the testimony of the witness is of recent contrivance. Whether the claim be that the witness has recently developed bias or prejudice toward a party, or has been persuaded or influenced to color his testimony adversely, there in an implication that but for the bias or other influence the testimony would have been different. But if, from cross-examination, or otherwise, it appears that the witness is merely accused of lying, or if his former contradictory statements are proved in order to impeach him, evidence of former statements consistent with his testimony are inadmissible. Davis v. Tanner, 88 Cal.App. 67, 76, 262 P. 1106.
In his work on Evidence, section 1128, Wigmore says: 'A consistent statement, at a time prior to the existence of a fact said to indicate Bias, Interest, or Corruption, will effectually explain away the force of the impeaching evidence; because it is thus made to appear that the statement in the form now uttered was independent of the discrediting influence. The former statements are therefore admissible.' 'The charge of Recent Contrivance is usually made, not so much by affirmative evidence as by negative evidence that the witness didnot speak of the matter before' etc. § 1129. Section 1130 says that a witness who identifies a defendant in the courtroom will be allowed to testify that he identified him at a former time such as at the time of the arrest, the reason being that the courtroom identification may have been influenced by the surroundings.
In many situations the courts when considering the admissibility of former consistent statements have distinguished between statements made prior to the existence of facts tending to create bias or other influence and those made under conditions not different from those existing at the time the testimony was given. The invariable rule is that consistent statements made prior to the existence of the conditions creating bias are admitted; statements made under conditions not different from those at the time the testimony is given are rejected. IV, Wigmore on Evidence, 197, 202, §§ 1126, 1127; People v. Doetschman, 69 Cal.App.2d 486, 490-491, 159 P.2d 418; People v. Kynette, 15 Cal.2d 731, 753-754, 104 P.2d 794; Board of Com'rs v. Vickers, 62 Kan. 25, 61 P. 391; State v. Dudoussat, 47 La.Ann. 977, 17 So. 685; Lanasa v. State, 109 Md. 602, 71 A. 1058; [286 P.2d 919] Commonweath v. Nason, 252 Mass. 545, 148 N.E. 110; State v. Stogsdill, 324 Mo. 105, 23 S.W.2d 22; People v. Katz, 209 N.Y. 311, 103 N.E. 305, 312; Ferris v. Sterling, 214 N.Y. 249, 108 N.E. 406; In re McClellan's Estate, 21 S.D. 209, 111 N.W. 540, 543; Lewy v. Fischl, 65 Tex. 311, 318; Silva v. Pickard, 10 Utah 78, 37 P. 86, 89; State v. Carrington, 15 Utah 480, 50 P. 526, 527; Yarbrough v. State, 105 Ala. 43, 16 So. 758; McCord v. State, 83 Ga. 521, 10 S.E. 437; Gates v. People, 14 Ill. 433, 438; Hewitt v. Corey, 150 Mass. 445, 23 N.E. 223; Hayes v. Cheatham, 74 Tenn. 1, 10; Legere v. State, 111 Tenn. 368, 77 S.W. 1059; Anderson v. State, 50 Tex.Cr.R. 134, 95 S.W. 1037; Blackburn v. State, 78 Tex.Cr.R. 177, 180 S.W. 268, 270; Marable v. State, 87 Tex.Cr.R. 28, 219 S.W. 455, 457, 458; Coleman v. State, 90 Tex.Cr.R. 297, 235 S.W. 898, 899, 900; Nations v. State, 91 Tex.Cr.R. 112, 237 S.W. 570, 571; Tacktill v. Eastern Capitol Lines, 260 A.D. 58, 21 N.Y.S.2d 14.
Robb v. Hackley, 23 Wend.N.Y. 50, discusses the development of the rule in England, its approval by Phillips, Starkie and other authorities and its acceptance in this country, and says:
'If an attempt is made to discredit the witness, on the ground that his testimony is given under the influence of some motive prompting him to make a false or colored statement, the party calling him has been allowed to show, in reply, that the witness made similar declarations as a time when the imputed motive did not exist.
'But as a general, and almost universal rule, evidence of what the witness has said out of court, cannot be received to fortify his testimony. It violates a first principle in the law of evidence to allow a party to be affected, either in his person or his property, by the declarations of a witness made without oath. And besides, it can be no confirmation of what the witness had said on oath, to show that he has made similar declarations when under no such solemn obligation to speak the truth. It is no answer to say, that such evidence will not be likely to gain credit, and consequently will do no harm. Evidence should never be given to a jury which they are not at liberty to believe. * * * We have not in this state departed from that ancient and safe landmark in the law of evidence, which requires a witness in all cases to speak under the solemn sanction of an oath, and I am unwilling to peril the lives, the fame, or the property of individuals, by adopting the contrary doctrine.' At pages 52-53, 57.
The People contend that a different rule prevails in California. They say 'As the cross-examination of both prosecuting witnesses led to the unavoidable conclusion that their testimony was fabricated and that at the time of trial they were biased and prejudiced against the appellants, it was proper to introduce prior consistent statements for the limited purpose of rehabilitation. This is the recognized law of this state as so often has been expressed by our courts.' Citing People v. Kynette, 15 Cal.2d 731, 104 P.2d 794; People v. Weatherford, 78 Cal.App.2d 669, 178 P.2d 816; People v. Nobles, 44 Cal.App.2d 422, 112 P.2d 651. Other cases discussing the point are Bickford v. Mauser, 53 Cal.App.2d 680, 128 P.2d 79 and Davis v. Tanner, 88 Cal.App. 67, 262 P. 1106. Thus, by omitting an essential element of the rule the People contend that if it appears that a prosecuting witness entertains at the time of trial bias and prejudice toward an accused it is permissible to fortify his testimony by proof of his former statements of the same general tenor and effect, even though the witness entertained the same feelings toward and accused at the time the statements were made. This is not the law. If it were it would be a rare case in which the accused would not be confronted with hearsay of the most damaging sort. In each of the cases cited by the People the courts clearly stated the rule under which prior consistent statements may be received. In Davis Tanner, supra, 88 Cal.App. at page 75, 262 P. at page 1109, it was said: 'It is apparent from the record that appellants offered the former statement of the witness Hogg to impeach her, on the [286 P.2d 920] theory that she had fabricated or colored her testimony given at the trial through the urgent inducement of respondent's attorneys, with whom a recent conference was developed by appellants, with the manifest inference that this interview was the cause of whatever conflict exists between her testimony at the trial and her former statement made to appellants.' In People v. Kynette, supra, 15 Cal.2d 731, 104 P.2d 794, the court said: 'When a witness has been charged with improper motives of interest, or improper influences, or with recent fabrication, the law allows hearsay statements to be introduced for the purpose of showing that the same and consistent statements had been made at a time prior to the fabrication or prior to the time the motive of interest existed. Such evidence is then admitted, not to prove the facts of the case, but as tending to show that the witness has not been controlled by motives of interest, and that he has not fabricated something for the purposes of the case.' 15 Cal.2d at page 753, 104 P.2d 794, 806. In speaking of the cross-examination of a witness, Sakalis, who had testified that he had been taken into the hills and beaten by the defendants and later had been receiving $50 every two weeks from the district attorney's office, the court said: 'The undoubted purpose of such cross-examination was to impeach the credibility of the witness and to attempt to establish that his story was probably of recent fabrication and perhaps influenced by the payments so received.' 15 Cal.2d at page 753, 104 P.2d at page 805. (Emphasis added.) Accordingly the receipt of evidence of earlier statements of Sakalis consistent with his testimony was approved. There is nothing in the holding inconsistent with the court's statement of the law. In Bickford v. Mauser, supra [53 Cal.App.2d 680, 128 P.2d 83], it was said that the evident purpose of the cross-examination of the witness was to develop 'that after he talked with defendants' counsel and visited the scene of the accident he changed his story.' This was a charge of recent fabrication and the testimony was admissible in accordance with the holding in Davis v. Tanner, which the court quoted at some length. If it was the intention to hold that such evidence is admissible in any case in which the testimony of a prosecuting witness is claimed to be false, wholly disregarding the element of recent fabrication, the holding would be out of line with the universal rule as demonstrated in the dissent of Presiding Justice Peters. In People v. Nobles, 44 Cal.App.2d 422, 112 P.2d 651, 653, the court stated: 'It is a well known rule that, under ordinary circumstances, prior extra-judicial statements of a witness consistent with his testimony on the stand will not be admitted for the purpose of bolstering such testimony. But the exception to that rule is that such evidence is proper to rebut inferences created by the cross-examination of the witness and to rehabilitate his evidence following attempts to impeach him by endeavoring to show that his testimony is actuated by base or ulterior motives, or that his testimony in court is of recent fabrication.' It was held to have been proper to receive evidence that a prosecuting witness had made statements to a deputy sheriff consistent with her testimony at the trial for the reason that an inference had been created that the testimony was influenced by a vengeful attitude toward the accused. From the facts stated in the opinion it does not appear whether the former statements were made at a time when the witness was not actuated by a motive of revenge. This is a prerequisite for the admission of former statements and we must assume that the court was mindful of that fact in approving the receipt of the evidence, since otherwise the holding would have been contrary to the settled rule in this and all other jurisdictions.
People v. Doetschman, 69 Cal.App.2d 486, 159 P.2d 418, supra, applied the rule as follows: It being claimed by the defense that the prosecuting witness was frightened when she was taken to the district attorney's office for questioning and when she testified before the grand jury, was threatened with perjury and with being taken from her parents and placed in a home, evidence that before the fears or threats were claimed to have been aroused or made, the statements of the witness consistent with her testimony were admissible, whereas [286 P.2d 921] statements made to a doctor after the inception of the alleged feard or threats were clearly inadmissible. Other cases in point are People v. Ferrara, 18 Cal.App. 271, 122 P. 1089; People v. Doyell, 48 Cal. 85; California Electric Light Co. v. California Safe Deposit etc. Co., 145 Cal. 124, 78 P. 372.
We have extended our discussion in order to impress upon the People that upon the trial and upon the appeal they have urged upon the courts an interpretation of the decisions of the California courts which is grossly erroneous and manifestly unsupportable.
There was no evidence whatever of facts that would have justified the admission of the writings. Stubblefield and Griffin quite naturally were prosecuting the defendants in the hope they would be convicted; their attitude did not differ from that of accusers generally who feel they have been wronged by criminal means. Such feelings of animosity as they may have entertained had their origin in their transactions with the defendants. Nothing occurred thereafter to change their feelings or motives. It is not contended by the People that the hard feelings of the witnesses toward the defendants was of recent origin. Neither is it claimed that the testimony of the witnesses was given under pressure exerted by the authorities or under any other extraneous influence. The admission into evidence of the writing on the back of Stubblefield's check and the notation made by Griffin on his check stub was grave error. It was no doubt deemed by the jury to be credible corroboration of the testimony of the witnesses. The jury was admonished on more than one occasion that the evidence was not received for the purpose of proving the truth of the contents of the writings, but for the purpose of proving the state of mind of the witnesses, and to refute any inference that they were testifying from evil motives and to rehabilitate them and to prove that their testimony was not a fabrication. The admonitions were erroneous and confusing. In view of the fact that the testimony of the prosecuting witnesses was not otherwise corroborated, we are satisfied that the error requires a reversal of the judgments and orders.
At the request of the People the court gave four instructions on the law of entrapment. They set forth at length the features of that defense. It is not questioned that they were correct statements of the law. The contention of the defendants is that they were inapplicable to the case, tended to distract the jury from the only defense that was urged, namely, that the defendants accepted no money as bribes, and that the instructions in fact implied or at least suggested that the defendants had received money from Stubblefield and Griffin. The People endeavor to justify the giving of the instructions upon the theory that there was evidence which might have suggested to the jury that defendants were claiming that they had been entrapped. It is said that 'People v. Jackson, 42 Cal.2d 540 [268 P.2d 6], supplies a complete answer to this argument of appellants.' This is to say that the pertinent facts in that case were substantially the same as in the present case. This is not true. In the Jackson case there was evidence that the defendant, charged with offering bribes to two police officers, had conferences with those officers in which they gave encouragement to the scheme of protection of gamblers proposed by the defendant and led him on the belief that his proposal was being seriously entertained. Defendant admitted having offered the bribes. His defense was that he was not in earnest and was only testing the honesty of the officers. There were no comparable facts in the present case. Griffin testified that he had conferred with the district attorney's office before paying the money and was advised to pay it. There was not the least semblance of entrapment as there was in the Jackson case. Moreover, the instructions were made applicable to the charge of receiving a bribe from Stubblefield and there was no evidence that the district attorney's office or any officers of the law had any knowledge of that transaction.
In People v. Roe, 189 Cal. 548, 558, 209 P. 560, 565, the court, after stating that it was the duty of the trial court to give [286 P.2d 922] instructions upon all pertinent issues but that they should be confined to such issues, spoke as follows:
'This being so, the charge of the trial court may not, without error, even though correctly stating abstract legal principles, be extended beyond such limitation to the point of covering an assumed issue which finds no support in the evidence, or which the undisputed evidence in the case shows does not exist. Hughes' Instructions to Juries, § 80, p. 70; 1 Blashfield Instructions to Juries, 2d ed., § 82, pp. 183-186; Garcia v. State, Tex.Cr.App., 61 S.W. 122; State v. DeWolfe, 29 Mont. 415-426, 74 P. 1084; Aguirre v. Alexander, 58 Cal. 21; People v. Dallen, 21 Cal.App. 770, 132 P. 1064; Maines v. State, 35 Tex.Cr.R. 109, 31 S.W. 667; Comptoir etc. v. Dresbach, 78 Cal. 15, 20 P. 28; In re Calkins, 112 Cal. 296, 304, 305, 24 P. 577.
'The error of inapplicable instructions rests in the fact that they pertain to points not 'pertinent to the issue,' and contain matters of law for the jury's consideration not 'necessary for their information,' and therefore, instead of enlightening, tent to confuse and mislead the jury. This is so Because such instructions, in effect, either create a false issue or constitute a misstatement of the real issue, thereby distracting the attention of the jury from and befogging the real issue.'
The implications of the instructions on entrapment were unquestionably harmful to the defense.
It is contended on behalf of appellant Stewart that error was committed in the admission over his objection of the testimony of Griffin concerning his conversation with Walsh out of the Presence of Stewart. The ground of the objection was that there was no evidence whatever of the existence of a conspiracy between the defendants. There was no error. The defendants were working as inspectors in the same territory and they were working together on the Stubblefield and Griffin jobs. There was evidence that they were together when Stubblefield paid Walsh $125. There was also evidence that Griffin called Stewart to ask what could be done to straighten out the difficulty on his job and that Stewart after making an appointment for the following day sent Walsh to keep it. There was evidence from which it could have been inferred that a conspiracy existed to demand payment for the approval of plastering work. In order to render admissible the declarations of one of the defendants as against his codefendant it was not necessary that there be more than a prima facie showing of the existence of a conspiracy. People v. Steccone, 36 Cal.2d 234, 223 P.2d 17. Under proper instructions the court submitted to the jury the question whether the evidence was sufficient to prove the existence of a conspiracy. The giving of these instructions was not error. People v. Anderson, 35 Cal.App.2d 23, 94 P.2d 627.
Defendants questioned a Mr. Thille, senior inspector of the Department of Building and Safety, whether after the meeting between Griffin and Walsh a further job order was issued by the department; an objection of the People was sustained and defendants offered to prove that the plastering had never been approved by the Department of Building and that at the time of trial no approval had been given or certificate of occupancy issued. An objection by the People to the introduction of this evidence was sustained. This was error. The offered evidence would have been pertinent to the question whether defendants acted in good faith in refusing to pass the plastering work without tests; however, there was other evidence introduced without objection that up to the time of trial the job had not been approved. The ruling was not prejudicial.
Appellant Walsh was cross-examined with respect to his appearance before the grand jury. He denied to the grand jury having received any money as a bribe. It was shown in his cross-examination that he had refused to answer questions with respect to occurrences at or about the time of the alleged payment of the bribe. It was contended that it was [286 P.2d 923] improper to elicit by means of this cross-examination that Walsh refused to answer certain questions before the grand jury upon the ground that his answers would tend to incriminate him. The cross-examination was not improper. People v. Kynette, supra, 15 Cal.2d 731, 104 P.2d 794. Walsh was permitted to explain at great length his refusal to answer all the questions that were asked of him.
There are no other assignments of error which call for special consideration.
As we have stated, the testimony of Stubblefield and Griffin was uncorroborated except by the written memoranda which they claimed to have made immediately prior to the payment of the bribes. We think this evidence which was erroneously admitted was probably considered by the jury as credible evidence corroborating the testimony of Stubblefield and Griffin. This evidence alone could have influenced the jury to decide the question of credibility of the prosecuting witnesses adversely to the defendants. The errors we have discussed deprived the defendants of a fair trial.
The judgments and orders are reversed.
PARKER WOOD and VALLEÉ, JJ., concur.