People v. Corrigan

• Decision Date: 10 May 1957
• Docket Number: Cr. 6001
• Citation: 48 Cal.2d 551,310 P.2d 953
• Parties: The PEOPLE of the State of California, Respondent, v. Frank CORRIGAN, Appellant.
• Court: California Supreme Court

Page 953

310 P.2d 953

48 Cal.2d 551

The PEOPLE of the State of California, Respondent, v. Frank CORRIGAN, Appellant.

Cr. 6001.

Supreme Court of California, In Bank.

May 10, 1957.

Frank Corrigan, in pro. per., Robert W. Cole, Public Defender William D. Heekin, Asst. Public Defender, and Ralph D. Drayton, Sacramento, for appellant.

Edmund G. Brown, Atty. Gen., and G. A. Strader, Deputy Atty. Gen., for respondent.

GIBSON, Chief Justice.

A jury found defendant guilty of first degree robbery, and he had appealed from the judgment of conviction and the order denying a new trial.

The robbery occurred about 1:25 a. m. on May 1, 1955, in a Sacramento bar called the King of Clubs. It was committed by two men whose faces were masked by women's stockings, and the shorter of the men held a gun and wore gloves, an overcoat and a hat. One of the robbers was Frederick Ash, who was arrested on May 2 and pleaded guilty when he was made a codefendant in this case. Defendant, whose first name is Frank, knew Ash, and, on May 6, a man who identified himself as 'Frank' sought to reach Ash by telephone at the house where Ash rented an apartment. The landlady told the caller that Ash was out of town. Again on May 8, a man identifying himself as 'Frank' telephoned and asked for Ash. The landlady's son answered the call and immediately telephoned his mother, who was visiting friends. When she came home about 15 minutes later, there was another telephone call, which she answered, and the voice of the caller sounded like that of the man who had asked for Ash on May 6. Immediately after and 'pursuant to' the telephone call, the landlady and a friend went to Ash's apartment and 'got' a locked green box. It contained, among other items, two purses, a wallet, a pair of women's stockings, an overcoat, a hat and a gun.

The green box and its contents were turned over to the police and were introduced in evidence at the trial. The purses and the wallet were identified as property taken in the robbery, and the stockings were similar to those worn by the masked men. The overcoat and hat resembled the garments of the shorter robber, and the gun looked like the one which he used. Defendant's fingerprints were found on the gun, and an eyewitness to the robbery testified that defendant was approximately the size of the man with the gun.

James Duran, an ex-convict who was arrested with defendant in defendant's apartment on May 8, testified that, twice during that day, Edward Dillon, another ex-covict who was present in the apartment, left to make telephone calls and that, when Dillon returned from making the second call, he told defendant that Ash was in jail. According to Duran, defendant then said that the 'heat was on' and that 'I hope you guys got sense enough to get rid of that box because in the box was the stockings and the gun and these fingerprints were all over it.'

Defendant took the stand and denied participating in the robbery. He claimed that, on the night in question, he did not see Ash and that he was in a night club called the Sapphire Club from shortly before 1 a. m. until about 2 a. m., except that, at 1:10 or 1:20, he went across the street to another night club for five or ten minutes. By way of explaining the fact that his fingerprints were on the gun used in the robbery, defendant stated that he handled the weapon while being questioned by the police. However, two officers who conducted the interrogation testified that defendant did not touch the gun when it was shown to him. The evidence is sufficient to support the verdict.

Defendant seeks to reverse the judgment, claiming that he was prejudiced by questions which the judge asked three defense witnesses and by a statement of the judge that he would order Ash, who was then in jail, to be brought into court if defendant wished to call him as a witness.

Rheba Boyd, a waitress at the Sapphire Club, testified that she had breakfast with defendant about 2 a. m. on the night of the robbery and that defendant had been in the club during the preceding hour and a half. In cross-examining the witness, the prosecutor asked why she had not previously given this information to the authorities, and she answered, 'Well, why should I? * * * A lot of people had seen him there that night, and should they all come up to the Police Department and tell them?' In reply to further questions on the subject, she said that, although she knew that her information, if believed, would 'clear' defendant, she did not 'think of it that way,' and that she knew that defendant could not have committed the crime but that she did not 'do anything about it.' The judge interrupted and questioned the witness as follows:

'The Court: Let me ask you this. You became quite concerned there when you were asked why you didn't go to the authorities and tell them. Wny didn't you go to the authorities and tell them that you knew where Corrigan was that night? I don't want anything that a lot of other people saw him. They haven't come up and testified to it, but you have. Tell us why you didn't go. If you knew this man was innocent, why did you wait until today to tell this Court where he was charged or to tell the District Attorney or the Chief of Police? Why did you wait until today? A. Well, actually this Jack Travis, this bartender I, was going with, he didn't want me to get involved anyway or anything.

'The Court: You mean that the bartender was the one? Who is Jack Travis? A. The follow I was going with.

'The Court: Where is he? Does he know anything about this?

'Witness: No.

The Court: Well, all right. Now tell me, why, if you knew that this man was innocent, if you knew he was innocent, why did you wait until today? Give me your answer? You say it was your friend?

'Witness: Well, I thought if he needed me he would certainly get in touch with me.

'The Court: Did anybody ever get in touch with you?

'Witness: Mr. Cayocca (defendant's attorney) is the only one.

'The Court: All right, then what happened? Why didn't you go after you talked to Mr. Cayocca?

'Witness: He didn't suggest it.

'The Court: Did he suggest that you don't go?

'Witness: No, he did not.

'The Court: Well, then what stopped you from going?

'Witness: Actually, I don't I don't know why I didn't go. Just never occurred to me.

'The Court: You are here today. Aren't you?

'Witness: Yes.

'The Court: And you are here under a subpoena; isn't that right?

'Witness: Yes.

'The Court: When did you get that subpoena?

'Witness: About a week and a half ago.

'The Court: All right. At that time you knew that you were going to be brought into Court, didn't you?

'Witness: Yes.

'The Court: Why didn't you then go to the District Attorney and tell him that you knew this man was innocent?

'Witnesses: Well, I don't know why, I just figured that I would have to be here today and that's all there was to it; I mean I just didn't think any more about it.

'The Court: You never thought any more about it?

'Witness: No.

'The Court: Is that it?

'Witness: Yes.

'The Court: Is that what you want to tell me?

'Witness: Yes.

'The Court: All right. Now then, who was this you said told you not to become involved in it?

'Witness: This Jack Travis I was going with him, and he was just a little jealous of Frank (defendant), that's all.

'The Court: All right. And for that reason Jack Travis told you not to go and tell about it; is that it?

'Witness: Well, he didn't say not to, but he said if you are not careful, he said, you may get a subpoena; that's all.

'The Court: You told me he was jealous of Frank?

'Witness: He was.

'The Court: And is that the reason you mean to tell me that because he was jealous of Frank, that you would let a man be convicted of a crime of robbery because this bartender told you not to go to the police?

'Witness: He didn't tell me not to go.

'The Court: Well, why didn't you go?

'Witness: Judge, I don't know why I didn't go.

'The Court: All right. All right.'

The right of a trial judge to examine witnesses is not disputed. People v. Ottey, 5 Cal.2d 714, 721, 56 P.2d 193; People v. Mendez, 193 Cal. 39, 46, 223 P. 65; Bell v. Moloney, 175 Cal. 366, 370-371, 165 P. 917; People v. Candiotto, 128 Cal.App.2d 347, 359-360, 275 P.2d 500; People v. Deacon, 117 Cal.App.2d 206, 209, 255 P.2d 98; People v. Flores, 113 Cal.App.2d 813, 818, 249 P.2d 66; People v. Montgomerly, 47 Cal.App.2d 1, 18, 117 P.2d 437; People v. Golsh, 63 Cal.App. 609, 615, 219 P. 456. Defendant argues, however, that, in questioning the witness, the judge improperly led the jury to infer that her testimony was not to be believed because she did not volunteer to give to the authorities the information which she claimed to have with respect to defendant's whereabouts on the night the crime was committed. No objection was made to the questions asked of the witness by the judge, nor did defendant make a motion to strike the questions or answers. It is settled that a judge's examination of a witness may not be assigned as error on appeal where no objection ws made when the questioning occurred. People v. Ottey, 5 Cal.2d 714, 721, 56 P.2d 193; People v. Bishop, 134 Cal. 682, 686, 66 P. 976; People v. Deacon, 117 Cal.App.2d 206, 208, 255 P.2d 98; People v. Flores, 113 Cal.App.2d 813, 817, 249 P.2d 66; cf. People v. Amaya, 40 Cal.2d 70, 78, 251 P.2d 324; People v. Avery, 35 Cal.2d 487, 493, 218 P.2d 527. If the rule were otherwise, a party could speculate on the verdict by deliberately failing to call the court's attention to a matter which could be remedied during the trial. We must assume that, had an objection been made, the judge would then have informed the jury that his purpose in so questioning the witness was to establish facts which might affect her credibility, but that it was the exclusive province of the jury to determine the credibility of the witness and the weight to be given her testimony. Such an instruction, given at the time the questions were...