People v. Carella

• Decision Date: 11 April 1961
• Docket Number: Cr. 1545
• Citation: 191 Cal.App.2d 115,12 Cal.Rptr. 446
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Vito CARELLA, Edward Krausnick, Margery Buxton, et al., Defendants and Appellants.

Page 446

12 Cal.Rptr. 446

191 Cal.App.2d 115

PEOPLE of the State of California, Plaintiff and Respondent, v. Vito CARELLA, Edward Krausnick, Margery Buxton, et al., Defendants and Appellants.

Cr. 1545.

District Court of Appeal, Fourth District, California.

April 11, 1961.

Rehearing Denied May 9, 1961.

Hearing Denied June 6, 1961.

Samuel Hurwitz, Orange, for appellants.

Stanley Mosk, Atty. Gen., George W. Kell, Deputy Atty. Gen., for respondent.

COUGHLIN, Justice.

The defendants Carella, Krausnick and Buxton, who are the appellants herein, by indictment were charged with felonies involving bookmaking; Count One in the indictment charged all of the defendants with a conspiracy to violate Section 337a of the Penal Code, i. e., engaging in bookmaking, keeping a room for gambling paraphernalia and the making of bets, receiving and holding money in connection with wagers, recording and registering bets and wagers upon certain contests, and accepting bets and wagers on certain contests; Counts Two and Three respectively charged the defendants Carella and Krausnick with engaging in bookmaking and with keeping and occupying a place with gambling paraphernalia for the purpose of recording and registering bets, which offenses allegedly occurred on July 3, 1958; Count Four charged the defendant Carella with recording a bet on a horse race on July 2, 1958; and Count Five charged the defendant Krausnick with recording a bet on the results of a horse race on July 3, 1958. The defendants were tried by the court without a jury; did not testify; and were found guilty on all counts except Count Four which charged Carella with bookmaking on July 2, 1958. A motion for a new trial was made and denied. Thereafter each defendant was sentenced to the State prison for the term prescribed by law, with the sentences to run concurrently; they applied for probation; their application was granted; and the sentences were suspended upon condition that they serve three months in the county jail. The defendants appealed from the judgment entered and from the order denying their motion for a new trial.

The issues on appeal concern primarily: (1) the effect of the failure of the indictment to have indorsed thereon all of the names of the witnesses interrogated by the grand jury and the failure to supply the defendants, before trial, with a transcript of all of the testimony presented to that body; (2) a consideration of the admissibility and sufficiency of evidence to establish reasonable cause for an arrest and search without a warrant; (3) the alleged unreasonable manner in which that search was conducted and the admissibility of evidence obtained thereby; (4) an alleged denial of the right of the defendants to inspect records in police custody; (5) the admissibility of testimony concerning communications over the defendant Buxton's telephone; (6) the alleged erroneous use of that testimony; and (7) alleged error in failing to exclude certain persons from the courtroom upon the request of the defendants.

Alleged Insufficiency of Indictment and Transcript

The grand jury presented the subject indictment to the Superior Court of Orange County on August 14, 1958. Indorsed thereon were the names of 15 witnesses. In due course, and prior to trial, the defendants were served with two transcripts purporting to relate the proceedings had before the grand jury. During the course of trial it was disclosed that the names of all witnesses who had testified before the grand jury were not indorsed on the indictment, and that the transcripts theretofore furnished the defendants did not contain a transcript of the testimony of all of the witnesses that testified before that body. Thereafter the court ordered that a transcript of all of the testimony presented to the grand jury, not theretofore transcribed, should be prepared; the order was complied with; and transcripts containing the testimony of 28 additional witnesses, including the testimony of a defendant named Greiner, who was found not guilty, and also that of the defendant Carella, were furnished the defendants. The aforesaid disclosure came about during the fourth day of trial, i. e., on March 4, 1958, when the attorney for the defendants stated to the court: 'Now, if the Court please, if I may be allowed to, in the testimony of Mr. Oxandaboure yesterday there was one of the witnesses before the Grand Jury whose testimony isn't in the transcript and we believe that there are also others who testified before the Grand Jury and their testimony is not in the transcript. I am not certain who all of those people were but I think we should be furnished with the testimony of all of the witnesses who testified on this matter before the Grand Jury.' The next day, i. e., March 5, the attorney for defendants again referred to this matter and stated to the court: 'There are also others who testified before the Grand Jury in connection with this matter and their testimony is not in this Grand Jury transcript. I am not certain who all of these people are but I think we should have an order requiring that we be furnished with a copy of the testimony of all the witnesses who testified in this matter before the Grand Jury.' On this date the trial judge called the secretary of the grand jury, which had been discharged the day previously, and asked her whether she had a list of the witnesses in question; indicated that he was not sure that he had a legal right to have her tell him the names of these witnesses over the telephone; but, upon determining that she had the minutes of the grand jury containing the names in question, asked her not to destroy them, and told her that he would let her know if they were needed. Previously the grand jury had decided that their minutes should be destroyed. The secretary expected the judge to call her back forthwith; he did not do so; and the next day she destroyed the minutes. The case was recessed until March 9th. In the meantime the stenographic reporter who reported the grand jury proceedings had been contacted, and, as heretofore noted, transcribed the testimony not theretofore transcribed. A partial transcript of this additional testimony was given counsel for the defendants on the morning of March 9th with the information that the balance thereof would be furnished the next day. Thereupon the defendant moved to dismiss the action. The motion was denied, but in response to comments by the defendants' attorney which were made in the course of his argument in support of the motion, the court indicated that it would order the reappearance of a witness who previously had testified in the case and also before the grand jury, but whose name was not indorsed on the indictment and whose testimony before the grand jury theretofore had not been transcribed. The next day, i. e., March 10th, the secretary of the grand jury and the stenographic reporter who had reported the proceedings before the grand jury were examined by the trial judge and counsel. From this testimony it appeared that the minutes of the grand jury had been destroyed; that the investigation in question had been conducted before the grand jury on July 17, 18, 23, 24 and 31; that the original transcript contained the testimony of all of the witnesses who had appeared on July 31st, and of some of the witnesses appearing on the other days; that only one reporter had reported the proceedings on July 17, 18, 23 and 24; that the original and supplemental transcripts heretofore referred to were prepared by her and contained all of the testimony given before the grand jury on all of these days; that, before preparing the original transcript, she had asked the deputy district attorney in charge of the case what to type up and he told her to transcribe the testimony of certain named witnesses, being those whose testimony appeared in that transcript. At the conclusion of this testimony the defendants renewed their motion to dismiss. Relying upon the decisions in People v. Delhantie, 163 Cal. 461, 125 P. 1066, and People v. Cowen, 41 Cal.App.2d 824, 107 P.2d 659, the trial court ruled that a dismissal would not be proper and denied the motion Thereupon the defendants asked that the case be continued for 10 days; this motion was granted; and the case was continued to March 23, i. e., 13 days. On the latter date, at the request of defendants, because of the illness of their counsel the matter was continued until March 25th. On this date the defendants moved for a mistrial, indicating an intention to move for a dismissal pursuant to the provisions of Section 995 of the Penal Code upon the ground of lack of probable cause, contending that the information contained in the supplemental transcripts justified the making of such a motion. In ruling thereon, among other things, the trial court indicated that the existence of probable cause satisfactorily appeared. The motion for a mistrial was denied.

Section 943 of the Penal Code provides that:

'* * * the names of the witnesses examined before the Grand Jury * * * must be inserted at the foot of the indictment, or indorsed thereon, before it is presented to the Court.'

The purpose of these provisions is 'first, to inform the party who are his accusers; and second, to inform the prosecutor who are the witnesses.' People v. Freeland, 6 Cal. 96, 98; People v. Northey, 77 Cal. 618, 629, 19 P. 865, 20 P. 129. A failure so to insert or indorse the names of the witnesses does not render the indictment void or require that it be set aside. People v. Cowen, supra, 41 Cal.App.2d 824, 826, 107 P.2d 659. Prior to 1927 such a failure was one of the grounds prescribed in Section 995 of the Penal Code for setting aside an indictment (Stats.1911, ch. 256, p. 435), but in that year, by amendment, this ground was eliminated (Stats.1927, c. 854, p. 1756), and in lieu thereof Section 995a was adopted which now provides:

'If the names of the witnesses examined before the grand jury are not...