People v. Bell, Cr. 3048

• Decision Date: 20 December 1955
• Docket Number: Cr. 3048
• Citation: 291 P.2d 150,138 Cal.App.2d 7
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Margaret BELL, Defendant and Appellant.

Page 150

291 P.2d 150

138 Cal.App.2d 7

The PEOPLE of the State of California, Plaintiff and Respondent, v. Margaret BELL, Defendant and Appellant.

Cr. 3048.

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

Dec. 20, 1955.

Rehearing Denied Jan. 4, 1956.

Leslie C. Gillen, Gregory S. Stout, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., William M. Bennett, Deputy Atty. Gen., for respondent.

PETERS, Presiding Justice.

Defendant Margaret Bell was charged with pandering, 1 Deering's Gen.Laws, Act No. 1906, Stats. of 1911, p. 9, Chap. 14, now § 266i Pen.Code, in that from July, 1951, to January, 1952, she feloniously procured Clarice Strange to act as an immate in a house of prostitution. She was found guilty by a jury. She appeals from the judgment of conviction and from the order denying her motion for a new trial.

The sufficiency of the evidence to sustain the conviction is not challenged. The evidence, however, must be referred to in order to consider the points raised by appellant.

Clarice Strange testified that in the middle of 1951, when she was a minor, appellant employed her to act as a prostitute in the Annex Hotel in San Francisco; that she acted as a prostitute in that hotel from July, 1951, to December of that year, working for appellant; that the method of operation was that prospective clients were assigned a room in the hotel; that one of several women, including defendant, then would tell the witness the number of the room; that she would then go to that room, collect the standard price of $5, turn it over to one of several women, including defendant, and then go back to the client; that she was furnished a card which was punched for each act of prostitution; that each night she settled with defendant, she receiving 50 per cent of the proceeds, less 10 per cent for board, and defendant receiving the other 50 per cent; that during part of the period she worked at the hotel other girls also worked there; that she left the Annex Hotel in December, 1951. Under cross-examination the prosecuting witness testified that, from June to December, 1951, she occasionally used marijuana, and that from August, 1951, to the end of the year she used heroin, toward the end of the period, at least once a day. During this cross-examination, the trial court consistently ruled that it would permit questions relevant as to whether the witness' power of perception or power of narration were affected by the use of the narcotic. Such questions were asked. The witness testified that she was not bewildered, intoxicated or confused by the use of the narcotic, nor did it make her feel depressed, nor did it make things look 'shadowy' to her, nor did it make her forget things, nor did it make her sleepy.

The witness Joanne Shaw testified that she was employed by defendant as a prostitute at the Annex Hotel in December of 1952. This was approximately one year after Clarice Strange had left that hotel. Joanne Shaw then testified, over objection, that the procedures adopted by defendant in operation of the hotel, in keeping track of the acts of prostitution, and in the method of payment were identical with the procedures described by Clarice Strange.

One of the major controversies at the trial and on this appeal centers around the limitations imposed by the trial court on the testimony of Dr. Shaw, a licensed physician, and medical examiner for the San Francisco City Prison, who was called as a witness by the defense. He testified that in the course of his professional duties at the jail he had, over the years, examined over 3,000 narcotic addicts, and that, in his opinion, continued use of heroin would cause mental deterioration. He was prevented from testifying as to the effect of heroin on addicts as to loss of efficiency, ambition, and energy, and the tendency of addicts generally to become increasingly untrustworthy and untruthful, and their tendency to lose their judgment and ability to adjust to social situations. The court, time and time again, told defense counsel that it would permit questions asking what effect heroin used in the quantities testified to by the witness Strange had on the perception, memory and mental confusion of the user. He was allowed to and did testify that a person using heroin to the extent of Miss Strange would, in his opinion, have recognizable mental and moral deterioration; that her condition would be one of confused dullness. The court consistently refused to permit the witness to answer the question as to whether this addiction would have any effect on the witness' ability to tell the truth.

The defendant did not take the stand. The jury brought in a verdict of guilty, defendant's motion for a new trial was denied, and judgment was entered on the verdict. Defendant appeals from the judgment and from the order denying the motion for a new trial.

One of the major contentions of appellant is that the trial court committed prejudicial error in limiting Dr. Shaw's testimony, in effect, to his opinion as to what effect addiction would have on memory and perception and ability to narrate, but preventing testimony as to the effect of addiction on veracity. Appellant claims that the rule in other states is that when there is testimony a witness is an addict, experts may be asked, in order to impeach the witness, if addiction affects the veracity of addicts.

It is somewhat difficult to ascertain from the cases cited by appellant, and from those we have found, just what are the limits on expert testimony as to the effect of addiction. The cases are collected in a note by William G. Hale in 16 So.Cal.L.Rev. 333. From the cases there cited, it appears that many of the authorities hold that evidence of drug addiction of a witness is admissible either on cross-examination or by way of impeachment through an expert to show that the powers of perception, memory and narration of the witness have been impaired. The trial court allowed such testimony in the instant case. The note also collects a series of cases holding that evidence of addiction should be excluded entirely, for the reason that such examination tends to develop a purely collateral matter.

The cases are divided on the question as to whether such evidence is admissible to impeach the witness' veracity. Some cases permit such evidence. State v. Fong Loon, 29 Idaho 248, 158 P. 233, L.R.A.1916F, 1198; State v. Concannon, 25 Wash. 327, 65 P. 534; Effinger v. Effinger, 48 Nev. 205, 239 P. 801; Lankford v. Tombari, Wash., 213 P.2d 627; Anderson v. State, 65 Tex.Cr.R. 365, 144 S.W. 281. Other cases hold that such evidence is inadmissible. Kelly v. Maryland Casualty Co., D.C., 45 F.2d 782; Maryland Casualty Co. v. Kelly, 4 Cir., 45 F.2d 788; Weaver v. United States, 8 Cir., 111 F.2d 603; State v. Robinson, 12 Wash. 491, 41 P. 884.

In this state, whatever the rule may be in other states, the problem is partially, at least, covered by statute.

Section 2051 of the Code of Civil Procedure provides that a witness may be impeached by 'contradictory evidence or by evidence that his general reputation for truth, honesty, or integrity is bad,' or by evidence of conviction of a felony. Section 2052 provides that a witness may be impeached by evidence of prior inconsistent statements. The evidence here involved does not, of course, fall into any of the classes there enumerated. The courts have frequently held that this statutory enumeration is exclusive of other methods of impeachment. People v. Sprado, 72 Cal.App. 582, 237 P. 1087; People v. Holman, 72 Cal.App.2d 75, 164 P.2d 297; People v. Harrison, 18 Cal.App. 288, 123 P. 200; People v. Harlan, 133 Cal. 16, 65 P. 9; People v. Mackey, 58 Cal.App. 123, 208 P. 135. However, California has recognized that there is at least one exception, and that is that a witness may be impeached on cross-examination, in addition to the enumerated methods, by evidence that he is affected by mental disease or mental derangement that affects his powers of perception, memory or narration. People v. Champion, 193 Cal. 441, 225 P. 278; Ah Tong v. Earle Fruit Co., 112 Cal. 679, 45 P. 7; People v. La Rue, 62 Cal.App. 276, 216 P. 627. In People v. Dye, 81 Cal.App.2d 952, at page 963, 185 P.2d 624, at page 631, the limitations on this exception are stated as follows: 'As for the mental condition of the witness the court said in People v. Champion, 193 Cal. 441, 448, 225 P. 278, 281: 'A witness not affected by mental disease or mental derangement may be impeached only in the manner and for the reasons provided in sections 2051 and 2052 of the Code of Civil Procedure. * * *' * * * Appellant argues that the jury had a right to consider the mental condition of Hernandez, which is doubtless true * * *. But it does not follow that appellant was entitled to produce a witness to testify as to his opinion that the boy was mentally deficient and emotionally unstable. As said in People v. Champion, supra, this must be developed by cross-examination.' (Italics added.)

Thus, even if addiction does cause a general predilection towards untruthfulness (a fact not supported by substantial medical authority--see 16 So.Cal.L.Rev. 333, 334), the witness could be impeached in this respect in this state only on cross-examination, and not by the production of other witnesses, experts or otherwise. It follows that the restrictions placed on the examination of Dr. Shaw by the trial...