People v. Burgess

Decision Date29 April 1959
Docket NumberCr. 6255
Citation170 Cal.App.2d 36,338 P.2d 524
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. William T. BURGESS, Defendant and Appellant.

Sidney Broffman, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., Jack E. Goertzen, Dep. Atty. Gen., for respondent.

HERNDON, Justice.

Appellant was charged in five counts with accepting bribes (Penal Code, § 68) and in a jury trial was found not guilty on count I and guilty on counts II through V. He appeals from the judgment and from the order denying his motion for a new trial. Since the sufficiency of the evidence to sustain the conviction is not questioned, we may condense our summary of the voluminous record except as it relates to appellant's specific assignments of error.

Appellant was employed as a Driver's License Examiner for the Department of Motor Vehicles at the Hope Street office in downtown Los Angeles. He resided in Alhambra. During 1957 he had dealings at his home with each of the four persons identified in the counts on which he was found guilty. Each of these persons (all foreign born and recent immigrants) testified that he had given appellant the sum of twenty dollars to obtain a driver's license. The driver's license application fee is but $3.00. Appellant failed to give these persons the required examinations to test their knowledge of the traffic laws and their driving ability.

In urging reversal of the judgment, appellant contends (1) that the trial court erred in admitting evidence which he insists was the product of an unlawful arrest, and (2) that the district attorney was guilty of prejudicial misconduct in questioning appellant in such a manner as to suggest to the jury that he had perpetrated other similar offenses in addition to those charged.

During April, 1957, appellant's activities were the subject of an intensive investigation by Mr. Fitzpatrick and Mr. Beckwith, investigators (Vehicle Code, § 136) employed by the Department of Motor Vehicles. The investigation disclosed that the accident-death and injury rate on licenses which appellant had issued was appreciably higher than the normal. During the course of their investigation, Fitzpatrick and Beckwith interrogated approximately twenty people who stated that they had gone to appellant's home, paid him $20 and obtained driver's licenses without passing the required qualifying tests. Moreover, the investigators received oral communications from an officer of the California State Highway Patrol to the effect that a collateral investigation of appellant's activities was being conducted by that department.

The investigators established contact with a Mr. Klementich, who told them that he had been a runner for appellant, had taken a number of people to his home in Alhambra, where appellant had issued licenses to them for the sum of $20 each. For about two weeks prior to April 30, 1957, the investigators had appellant's house in Alhambra under periodic surveillance from about dusk to approximately midnight. During this time they observed a number of vehicles coming to appellant's residence, from which adults, mostly male, would alight and enter appellant's residence, remaining there from 30 to 45 minutes and then departing. The investigators observed Klementich come to the house with different people on four different occasions before they became personally acquainted with him.

Mr. Nicholas Bobrick was employed by the investigators to pose as a recent immigrant to this country and to attempt to obtain a driver's license from appellant. For the purposes of the investigation, Mr. Bobrick used the name Nikola Bradovic, and obtained an immigrant's card in that name. He approached Klementich, who agreed to take him to appellant's house, and did so on the evening of April 25, 1957. During the course of the interview, he represented himself as unable to speak English and communicated to appellant through Klementich. Appellant took the false immigration card and filled out a preliminary application for a driver's license. Appellant then asked whether Bobrick had ever applied for a license under any other name, whether he had ever failed to pass a test for or been refused a license, and whether he had ever been afflicted with certain diseases, or physical disabilities. Appellant gave Bobrick an eye test, using the standard chart which hung in appellant's kitchen. Through Klementich, Bobrick asked if he couldn't have his license that evening. Appellant responded in the negative and indicated that he must return on another night. No test was given Bobrick as to his knowledge of traffic laws nor was he required to demonstrate his driving ability. Prior to the interview the investigators had given Bobrick the sum of $70 in maked bills, the numbers of which had been recorded. From this money Bobrick gave appellant $20, in the form of a ten and two fives, which appellant placed in his pocket. Bobrick was told to return in a few days to receive his license.

Bobrick returned to appellant's residence in the company of Klementich on the evening of April 29, 1957. During both interviews, radio equipment was strapped to Bobrick's body, and by this device the conversations within the house were overheard by the investigators who were sitting with a radio receiver in a car parked a short distance from appellant's residence. After entering the house, Bobrick observed appellant fill out the application forms. At appellant's direction, Bobrick placed his thumb print thereon. Appellant then gave Bobrick a temporary license, whereupon Bobrick said aloud, in English, 'Thank you, Mister' which was a prearranged signal to inform the investigators that the deception had been successful and the illegal transaction completed. The investigators left the vehicle and approached appellant's front door, just as Bobrick and Klementich were about to depart. They entered appellant's residence, and informed appellant that he was under arrest. The investigators displayed their identification cards and badges to appellant, and placed appellant under restraint.

During their search of the premises, Fitzpatrick and Beckwith uncovered a number of documents which were thereafter admitted in evidence during the course of the trial. The investigators searched appellant's person, and found the three bills which Bobrick had given appellant on the earlier meeting. At the trial a number of witnesses testified as to the manner in which they had given the sum of $20 to appellant, obtaining a driver's license thereby, and this evidence is more than adequate to sustain the conviction as to counts II to V. The jury, however, found appellant not guilty of count I, which was based on the Bobrick transaction described above. It is appellant's theory that the trial court erred in admitting evidence seized by investigators Fitzpatrick and Beckwith '* * * for the reason that the arrest was unlawful * * * the investigators did not have the power to make an arrest as peace officers, and it was not a proper case for a citizen's arrest.'

Vehicle Code, section 136 provides that investigators and other designated officers of the Department of Motor Vehicles shall have the powers of peace officers for certain specified purposes. However, it is unnecessary for us now to decide the debatable question whether this section authorized Fitzpatrick and Beckwith to make the arrest here in question in their capacity as peace officers. This is so because the evidence above recited afforded ample basis for the trial court's finding that the investigators were justified in making the arrest in their capacity as private persons. Penal Code, § 837; People v. Ball, 162 Cal.App.2d 465, 328 P.2d 276; cf. People v. McCarty, 164 Cal.App.2d 322, 330 P.2d 484.

The authority of a private citizen to make an arrest is spelled out in Penal Code section 837 as follows: 'A private person may arrest another: 1. For a public offense committed or attempted in his presence. 2. When the person arrested has committed a felony, although not in his presence. 3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.'

In Coverstone v. Davies, 38 Cal.2d 315, 320, 239 P.2d 876, 879, the Supreme Court construed former section 836, subd. 1 of the Penal Code (identical in terms with present section 837, subd. 1) and expressly declared that an arrest by a peace officer was authorized '* * * when 'circumstances exist that would cause a reasonable person to believe that a crime has been committed in his presence.'' In view of the identical language employed in section 837, subd. 1 of the Penal Code, it would appear that a private citizen may arrest another when circumstances exist which would cause a reasonable person to believe a crime had been committed in his presence. See also People v. Score, 48 Cal.App.2d 495, 120 P.2d 62; Hill v. Levy, 117 Cal.App.2d 667, 256 P.2d 622.

Without question, the evidence above recited is more than adequate to sustain the trial court's implied determination that there was probable cause for the investigators' actions. They had every reason to believe that when their decoy, Bobrick, gave the pre-arranged signal, the driver's license had been given in exchange for the money paid and without the required tests. Indeed, the unusual circumstance here revealed is the jury's action in acquitting appellant on this count....

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27 cases
  • People v. Brooks
    • United States
    • California Court of Appeals
    • 26 Mayo 1965
    ...developed that the person arrested did not commit the offense for which the original arrest was made. (See People v. Burgess (1959) 170 Cal.App.2d 36, 41, 388 P.2d 524.) At the time officer extracted the four cigarettes from defendant's clothing, he asked him if they were marijuana and the ......
  • People v. Garner
    • United States
    • California Court of Appeals
    • 5 Mayo 1965
    ... ... (People v. Alvarado (1962) 208 Cal.App.2d 629, 631, 25 Cal.Rptr. 437; People v. McCarty (1958) 164 Cal.App.2d 322, 328, 330 P.2d 484; and People v. Ball (1958) 162 Cal.App.2d 465, 468, 328 P.2d 276; and see People v. Burgess (1959) 170 Cal.App.2d 36, 40, 338 P.2d 524.) It is questionable whether a representative of the Adult Authority, in the absence of a present necessity for assistance in effecting an arrest (see Pen.Code § 839), could deputize a private citizen to place a parolee in custody. The facts of this ... ...
  • Sterling, Application of
    • United States
    • California Court of Appeals
    • 9 Febrero 1965
    ...limited to propinquity but is liberally construed to comprehend any crime which is apparent to the officer's senses. (People v. Burgess, 170 Cal.App.2d 36, 41, 338 P.2d 524; People v. Bock Leung Chew, 142 Cal.App.2d 400, 402-403, 298 P.2d 118.) In the present case as a basis for reasonable ......
  • People v. Marshall
    • United States
    • United States State Supreme Court (California)
    • 16 Julio 1968
    ...Again this court denied a hearing. Case after case is consistent with the foregoing. For further example, see People v. Burgess (1959) 170 Cal.App.2d 36, 41, 338 P.2d 524, 527, in which the court held that the 'term 'in his presence' is liberally construed (citation). Presence is not mere p......
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