People v. Brooksher

• Decision Date: 06 July 1955
• Docket Number: Cr. 3086
• Citation: People v. Brooksher, 134 Cal.App.2d 266, 285 P.2d 298 (Cal. App. 1955)
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Fred BROOKSHER, William Duarte, Mary Humphrey, also known as Babe Humphrey, Anthony Ferreira, also known as Handlebar Ferreira and Louis Pagliaro, also known as Gee Gee Pagliaro, Defendants, Mary Humphrey and Anthony Ferreira, Defendants and Appellants.

Page 298

285 P.2d 298

134 Cal.App.2d 266

PEOPLE of the State of California, Plaintiff and Respondent, v. Fred BROOKSHER, William Duarte, Mary Humphrey, also known as Babe Humphrey, Anthony Ferreira, also known as Handlebar Ferreira and Louis Pagliaro, also known as Gee Gee Pagliaro, Defendants Mary Humphrey and Anthony Ferreira, Defendants and Appellants.

Cr. 3086.

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

July 6, 1955.

Mark C. Cali, Henry Mariani, San Jose, for appellants.

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

NOURSE, Presiding Justice.

The five defendnats were charged in one information with pandering, Section 266i of the Penal Code, Added by Stats.1953, ch. 32, § 4, and conspiring to contribute to the delinquency of a girl of 14 years. Defendants Duarte and Brooksher were both charged with statutory rape. All defendants were tried jointly to a jury. Separate verdicts were returned. Brooksher pleaded guilty on the charge of rape and on the charge of pandering not guilty. He was found guilty on the conspiracy charge. Duarte was found guilty of rape. He and the remaining defendants were all found guilty of both pandering and contributing to the minor's delinquency. Wel. & Inst. Code Section 702. Defendants Humphrey and Ferreira alone have appealed.

Defendant Humphrey, referred to in the testimony as 'Babe', and Ferreira were living together in adultery while she was either practicing prostitution or engaged in procuring for the benefit of others. They were introduced to the prosecutrix by Brooksher who gave 'Babe' $25 with which she took the prosecutrix to an out of town store and purchased for her a complete outfit of underclothes and a dress. On this occasion 'Babe' gave the young girl pertinent advice as to how she could best carry on the trade as a prostitute. The testimony of the prosecutrix as to the interest and the activities of these two appealing defendants was clear and directly to the issues. Neither one of these defendants took the stand as witnesses, and neither one offered any competent evidence in their defense. The case, therefore, as it comes to us, is one where the verdict is supported by competent substantial evidence.

The first ground urged by these appellants is that the trial court erred in permitting a police witness to testify as to matters he had learned from a microphone installed in the Pagliaro home. The testimony was not detrimental to these appellants. It concerned matters relating to another distinct crime in which the police thought the Pagliaro was involved. The recordings were so incomplete and unintelligible that the trial court refused to admit them in evidence and instructed the jury to disregard them. The witness was permitted to give some conclusions based partly on these recordings--but not in any sense detrimental to, or involving these appealing defendants. Possibly for that reason neither of these defendants objected to the testimony. In any event, having failed to object, they cannot claim error for the first time on appeal. People v. Millum, 42 Cal.2d 524, 526, 267 P.2d 1039; People v. Dessauer, 38 Cal.2d 547, 552, 241 P.2d 238; People v. McMonigle, 29 Cal.2d 730, 743, 177 P.2d 745. The rule of these cases has not been changed by the recent decisions in People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, and People v. Berger, 44 Cal.2d 459, 282 P.2d 509. In those cases timely objection was made to the admission of the evidence allegedly obtained illegally. Here no such objection was made. The rule of the Millum and similar cases is fully established and followed in the United States Courts. See Segurola v. United States, 275 U.S. 106, 112, 48 S.Ct. 77, 72 L.Ed. 186, 190.

The second ground urged is that the district arrorney was guilty of misconduct in his closing argument to the jury--particularly in...