People v. O'Donnell

• Decision Date: 12 May 1955
• Docket Number: Cr. 5321
• Citation: 283 P.2d 714,132 Cal.App.2d 840
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel Franklin O'DONNELL, Defendant and Appellant.

Page 714

283 P.2d 714

132 Cal.App.2d 840

The PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel Franklin O'DONNELL, Defendant and Appellant.

Cr. 5321.

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

May 12, 1955.

Thomas D. Griffin and William T. Pillsbury, Long Beach, for appellant.

Edmund G. Brown, Atty. Gen., James C. Maupin, Deputy Atty. Gen., for respondent.

FOX, Justice.

Defendant was charged with the offense of perjury ¹ in an information containing two counts. Count I charged that he subscribed and swore to the truth of a false affidavit in support of a motion for a new trial in the case of People v. MacCagnan, (No. 160110). In Count II, he was charged with having knowingly given false testimony at the hearing on the motion for a new trial in the MacCagnan case. After trial by jury, defendant was found guilty as charged in each count. A motion for a new trial was denied. Probation was granted. Defendant appeals from the judgment and the order denying his motion for a new trial.

Defendant's present predicament stems from his participation in the proceedings for a new trial initiated by one MacCagnan, who had been found guilty of unlawful possession of narcotics. In support of MacCagnan's motion for a new trial, there was filed a sworn affidavit executed by defendant on March 25, 1954. On the following day, defendant testified under oath in the course of the hearing on the motion. So far as is here germane, the essence both of defendant's affidavit and his testimony is that either on the seventh or eighth day of June, 1953, he was an inmate of the Long Beach City Jail and witnessed MacCagnan being booked and searched by police officers; that while this was taking place, he observed the officers strike MacCagnan; that later MacCagnan was placed in the tank occupied by defendant, whereupon he helped make him comfortable and cleaned up some blood on MacCagnan's forehead and coveralls.

In prosecuting the action, the People sought to establish the falsity of the above statements by showing that on June 7th or 8th, 1953, the dates defendant swore he was an inmate of the Long Beach City Jail, he was in fact incarcerated in the Los Angeles County Jail. To that end, the contents of certain official records were introduced in evidence initially to show that defendant was not in the Long Beach City Jail between May 13, 1953, and June 18, 1953. Sergeant Sweet testified that in 1953 he was Chief Jailor for the Long Beach Police Department and was responsible for supervision both of the jail and the preparation of its records. He testified that the jail register contained an entry showing that defendant was 'received in the jail at 11:25 p. m. on five, twelve, fifty-three * * * and that he was sent to court on five, thirteen, fifty-three and sentenced to 30 days in the County Jail. ² He stated the register further disclosed that 'on five, thirteen fifty-three the prisoner was released to the Sheriff.' Sgt. Sweet testified that according to the register, defendant was next received in the Long Beach jail on 'six, eighteen, fifty-three.' He was sent to court the following day and sentenced to 30 days in the Long Beach jail. Despite this 30 day sentence, the only release date subsequently shown on the register was October 8, 1953, four months later. Under cross-examination with reference to this matter, Sgt. Sweet testified: 'I know beyond a shadow of a doubt that no man has spent four months in the Long Beach jail on a 30-day sentence. If it shows four months lapse, I know he wasn't in custody all that time.' Sgt. Sweet testified that he had no independent recollection of the period between May 13 and June 18, 1953, and that he was not testifying from any personal knowledge with respect to defendant's alleged nonpresence in the Long Beach jail during that particular time. The following testimony by Sgt. Sweet in response to questions propounded by defendant's counsel is worthy of note:

'Q. You testified in direct examination, sometimes a prisoner is held under the same booking number, I said--I think you said for accommodation purposes, is that correct? A. Yes, sir.

'Q. Sometimes the man goes out, after being given a booking number, and for some reason he is brought to court, or he is taken to Los Angeles, or for some other reason, and then he comes back, and you rebook him or give him another booking number? A. That is true.

'Q. So it is possible for a person to be away from your jail and come back and still have the same booking number? A. That is true.'

None of Sgt. Sweet's nine assistants assigned to handling the jail routine was called to testify.

William Eastwood, a Deputy Sheriff of Los Angeles County, testified he had transported defendant from the Long Beach jail to the Los Angeles County Jail on May 13, 1953, at which time he booked him there. He testified that very shortly thereafter he transported defendant back to Long Beach. He did not remember the exact date, but stated that defendant 'came back down to the Superior Court.' He testified that after having brought him to the County jail on May 13, 1953, he could 'remember taking him back [to Long Beach] quite a few times' without being able to fix the exact dates. Rex Kent, another Los Angeles County Deputy Sheriff, testified from official records in his possession. These records indicate that defendant was booked in the Los Angeles County Jail on May 13, 1953, and that he was released from custody on June 12, 1953. Kent testified that he had no personal knowledge regarding the information appearing in the records. He stated that under the system of record keeping followed at the county jail, if a prisoner leaves the jail out of the custody of a sheriff, he is rebooked on his return to the jail. If he leaves the jail in the custody of a sheriff, he is not rebooked on his return, since he is regarded as having at all times been in custody. This matter was elaborated as follows: 'Mr. Griffin (defendant's counsel): He was in custody from May 13th to June 12th. That's what your records indicate? A. They indicate that he was in custody of the Sheriff between those dates. Q. They don't indicate that he was in Los Angeles all that period? A. No, that wouldn't be necessary * * * The Court: In your job, custody, the man may be several places in the County, but he is still in custody, and that is what you are responsible for? A. That is all we are responsible for.'

From the foregoing it is clear that the case against defendant was predicated on documentary evidence purporting to show that on May 13, 1953, he was booked at the Los Angeles County Jail, that from that date until June 12, 1953, defendant was in the custody of the Sheriff of Los Angeles County, and that there was no record that defendant was an inmate of the Long Beach City Jail during that period of time. Therefore, in support of the judgment, it is argued that the evidence is sufficient to show a state of facts inconsistent with defendant's sworn statements. On the other hand, defendant contends, in addition to his claim that he was prejudiced by the exclusion of proffered evidence bearing on specific intent and by the giving of certain instructions, that the evidence was legally insufficient to uphold a conviction for perjury under the strict requirements of the pertinent statutes. ³ That contention is sustained by the California cases prescribing the quantum of evidence required to make out the offense of perjury.

In prosecutions for perjury, the falsity of the sworn statements of the defendant must be evidenced by the testimony of two independent witnesses or by one witness and corroborating circumstances. Pen.Code, sec. 1103a; Code of Civ.Proc., sec. 1968. It is firmly settled in this state that direct, as distinguished from circumstantial, evidence of the falsity of defendant's testimony is required from at least one witness. People v. Wells, 103 Cal. 631, 37 P. 529; People v. Porter, 104 Cal. 415, 418, 38 P. 88; People v. Maxwell, 118 Cal. 50, 50 P. 18; People v. Dixon, 99 Cal.App.2d 94, 96, 221 P.2d 198. These cases, to which may be added People v. Burcham, 69 Cal.App. 614, 619, 620, 232 P. 149, and People v. Follette, 74 Cal.App. 178, 201, 240 P. 502, also lay down the corrollary proposition that circumstantial evidence alone is not sufficient to support a conviction of perjury. ⁴ True it is that there has been growing dissatisfaction with the somewhat anomalous and technical rules of evidence hedging about a prosecution for perjury, and several jurisdictions permit proof of perjury upon circumstantial evidence alone, if thereby guilt is established by the degree of persuasion required for other criminal offenses. Marvel v. State, 3 W.W. Harr., Del., 110, 131 A. 317, 42 A.L.R. 1058; State v. Cerfoglio, 46 Nev. 332, 205 P. 791, 213 P. 102, 27 A.L.R. 848; Wolford v. Commonwealth, 218 Ky. 420, 291 S.W. 366. Nevertheless, the California rule represents the view prevailing in the majority of American jurisdictions. See Annotations 15 A.L.R. 634; 27 A.L.R. 857; 42 A.L.R. 1063. Whether or not this quantitative rule of evidence is anachronistic, or has outlived its usefulness, it is deeply implanted in the common law tradition of protecting an honestly mistaken witness from undue harassment from vengeful persons, and was designed to render convictions for perjury more difficult to obtain than is the case with most other crimes. Weiler v. United States, 323 U.S. 606, 609, 65 S.Ct. 548, 89 L.Ed. 495. 'Perjury requires a higher measure of proof than any other crime known to the law, treason alone excepted.' People v. DeMartini, 50 Cal.App. 109, 112, 194 P. 506, 508. As stated in People v. Wells, supra, 103 Cal. at page 632, 37 P. 529: 'In other words, the law prescribes a different rule of evidence in this class of cases, both as to the kind and amount, as compared to the great majority of violations of the law. The rule is different as to...