People v. Irvine

• Decision Date: 02 October 1952
• Docket Number: Cr. 4857
• Citation: 113 Cal.App.2d 460,248 P.2d 502
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. IRVINE.

Page 502

248 P.2d 502

113 Cal.App.2d 460

PEOPLE v. IRVINE.

Cr. 4857.

District Court of Appeal, Second District, Division 2, California.

Oct. 2, 1952.

Rehearing Denied Oct. 15, 1952.

Hearing Denied Oct. 30, 1952.

A. H. McConnell, Long Beach, for appellant.

Edmund G. Brown, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

McCOMB, Justice.

From a judgment of guilty of violating (1) subdivision 1, SECTION 337A OF THE PENAL CODE, (2)¹ subdivision 2, section 337a, Penal Code, and (3) subdivision 3, section 337a, Penal Code, after trial before a jury, defendant appeals. There is also an appeal from the order denying his motion for a new trial.

Facts: On November 15, 1951, at about 11:30 a. m., Officer Calori saw an automobile which was registered to Mr. Lippe parked at the corner of Chestnut and Florista Streets in Los Alamitos. Across the street was a white house. The officer watched the car and house until 5:30 p. m., at which time a man came out of the house and drove to Seventh and Ximeno streets in Long Beach. On November 28, 1951, Mr. Lippe drove to the home of defendant at 3916 East Second Street and entered the house. He did the same thing on November 29.

On December 1, 1951, Mr. Mason, a recording engineer, went to the premises at 3916 East Second Street, Long Beach, and during defendant's absence entered his house, installed a microphone and connected it with a recording machine and loud speaker in the garage of the house. Thereafter the recording engineer made various adjustments in the equipment and on several occasions the officers heard Mr. Lippe and defendant discussing horse racing, and receiving and placing bets over the telephone.

On January 3 and 4, 1952, a Mr. Curti entered defendant's home. On January 5th, police officers stopped Curti's car and while they were searching Mr. Curti, Officer Jacobson scattered crystalline powder, which was fluorescent under ultra-violet rays, over various papers in Mr. Curti's car. That same evening over the loud speaker Mr. Curti was heard in defendant's home telling defendant how he had been stopped by the officers. He also discussed the sheets of paper indicating that they were papers showing how much money was owed, due to book-making activities.

Shortly after Mr. Curti left the house Officers Jacobsen and Kennedy entered defendant's home, put him under arrest and searched the premises. They found a number of sheets of paper of the same size, shape and texture as those found in Mr. Curti's car earlier that evening. These papers were put under an ultra-violet light and they showed a greenish purple color, the same color as the powder did which the officer had put on his hands prior to handling the papers in Mr. Curti's car.

The officers asked defendant to put his hands under the violet ray light to see whether they would fluoresce the same as the papers in his home. Under the light his hands had the same color as the papers.

Defendant does not question the sufficiency of the evidence to sustain the finding of guilty on each count, but claims that the court erred:

(1) In the reception of evidence, (a) obtained by the use of the microphone and recording machine which had been placed in defendant's home during his absence without a search warrant, ² (b) that defendant's hands, when placed under an ultra-violet ray had the same greenish fluorescence as the powder which the officer had placed on the papers in Mr. Curti's car, because defendant was coerced into placing his hands under the ultra-violet ray. ³

(2) In instructing the jury as follows:

'You are instructed that any trespass which you may find to have been committed upon the property of defendants, or any of them, is not to enter into your deliberations in weighing the guilt or innocence of these defendants or to be considered by you in any manner whatsoever. That is a matter in which defendants have a separate remedy at law but which has no part in this trial. It is your duty to consider only the evidence which has been admitted for your consideration and determine from such evidence whether the guilt of defendants, or any of them, has been proved, and render your verdict accordingly.'

'You are instructed that you are to consider all evidence which the Court has permitted to be introduced for your consideration, irrespective of the manner by which such evidence has been obtained, and to give to all of such evidence the weight to which you shall find it to be entitled.

'The above instruction refers specifically to the testimony tending to prove that a microphone was placed in the home of defendant Patrick E. Irvine without the knowledge or consent of either the said Patrick E. Irvine or his wife, Mildred Irvine, and then connected by a wire to a distant point where it has been testified a recording machine and a loud speaker were installed and voices originating in the home of defendant Irvine were allegedly heard over the loud speaker and recorded on the recording machine. Such evidence (if you find that it was so obtained) is legally admissible in this State the same as any other competent evidence.' ⁴

Article VI, section 4 1/2 of the Constitution of the State of California reads in part as follows: 'No judgment shall be set aside, or new trial granted, in any case, on the ground of misdirection of the jury, or of the improper admission * * * of evidence * * * unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error compained of has resulted in a miscarriage of justice. * * *' (Italics added.)

We have examined the record and are of the opinion the...