Cohen v. Superior Court of Los Angeles County

• Decision Date: 13 August 1959
• Citation: 173 Cal.App.2d 61,343 P.2d 286
• Court: California Court of Appeals Court of Appeals
• Parties: Mickey COHEN, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, State of California, Respondent. Civ. 24035.

Page 286

343 P.2d 286

173 Cal.App.2d 61

Mickey COHEN, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, State of California, Respondent.

Civ. 24035.

District Court of Appeal, Second District, Division 1, California.

Aug. 13, 1959.

Cornell Ridley, Los Angeles, for appellant.

Harold W. Kennedy, County Counsel, Wm. E. Lamoreaux, Asst. County Counsel, Edward A. Nugent, Deputy County Counsel, Los Angeles, for respondent.

FOURT, Justice.

Petitioner in his brief has set forth that one Arthur Black brought an action against Mickey Cohen in tort 'for an alleged assault and battery asking for punitive and exemplary damages'. At the trial of said action on July 22, 1959 the petitioner, Mickey Cohen, was called as a witness for the plaintiff under section 2055, Code of Civil Procedure. Without going into any matters which would disclose whether there was any merit to the action so far as the witness was concerned, counsel for the plaintiff started to question petitioner with reference to the wealth and mode of living of the petitioner which, if the case involved exemplary damages, was probably relevant.

The minutes of the clerk for July 22 set forth among other things that counsel 'stipulate as to the reputation of defendant' and thereafter the following:

'Arthur Strock, counsel for plaintiff, asked the defendant the following question:

"You came here in an automobile, didn't you, Mr. Cohen?'

'Witness: 'I refuse to answer on the ground that it may tend to incriminate me.'

'After considerable discussion between counsel and the court and conference by defendant's counsel with his client out of the presence of the court but while court was in session, the defendant's counsel made the following statement:

"May we withdraw the objection?'

'Witness: 'Did I come here in an automobile?'

'Mr. Strock: 'Yes.'

'Witness: 'Yes.'

'Mr. Strock: 'Was it your automobile?'

'Witness: 'No.'

'Mr. Strock: 'What kind of an automobile was it?'

'Witness: 'A Cadillac.'

'Mr. Strock: 'As a matter of fact, it is an Eldorado, a brougham, that costs around $14,000.00--is that right?'

'Witness: 'That is right.'

'Mr. Strock: 'What kind of a model Cadillac was it?'

'Witness: 'It's an Eldorado, a convertible, not a brougham at all.'

'Mr. Strock: 'Who owns it?'

'Mr. Ridley, defendant's counsel, then stated: 'Just a minute.'

'The Court then stated: 'Counsel, you can feel free if you want to consult with your client away from me--feel free to talk to him if you want to.'

'After this conference the Witness then stated: 'I refuse to answer on the ground that it may tend to incriminate me.'

'The Court then told the witness that either he must answer the question or the Court would place him in contempt of court for failure to answer.

'Thereupon, defendant's counsel stated verbally his contentions as to why he had advised the witness to refrain from answering the question.

'Thereupon, defendant's counsel stated to the Court, in substance, that in his opinion the answering of said question would tend to incriminate the defendant and subject him to federal prosecution for possible federal tax evasion and that he was advising the witness to refrain from answering the above question.

'The Court then stated: 'I will stand by my ruling.'

'Thereafter, Mr. Ridley, counsel for defendant, asked for a 5-minute recess in which possible questions could be discussed either by himself with plaintiff's counsel or by Mr. Ridley with his client.

'Upon court reconvening, Mr. Ridley stated in substance that not only is there an investigation by the Federal Bureau of Internal Revenue against the defendant but that he had also received notice that he is on call to Washington for another investigation.

'The Court then stated: 'Now is this with respect to alleged income tax evasion?'

'Mr. Ridley: 'No, Your Honor, I think that is before the McClellan Committee there, to the best of my knowledge.'

'Mr. Ridley then continued: 'The third one is the one that is being carried on at the state level by the State Senate Crime Committee, and there is currently an action pending, I believe, in Division 28; is that right, Mr. Cohen?'

'Thereafter, among other things, the following took place: Counsel for plaintiff propounded a series of questions to the witness, which are hereinafter enumerated, and to these questions the defendant stated that he refused to answer on the advice of counsel and because the same would incriminate him and violate his federal constitutional rights. (These questions that the defendant refused to answer were propounded after the witness had stated where he lived and had given the address of the house):

'Mr. Strock: 'Do you own that house, or rent it, or is it loaned to you?'

'Mr. Ridley: 'I think he would refuse to answer that.'

'Mr. Strock: 'And if he were to answer that he rented I would ask how much rent he paid, to which there would have been an objection.'

'The Court: 'Would there be an objection?'

'Mr. Ridley: 'There would be an objection.'

'Mr. Strock: 'Then I would ask him if that included furniture, or was unfurnished.'

'Mr. Ridley: 'There would be an objection.'

'Mr. Strock: 'Then I would ask him if he employed any servant or servants and whether part-time or full-time and how much he paid them.'

'Mr. Ridley: 'There would be an objection to that.'

'Mr. Strock: 'I would ask him what restaurant he attended during his particular month.'

'Mr. Strock: 'I would ask him what the extent of his travels were during the past year and where he stayed?'

'Mr. Ridley: 'There would be an objection to that.'

'Mr. Strock: '* * * and airplane lines and whether he went tourist or deluxe flight.'

'Mr. Ridley: 'There would be an objection to that.'

'Mr. Ridley: 'If Your Honor please, this is the very point at issue.'

'The Court then stated in part as follows: 'I understand that you are advising him--correct me if I am misstating you--to refuse to answer any of the questions underscored in red (these are the questions above set forth) that have just been propounded by plaintiff's counsel on the ground that answers thereto, or any of them, would tend to jeopardize and incriminate the witness from a constitutional standpoint, is that correct?'

'Thereafter, among other things, the defendant's counsel stated: 'I would like to say that would be the basis on which he would be answering, even though--and I want to insist he take my advice and not answer prior to the time because I feel he doesn't have, and I have got to take any responsibility.'

'The Court: 'Are you ready for a ruling on that matter, Mr. Ridley?'

'Mr. Ridley: 'Yes, Your Honor.'

'The Court then stated to the witness: 'I instruct the witness to answer the questions, and each of them, now. Are you refusing to answer the questions, and each of them, Mr. Cohen, on the advice of your counsel?'

'Mr. Ridley: 'Yes, I am advising him to refuse to answer those questions on the ground that they may tend to incriminate him.'

'The Court: 'Will you advise me you won't answer the questions, Mr. Cohen, so we can get it in the transcript?'

'Witness: 'Well, I don't like to say to Your Honor that I won't.'

'The Court: 'I am not asking you that.'

'Witness: 'I don't say I don't want to answer them, I refuse to answer them on advice of my attorney.'

'The Court: 'I find the defendant in contempt of court for failing to answer the questions, or any of them, and impose a sentence of five days in the County Jail.''

The order of commitment to the county jail for contempt of court is substantially the same as the minute entry.

The California Constitution of 1849, section 8 of Article I provided in part: 'No person shall * * * be compelled, in any criminal case, to be a witness aaginst himself * * *.' In the Constitution of 1879 the clause was renumbered as Article I, section 13.

In 1872 the legislature adopted section 2065, Code of Civil Procedure, which reads in part as follows: 'A witness must answer questions legal and pertinent to the matter in issue * * * but he need not give an answer which will have a tendency to subject him to punishment for a felony * * *'. The Fifth Amendment to the Constitution of the United States provides in part: 'No person shall be * * * compelled in any criminal case to be a witness against himself * * *.'

The main question involved is how far shall the privilege against self-incrimination be extended. We are of the belief that under all of the circumstances of this case the trial court erred and the petitioner should be discharged.

It must be noted at the outset that none of the pleadings of the case which was on trial are before us. There is no reporter's transcript of what was said by the parties and the judge other than that which is heretofore set forth as the mintes of the clerk and the commitment by the judge.

The Fifth Amendment to the United States Constitution is not applicable to the proceedings here, this being entirely a state proceeding (see Twining v. State of New Jersey, 1908, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97). However, the interpretations placed upon the language of the Fifth Amendment by the federal courts is and should be very persuasive as to what interpretation we place upon the language of our state law which is in effect substantially the same as the Fifth Amendment.

Also, it must be remembered that testimony which might incriminate under the federal law would not necessarily incriminate under the state law; indeed it has happened that a state would not treat as privileged, testimony which would incriminate under the federal law. See State v. Arnold, Ohio Com.Pl., 124 N.E.2d 473. Application of Herlands, 204 Misc. 373, 124 N.Y.S.2d 402.

The record before us, excepting for the one sentence in the petitioner's brief, fails to disclose anything with reference to the nature of the action which was being tried by the court. If in fact the action was a tort action for assault and battery, and exemplary damages were...