People v. Downs

Decision Date16 December 1952
Docket NumberCr. 2800
Citation251 P.2d 369,114 Cal.App.2d 758
CourtCalifornia Court of Appeals Court of Appeals

Nathan C. Coghlan, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen. of State, David K. Lener, Deputy Atty. Gen., N. J. Menard, Dist. Atty. of Santa Clara County and L. P. Bergna, Asst. Dist. Atty., San Jose, for respondent.

DOOLING, Justice.

The defendant was convicted of burglary and robbery. He appeals from the judgment of conviction and from an order denying his motion for new trial.

On June 3, 1948 shortly before midnight two men entered a building of the Pacific Telephone & Telegraph Co. in San Jose. While these men were engaged in taking money from a safe two janitors employed by the company entered the room and were compelled by the burglars to lie down on the floor where they were securely bound. The two burglars then took from the safe $3,500 belonging to the company.

One of the janitors was unable to identify the burglars because, except for such light as came from the street through closed venctian blinds, the room was in darkness. The other janitor's testimony given at the preliminary hearing was read to the jury because of his death before the trial. This witness testified that 'to the best of my knowledge' the defendant (Downs) is one of the men who was in the room, that he heard Downs talk that night, remembers his voice and the voices 'were the same, the best I can tell.'

Several witnesses testified to seeing a tan convertible automobile with a light top parked in front of the burglarized building; one saw a man leave the building with a waste-basket under his arm and enter this car which then drove away; another saw a man's leg going in the door while the car was driving away. The operator of a motel near San Jose testified that on June 1, 1948 appellant stayed one night at her motel and that he was driving a tan convertible automobile. Appellant and his sister testified that appellant's convertible automobile had a black top and the dealer who sold the car to appellant testified: 'I believe the top was black.' In answer to a leading question he said that at the previous trial he had testified that the top was black.

Upon the basis of the qualified identification by the janitor, the disagreement between the prosecution witnesses' testimony as to the light color of the top of the car seen leaving the building and that of the defense witnesses that the top of appellant's car was black, and a discrepancy between appellant's height and the height of the man seen leaving the building as given by a prosecution witness, it is argued that there was not sufficient evidence to identify appellant as one of the participants in the crime. 'The strength or weakness of the identification, the incompatibility of and discrepancies in the testimony, if any there were, and the uncertainties of witnesses in giving their testimony were matters solely for the observation and consideration of the jurors in the first instance, and for the consideration of the trial court on motion for a new trial.' People v. Waller, 14 Cal.2d 693, 700, 96 P.2d 344, 348.

In weighing the evidence of identification, both direct and circumstantial, the jury was entitled to give its due weight to the testimony of witnesses, about to be discussed, from which it might reasonably find that at a previous trial in which the jury had disagreed appellant produced manufactured evidence in an effort to prove an alibi.

A police officer testified that at the previous trial appellant had given testimony that on the night of the burglary appellant was in Portland, Oregon. A private detective testified that he was working for a detective agency about the time of the first trial, that he was sent to Portland to determine if a Charles Murphy (an alias used by appellant) was registered in any hotel in that city on June 3, 1948, that at the Senator Hotel in Portland he found a registration card of that date with the signature Charles Murphy, that the hotel proprietor refused to allow him to take the card, but that he was called as a witness for the defense and testified at the first trial to finding this registration card in the Senator Hotel. A desk clerk from the Senator Hotel testified that he was persuaded by some person at a time long after the date it bore to insert this particular registration card in the records of the hotel. The proprietor of the hotel and the man who printed the cards testified that the particular card was of a type not used in the hotel on June 3, 1948, but only purchased for and used in that hotel at a later date. A handwriting expert testified that the signature 'Charles Murphy' on this card was identical with exemplars written by appellant.

It was not necessary to produce the transcript of the testimony of appellant and Harris at the previous trial. Any person who has heard or given testimony is competent to testify to the testimony that was there given. People v. Shortridge, 179 Cal. 507, 509, 177 P. 458; Meyer v. Foster, 147 Cal. 166, 169, 81 P. 402; People v. Curtis, 50 Cal. 95; 4 Wigmore on Evidence, 3d Ed., sec. 1330, pp. 651-652. The attempt to manufacture or suppress evidence may always be proved against a party as showing a consciousness of guilt. (8 Cal.Jur.Criminal Law, sec. 157, p. 42.) The evidence while largely circumstantial was almost conclusive that appellant had fabricated evidence to prove an alibi at the first trial.

Appellant was apprehended in Florida. What is described in his briefs as 'an arsenal' of firearms and burglar tools was found in his possession. These were introduced over his objection. The cases appear to be in some disagreement as to whether weapons found in the possession of a defendant at the time of his arrest may be placed in evidence without any showing tending to connect them with the commission of the crime charged. See, for example, People v. Richardson, 74 Cal.App.2d 528, 540-541, 169 P.2d 44, relied on by appellant and People v. Beltowski, 71 Cal.App.2d 18, 23, 162 P.2d 59 cited by the People. We do not find it necessary to decide this interesting question which the cases seem to leave in some confusion. Appellant in his own defense, in an effort to explain his habitual use of assumed names, testified that because he was an ex-convict he had been persecuted by the police and that his use of aliases was solely to avoid this persecution. He further testified at length that after his last release from prison he had given up his criminal ways and led a completely law abiding life. Appellant thus opened the door to any competent evidence calculated to disprove his sweeping assertion of reform. In People v. Westek, 31 Cal.2d 469, at page 480 190 P.2d 9, at page 16 the defendant charged with criminal actions with certain boys 'volunteered the sweeping statement that he had never, at any time or at any place, committed upon any boy any such sexual crime as was charged.' In rebuttal the People proved the commission of such crimes with boys not named in the information. The court held this proper saying at 31 Cal.2d at page 481, 190 P.2d at page 16 'Appellant himself 'opened the door for the admission of such evidence, and he is therefore in no position to complain of its reception * * *.''

The possession of an 'arsenal' of firearms and burglar's tools at the time of his arrest tended to disprove appellant's testimony that he had abandoned his criminal ways, and while the 'arsenal' was admitted on the People's case in chief, even before the adoption of sec. 4 1/2, art. VI of the State Constitution it was well settled that if evidence becomes properly admissible in rebuttal it is not reversible error that it was improperly admitted on the People's case in chief. (8 Cal.Jur., Criminal Law, sec. 302, p. 233.) In People v. Yokum, 118 Cal. 437, at page 439, 50 P. 686, at page 687 the court said: 'But some special injury must be shown to justify the reversal of a case merely because evidence was received at the wrong time.'

Appellant complains that much irrelevant and incompetent testimony was admitted from a police officer who accompanied appellant from Florida to California as to conversations with appellant, questions asked him and answers given by appellant. Much of this evidence was admitted without objection and as to all such evidence appellant cannot now complain. Specifically certain evidence was admitted over objection, of statements that appellant's wife had left him and that several of his former criminal associates had been killed and others were in prison. In view of the entire case we can find no prejudice in the admission of the particular evidence to which objection was made. The appellant's extensive criminal career was amply disclosed by...

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