Opinion
Cr. 4343
12-14-1949
PEOPLE v. LISS.
Morris Lavine, Los Angeles, for appellant. Fred N. Howzer, Attorney General, Dan Kaufmann, Deputy Attorney General, for respondent.
PEOPLE
v.
LISS.
Dec. 14, 1949.
Hearing Granted Jan. 12, 1950. *
Morris Lavine, Los Angeles, for appellant.
Fred N. Howzer, Attorney General, Dan Kaufmann, Deputy Attorney General, for respondent.
WHITE, Presiding Justice.
In an information filed by the District Attorney of Los Angeles County, defendant was charged with the crime of petty theft with a prior conviction of felonies, to wit: burglary and grand theft, a felony, in that on or about October 19, 1948, defendant did wilfully, unlawfully and feloniously take $27, the personal property of Von's Market. Defendant entered a plea of 'not guilty as charged in the information', and subsequently admitted the prior convictions charged in the information. Motion for a new trial was denied. From the judgment of conviction, defendant prosecutes this appeal.
As grounds for reversal, it is urged, (1) the instructions given by the court were erroneous; (2) the verdict is contrary to law and the evidence, and the evidence is insufficient to support the verdict; (3) the court erred in the admission and exclusion of evidence in the case.
Presenting the facts in a light most favorable to the prosecution as we are required to do following a guilty verdict, the record reveals testimony that on October 19, 1948, Morris S. Chalphon, a salesman employed by the Globe Bottling Company, was in Von's Market, which market was an account of his firm. It was between 5:10 and 5:20 p.m. and Mr. Chalphon was using a telephone in a booth which was some fifteen feet from the candy department in Von's Market. The cash register of the candy department was about the same distance from the booth and was within the vision of the witness. While he was telephoning, the witness saw defendant, with her back toward him, reach into the 'island' of the candy department where the cash register was situated and ring the two-cent key of the register, whereupon the drawer opened, appellant put her hand in twice and took out two handsful of something which the witness was unable to identify, but he did see her place the contents from her hand into her handbag. Immediately after this, defendant circled the candy counter until she was some eight feet from where the witness was located. There was light in the place and the witness testified he was able to discern her features.
At about this time Boris Elkin, manager of the drug department at Von's Market, went to the aforesaid cash register and opened the same by pressing the key. Defendant started out of the store. The witness Chalphon walked over to Mr. Elkin, spoke to him, went to the door with him and pointed out the defendant to him. When Elkin went over to the register he noticed that all the $1 and all the $5 bills were missing from it. When the witness Chalphon pointed out the defendant to Elkin she was approximately forty or fifty feet from the doorway. Mr. Elkin hurried after her, caught up with her and as he moved toward her, defendant turned around and looked back in his direction. When he came up to her defendant said, 'What is the matter?' Up to this time Mr. Elkin had not spoken to her. He then told her he would like to see her in the store for a minute but did not mention for what reason. Defendant asked, 'What do you want to see me about?' and he replied that he would rather discuss that matter in the store than where they were. Defendant stated she was in a hurry to get home, whereupon he told her that it was of vital importance that he speak with her and that she should come back to the store with him. Defendant objected, stating, 'I have nothing to talk about. I have to hurry home'. At this time she started off across Santa Barbara Avenue in the direction of the doorway of the May Company department store.
Von's Market manager Mr. Elkin followed her and caught her just before she went into the door of the May Company, and suggested that she come back to the store with him because he wanted to talk with her and if she did not come with him he would call the police officer on the corner. Defendant thereupon said, 'All right, I will go back with you then, I want to straighten things out.' Up to this point Mr. Elkin had not told her what he wanted to talk to her about. Defendant and Mr. Elkin then proceeded back to the market and went inside to the candy counter.
At this time a Los Angeles city police officer appeared, having been summoned by two men who were sent after him by Mr. Elkin. The latter then informed defendant that money was taken out of the register and that she was observed taking such money therefrom. Defendant handed over her coin purse to him saying that this was her money and that she had not taken any of the market's money. Mr. Elkin examined the purse, and while he did not count the currency in it he noted that there were quite a few single dollar and $5 bills 'bunched up' in the coin purse. At the candy counter, Mr. Elkin asked defendant her name and she told him it was 'Sarah Wineburg' or 'Sarah Winburg'. While Mr. Elkin was speaking to the defendant the aforesaid police officer was standing at the far side of the candy counter about thirteen or fourteen feet away. Mr. Elkin said to the defendant, 'Well, you did take the money from the register, didn't you?' To which she replied, 'Yes'. He asked her why she had taken it and she said she needed it for her sister. The purse was returned to defendant while Mr. Elkin went to get the manager of the grocery department and when they returned the purse was again taken from her. In the presence of the defendant and the officer, the grocery manager and Mr. Elkin made a check of the cash register. They counted all the change in the register, took a reading of the provious day's account and the instant day's business, discovering $36.89 missing out of the cash register. There was a tape on the register and Mr. Elkin testified that this tape showed a two-cent item on it. He testified that in the custom of his business the tape was sent to the office, and that when he went to get it to take it to the preliminary hearing he found it had been destroyed. Mr. Elkin also testified that the aforesaid two-cent item appeared on the tape immediately before the item of sale that he had rung up on the register following the time when Mr. Chalphon observed defendant at the register.
From the candy counter all parties proceded to the office located on the mezzanine floor of Von's Market. There defendant stated that if they would let her go she would give the money back. At the office the money in her purse was counted by the officers who had been called to the scene and they found five $5 bills, seventeen $1 bills, one half dollar, one dime, one nickel and seven pennies. Defendant at this time also told the officers that her name was Sarah Weinberg. From the office of Von's Market defendant was taken to University Police Station in the company of two patrol officers.
At the police station defendant asked permission of the detective on duty to speak with Mr. Elkin alone, which permission was granted. Defendant and Mr. Elkin were some ten or twelve feet away from the detective. Defendant said to Mr. Elkin, 'Will you please have them let me go?', to which he replied, 'Well, you did take the money didn't you?' Her answer was, 'Yes.' He asked her again why she had taken the money and her answer on this occasion was 'that she was broke.'
There is testimony in the record that Mr. Elkin did not make any promise of reward or immunity to the defendant and did not promise that he would let her go or that he would intercede in her behalf to the end that she might receive a light sentence. He testified that her statements were made freely and voluntarily and without duress, force or promise of reward. The witness Elkin specifically denied that he told defendant that he would let her go if she signed a statement that she had taken the money, and would return the same to him. Appellant was not an employee of Von's Market and had no permission to open the cash register or take anything out of it.
There is further testimony that while at University Police Station one of the arresting officers asked defendant why she took the money and she again replied because she was 'broke'. There was testimony that this statement was made without any force or violence being used upon her or without any promise of reward or immunity.
At the booking office in University Station defendant again gave her name as 'Sarah Weinberg', but in a subsequent conversation with one of the arresting officers she gave her true name and denied taking the money, but when asked why she wanted to give it back replied that it was 'just because she was a big-hearted person.'
At the trial, defendant introduced no evidence nor did she take the witness stand in her own behalf to deny any of the aforesaid testimony.
Appellants' contention that the evidence is insufficient to support the verdict and that the latter is contrary to law is devoid of merit. A review of the foregoing testimony and of reasonable inferences that may be drawn therefrom, in the light of the well-established rule governing the power of an appellate tribunal to set aside the verdict of the jury upon the ground now under consideration, substantially supports the verdict arrived at by the duly constituted arbiter of the facts. People v. Alexander, 92 Cal.App.2d 230, 206 P.2d 657. Where as here, there is positive direct testimony that appellant was the perpetrator of the crime, before she can prevail on appeal, she must show that the testimony is inherently unbelievable. People v. Castro, 68 Cal.App.2d 491, 494, 495, 157 P.2d 25. There is no such showing in the case now under consideration. Furthermore, in cases where '* * * it appears from the evidence that defendant could reasonably be expected to explain or deny evidence presented against him, the jury may consider his failure to do so as tending to indicate the truth of such evidence and as indicating that among the inferences that may reasonably be drawn therefrom, those unfavorable to the defendant are the more probable.' People v. Adamson, 27 Cal.2d 478, 490, 491, 165 P.2d 3, 10. Convinced that there was sufficient substantial evidence to justify the jury in finding appellant guilty we leave these contentions of appellant to the contrary to discuss the claim that the court erred in giving or refusing to give certain instructions.
In the course of the instructions given defining confessions and admissions we find the following language: 'If under my instructions you find that a voluntary confession was made, you are the exclusive judges as to whether or not the confession was true; and in deciding that question you should consider all the circumstances connected with the making of the statement, as shown by the evidence. But even if you should find that a confession was false, either entirely or in part, it remains, nevertheless evidence for your consideration, to be given such significance as your judgment may determine under instructions.'
We are not in accord with appellant's contention that by the foregoing language the jury was told that if they believed appellant had lied to the officers and market manager, the fact that she had lied tended in some manner to some degree to prove her guilt. The questioned language in the challenged instruction taken in connection with other parts of the same simply told the jurors that once they had determined that the confession was voluntarily made, it was in evidence to be considered by them in determining the true facts. Like all other evidence before them the jury was authorized to believe it or disbelieve it, and in so doing to assign it whatever weight they might see fit to give it. Confessions, standing as they do upon the same footing as other evidence, are to be weighed by the jury in the same manner. All parts are not necessarily entitled to the same credit and the jury may believe a part and reject the remainder of a confession, or may reject it in its entirety. Guilty persons sometimes make false confessions from various motives but the fact that a jury finds a confession to be false does not necessarily imply that an accused is innocent. The jury might infer that a confession was falsely made to gain the sympathy of those responsible for the maker's arrest or to otherwise delay or hinder prosecution, or to throw the officers off the scent. False statements made subsequent to the commission of an offense are admissible as indicating a consciousness of guilt. The fact that false statements take the form of a confession does not remove them from the foregoing rule, especially where, as in the instant case, there is ample evidence of guilt independent of the asserted confessions.
The foregoing language in the instruction does not tell the jury that they must, if they find the confession to be false, draw inferences therefrom unfavorable to the appellant, but merely says that the falsehood may be given such significance as the judgment of the jury may determine, leaving it clearly up to the jury as to whether they will consider the falsehood for or against the defendant. Furthermore, we fail to perceive wherein prejudice ensued to appellant from the instruction as given where, as here, other and independent evidence so clearly points to her guilt. She did not take the witness stand to deny the evidence presented against her or to brand the confessions as false. Manifestly, that part of the instruction which allowed the jury to consider the possibility of the falsity of the confessions and to draw an inference therefrom either favorable or unfavorable to appellant, could not have prejudiced her substantial rights.
The case of People v. Ford, 89 Cal.App.2d 467, 200 P.2d 867, relied upon by appellant, is easily distinguishable from the case at bar. In the cited case the only evidence before the jury connecting the defendant with the commission of the crime was that found in his own confession, and if that fell, the case against him fell with it; consequently, if, under the instruction as given, the jurors concluded that his confession was false, there was no inference left for them to draw, which, in connection with other evidence in the case, would place the guilt of the crime upon the defendant. But in the instant case, a clear-cut case was made out against the defendant independent of her confessions. Also, the case of People v. Ford, supra, differs from the one now before us since the accused therein took the witness stand, and while admitting that he made the confession, denied the truth of it.
With regard to two other instructions complained of by appellant numbered 29-A and 29-B, she cites no argument, points or authorities to show wherein they were improperly given. An examination of them discloses that they are correct statements of the law applicable to the issues tendered in the present cause. And it has repeatedly been held by the appellate courts of this state that when an appellant fails to cite any authorities or present any arguments to support a claim that certain instructions were improperly given, the court is not called upon to give consideration thereto. People v. Black, 45 Cal.App.2d 87, 98, 113 P.2d 746; People v. O'Connor, 44 Cal.App.2d 301, 302, 112 P.2d 279; People v. Burke, 43 Cal.App.2d 316, 318, 110 P.2d 685; People v. Buenaflore, 40 Cal.App.2d 713, 720, 105 P.2d 621; People v. Richardson, 74 Cal.App.2d 528, 532, 169 P.2d 44.
Equally without merit is appellant's contention that the trial court erred in instructing the jury on impeachment and credibility of witnesses. These instructions merely set up guides to be followed by the jury, and for the most part, are specifically set forth in sections 1847, 2051, 2052, and 2061 of the Code of Civil Procedure. In no way did these instructions tell the jury whom to believe or what to believe, nor did they, as contended by appellant, tell the jury to accept the testimony of an impeached witness. It is not the law of this state that an impeached witness is a totally discredited witness. While the jury may disregard the testimony of a witness who has been impeached, they are not necessarily required so to do. They possess the power to accept or reject such evidence in whole or in part. That is what the authorities hold and that is exactly what the challenged instructions say. People v. Ross, 46 Cal.App.2d 385, 397-398, 116 P.2d 81; People v. Holman, 72 Cal.App.2d 75, 89-90, 164 P.2d 297; People v. Duenas, 74 Cal.App.2d 846, 851-852, 169 P.2d 987. Evidence which appellant assumes constituted impeachment may not have been so regarded by the triers of fact.
It was not error for the court to instruct the jury on flight in language practically the same as that contained in section 1127c of the Penal Code. Appellant asserts that the instruction should not have been given because there was no evidence of flight in this case. The instruction did not purport to tell the jury that there was evidence of flight but merely advised them of the effect they might give to such evidence if it was found by them that there was flight. It must be assumed if not presumed that the jury followed the law as presented, and if flight was not proved, it was not considered in reaching a verdict. A reading of the testimony hereinbefore narrated, and not necessary to here repeat, immediately suggests the propriety of giving an instruction on flight. Suffice it to say there was testimony that appellant was seen placing her hand twice in the cash register of a store and then into her hand bag and immediately leaving the store and when accosted by the store manager, refusing to return to the store with him but continuing on her way into the nearby May Company store until the manager threatened to call the police. Such conduct might well be characterized as immediate flight, first in the absence of an accusation or probability of an accusation, and secondly, as attempted flight after being accosted by the store manager. Such actions upon the part of appellant may well afford persuasive evidence of a consciousness of guilt. Under the facts of this case no other inference can be reasonably drawn from the record than that appellant knew she might be or would be charged with theft. Therefore, she was not prejudiced by the giving of the instruction on flight.
Without argument or citation of authorities appellant insists that the court fell into error in refusing to give certain instructions proposed by her. Notwithstanding the rule hereinbefore referred to with reference to an appellant who fails to cite any authorities or make any argument in support of grounds urged for reversal, we have examined the instructions in question and are satisfied that they were properly refused for the reason that the principles of law therein enunciated were fully and fairly covered by other instructions, that they dealt with questions not within the province of the jury or referred to principles of law not applicable to the issues framed by the information or raised by the evidence.
Finally, appellant contends that the claimed error of instructions concerning impeachment was 'accentuated by the error of the trial court in attempting to interpolate before the jury the effect of evidence offered by way of impeachment.'
In support of this claim appellant refers to an occasion during the trial when the witness Morris S. Chalphon, who observed appellant while she was at the cash register, was on the witness stand. The record reflects the following:
'Q. (By Mr. Lavine, appellant's counsel) Now, at this preliminary hearing, this testimony you read this morning, you were asked this question
'Mr. Carr: Page?
'Mr. Lavine: Page 6, Line 13: (Reading.) 'Q. Could you see whether or not she took anything out of there? A. It was impossible from that particular point to see because of the position that I was sitting and the amount of paraphernalia and everything on the shelves at this Von's Market. I mean I couldn't see anything.'
'The Witness: May I see that, please?
'Mr. Lavine: Yes. Were you asked those questions?
'The Court: Objection sustained to the question, it relates to what was taken out of the cash drawer. He has testified here he didn't see what was taken out of the cash drawer.
'The Witness: It says here in the question
'The Court: Just a minute, please.
'Mr. Lavine: Well, I think it goes a little farther, your Honor.
'The Court: If you ignore the question, yes. Attention was directed to what he saw taken out of the cash drawer. That was his testimony when he said, 'I couldn't see anything.' That naturally means couldn't see anything taken out of the cash drawer.'
It should here be noted that the foregoing comments of the trial judge were not objected to by appellant, assigned as misconduct by her, nor was the judge requested to admonish the jury to disregard them. It has repeatedly been held that where no objection was taken at the time of the occurrence in the trial court it is too late to urge it as error for the first time on the appeal. People v. Ottey, 5 Cal.2d 714, 721, 56 P.2d 193; People v. O'Brand, 92 Cal.App.2d 752, 207 P.2d 1083. However, from an examination of the record we perceive no prejudicial error in the conduct of the trial judge. Obviously, his remarks were made in the interests of a proper determination of the case and to that end, it was his right to make comment on the testimony to obviate any confusion in the minds of the jury and to prevent them from being misled. At no time did the trial judge comment upon his belief as to the guilt or innocence of appellant. The latter's criticism is squarely answered by the provisions of Article VI, Section 19 of the Constitution of California People v. Gosden, 6 Cal.2d 14, 28, 29, 56 P.2d 211.
For the foregoing reasons, the judgment is affirmed.
DORAN and DRAPEAU, JJ., concur. --------------- * Subsequent opinion 219 P.2d 789.