People v. Brown

• Decision Date: 09 March 1959
• Docket Number: Cr. 1398
• Citation: 168 Cal.App.2d 549,336 P.2d 1
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Darrell BROWN, Defendant and Appellant.

Page 1

336 P.2d 1

168 Cal.App.2d 549

PEOPLE of the State of California, Plaintiff and Respondent, v. Darrell BROWN, Defendant and Appellant.

Cr. 1398.

District Court of Appeal, Fourth District, California.

March 9, 1959.

Barton C. Sheela, Jr., San Diego, for appellant.

Edmund G. Brown, Atty. Gen., S. Clark Moore, Deputy Atty. Gen., for respondent.

STONE, Justice pro tem.

An information was filed against defendant Darrell Brown, charging him and a codefendant Richard H. Wessilink with grand theft. The jury found both defendants guilty and the defendant Brown appeals from the judgment of conviction. The defendants were charged with the theft of approximately 600 pounds of lobsters of the value of $424. The lobsters were taken from four receiving tanks belonging to Stanley J. Lewis and Gene Mierlot who, as partners, operated a commercial fishing business. The tanks were located in the kelp beds offshore near Cardiff, California, and were attached to a red or orange buoy which floated on the surface. Sometime prior to January 2, 1958, Brown and his codefendant Wessilink, while they were at sea on a fishing boat, met one Charles Whitney, a San Diego State College student and part-time fisherman. Whitney suggested to Brown and Wessilink that they sell their lobsters to a Mr. Busalacchi of the Union Fish Company in San Diego. On January 2, 1958, appellant and Wessilink arranged through Mr. Busalacchi to have Mr. Whitney meet with them. At the meeting they hired Mr. Whitney and his boat to take them to a position off Cardiff to collect lobsters for a consideration of $50. They met at Mission Bay around 7 p. m. and at that time Mr. Whitney was told that appellant was not going in the boat but would go to Cardiff by automobile. Mr. Whitney, Mr. John Pringle and Wessilink went in Whitney's skiff to an area off Cardiff. They located four receivers attached to red or orange buoys and unloaded two of the receivers into the boat. Mr. Wessilink said he believed there was some trouble on shore so they cut the tie lines to the remaining two receivers and loaded them aboard. Subsequently they unloaded the last two receivers and then threw them overboard. There were a number of undersized lobsters some of which were thrown overboard, although others were placed in sacks and handled in the same manner as the legal sized lobsters. They returned to Mission Bay and removed the sacked lobsters to a vacant lot. Mr. Whitney then called Joseph Busalacchi, owner of the Union Fish Market, and he and his son met defendant Wessilink and Whitney. The lobsters were sold to the Busalacchis and appellant signed a receipt using the name Joe Hogan. On January 3, 1958, Lewis and Mierlot discovered that their lobster receivers were gone and that the rope which had been attached to the receivers had been severed with a knife. Later that month Sergeant King of the Sheriff's office of San Diego County had a conversation with Wessilink and appellant concerning the stolen lobsters and Wessilink stated that a Mr. Cromer had told him that the lobsters had come from Mexico in Mr. Cromer's boat. Wessilink stated that Cromer's boat was in San Pedro so that Cromer was unable to handle the transportation of the lobsters and he sold them to him. Wessilink gave Sergeant King a receipt for the lobsters signed by Bob Cromer. Later examination disclosed that there were indentations on the receipt which showed that on two occasions other writings had been prepared over this receipt and that many of the words in these other writings were the same as those on the receipt, including the signature of Bob Cromer. The defendants did not produce Bob Cromer and an exhaustive search by an investigator for the District Attorney's office failed to show any record of a Robert or Bob Cromer or Cramer.

Appellant specifies four grounds of error, the first being that the court erred in permitting impeachment of a defense witness by cross-examination concerning crimes with which the defendant and the witness had been charged but of which they had not been convicted. The questions asked defense witness Pangle concerned his previous arrest jointly with appellant for the illegal possession of lobsters. The witness admitted the arrest but up to the time of the trial, neither the witness nor the appellant had been convicted of the offense. Conviction of the offense is not always a prerequisite to the introduction of evidence concerning other wrongful acts. In People v. Raleigh, 83 Cal.App.2d 435, 442, 189 P.2d 70, 74, the court said:

'It is clear that under the rule of the foregoing authorities, evidence of defendant's prior possession of the gun, and the circumstances thereof, was admissible even though such evidence tended to show independent wrongful acts. It is contended, however, that even though such rule might apply under ordinary circumstances, it cannot apply where, as here, there was a court dismissal of the independent crimes shown. However, the rule is well settled in England as well as in this country that an acquittal (and of course a dismissal at the preliminary examination is not even as strong in effect as an acquittal) does not prevent the admissibility of the evidence.'

The ultimate fact to be proved is the defendant's guilt of the crime with which he is charged and not the other offense. The evidence of the other offense is admissible even though the defendant was not convicted of it, provided such evidence is relevant. Therefore, the rule concerning the admissibility of other offenses expressed in the Raleigh case must be limited to those circumstances where the proof is relevant and material to the crime for which the defendant is being tried. The general rule of the admissibility of other criminal acts is stated in People v. Sanders, 114 Cal. 216, at page 230, 46 P. 153, at page 157:

'If the evidence of another crime is necessary or pertinent to the proof of the one charged, the law will not thwart justice by excluding that evidence, simply because it involves the commission of another crime. People v. Tucker, 104 Cal. 440, 38 P. 195. The general tests of the admissibility of evidence in a criminal case are: First. Is is a part of the res gestae? Second. If not, does it tend logically, naturally, and by reasonable inference to establish any fact material for the people, or to overcome any material matter sought to be proved by the defense? If it does, then it is admissible, whether it embraces the commission of another crime or does not, whether the other crime be similar in kind or not, whether it be part of a single design or not.'

See also People v. Peete, 28 Cal.2d 306, 169 P.2d 924; People v. McMonigle, 29 Cal.2d 730, 742, 177 P.2d 745; People v. Sykes, 44 Cal.2d 166, 170, 280 P.2d 769.

The questions asked the witness Pangle concerning other offenses were material to the issues before the court. Appellant and his codefendant Wessilink set up as a defense the purchase of the lobsters from a Bob Cromer or Cramer contending they had no intent to steal the lobsters of Lewis or Mierlot. The defendants failed to produce Cromer and the evidence disclosed that a thorough search by the investigating staff of the District Attorney failed to locate any such person. The witness Pangle on his direct examination gave credence to this defense by testifying that the day before defendants took the lobsters Pangle had seen a boat depositing lobster receivers in the same area. This gave some support to the defense theory that this other person was Bob Cromer and that he had deposited lobster receivers in the same area from which defendants had taken lobsters. No one else had seen receivers other than those of Lewis and Mierlot in the vicinity prior to the theft.

The prosecution by...