People v. Liss
| Decision Date | 27 June 1950 |
| Docket Number | Cr. N |
| Citation | 35 Cal.2d 570,219 P.2d 789 |
| Court | California Supreme Court |
| Parties | PEOPLE v. LISS. o. 5076. |
Morris Lavine, Los Angeles, for appellant.
Fred N. Howser, Attorney General, and Dan Kaufmann, Deputy Attorney General, for respondent.
Bella Liss is charged with the crime of petty theft with prior convictions for felonies. Under section 667 of the Penal Code, the offense for which she is now being prosecuted is a felony. The appeal is from a judgment of conviction, and presents for decision questions as to the sufficiency of the evidence and the nature and effect of an instruction concerning confessions.
The information accused the defendant of wilfully, unlawfully and feloniously taking $27 from Von's Market. She pleaded 'not guilty as charged in the information,' but admitted the prior convictions in this state for burglary and grand theft. She did not testify at the trial by jury, and no evidence was introduced upon her behalf.
Morris S. Chalphon, a witness for the state, told the jury that he was in a telephone booth in Von's Market between 5:10 and 5:20 p.m. on the day of the alleged crime. The telephone booth was approximately 15 feet from a cash register in the candy department, and was within his view. According to his testimony, he saw the defendant go to a cash register in the candy department, ring the two-cent key, and take something from the register and place it in her handbag. As this person's back was toward him, he was unable to see what she took.
According to Chalphon, he saw the defendant's features clearly when she passed within eight feet of the telephone booth immediately after leaving the cash register. As she left the market, the manager of the drug department, Boris Elkin, went to the cash register. He testified that he noticed all of the one and five dollar bills were missing from it. Chalphon then informed Elkin of the incident, and pointed out the defendant, who by that time was 40 or 50 feet from the market.
Elkin testified that he followed and overtook the defendant, who looked over her shoulder at him as he approached and asked him, 'What is the matter?' Elkin informed her that he would like to see her in the store for a minute. The reason for the proposed interview was not mentioned. 'What do you want to see me about?', said the defendant. Elkin expressed his preference that they talk in the market. She told him she was in a hurry to get home, and although Elkin insisted it was vital that they talk in the market, she started to walk away. Elkin again caught up with her and stated that if she did not come with him he would call the police officer on the corner. At that point, she said, 'All right, I will go back with you then, I want to straighten things out.' Throughout this conversation, Elkin had not told defendant his reason for wishing to talk with her.
According to the record, when Elkin and the defendant returned to the market, they were joined by a police officer. In the officer's presence, she was told that she had been seen taking money from the cash register, and that money was missing. She denied having taken any money, and handed her purse to Elkin, who examined its contents. Although Elkin did not count the money, he testified that he noticed several one and five dollar bills 'bunched up' in the coin purse. When again asked whether she had taken the money, she replied, 'Yes,' and explained that the needed funds for her sister. This testimony of Elkin was corroborated at the trial.
After this conversation, the manager of the grocery department joined the group. In the presence of the defendant and the police officer, the two managers checked the cash register, counting all of the the money in it. According to their computation, $36.89 was missing. Elkin testified that the tape of the register showed a two-cent item and then the record of a sale made by him just before Chalphon told him of what he had observed from the telephone booth.
Following the check of the register, the group went to the market office, where the defendant offered to return the money if no further action would be taken. The money in the defendant's purse was then examined by the police officer, who counted five $5 bills, seventeen $1 bills, one half-dollar, one dime, one nickel and seven pennies. Shortly thereafter, the defendant was arrested.
At the police station, the defendant obtained permission to speak with Elkin alone. The latter testified that she said to him, 'Will you please have them let me go?' As he related the incident, he replied, 'Well, you did take the money didn't you?' She answered, 'Yes,' and in response to a question as to why she had done, so, she told him she was 'broke.'
The record supports a conclusion that Elkin at no time promised the defendant immunity. According to his testimony, her statements were made freely, voluntarily and without duress, force or promise of reward. Other evidence is to the effect that, in the police station, when one of the arresting officers questioned the defendant as to her motive for taking the money, she told him she was 'broke.' There is testimony showing that this answer was made without any promise of reward or immunity, and that no force or violence was used to obtain it. The record also shows subsequent conversations at the police station in which the defendant denied taking the money. At this time she was asked why she had offered to return the money. She replied, as stated by an officer, 'Just because she was a big-hearted person.' Three times at the police station, according to the officer, the defendant gave a false name.
The defendant did not testify at the trial and no evidence was offered upon her behalf, but the prosecution's witnesses were vigorously cross-examined by her counsel at great length. At the conclusion of the evidence the jury was given instructions including one which reads as follows: (Italics added.)
By another instruction the jury was told that if a confession of the defendant was not freely and voluntarily given, they must disregard it. A third instruction dealt with the circumstances which, under the law, would bring the statement of a defendant within the category of an involuntary confession.
The jury was also given definitions of confessions, admissions, and instructions relating to the credibility of witnesses and flight. Some instructions offered by the defendant which dealt with admissibility of evidence, the responsibility of the jury, and confessions were refused.
The defendant generally complains that the court erroneously charged the jury and refused to give correct instructions offered by her....
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...matter falsely confessed, but for the limited purpose of proving something else, such as the witness' lack of veracity. (People v. Liss, 35 Cal.2d 570, 574, 219 P.2d 789; People v. Ford, 89 Cal.App.2d 467, 473, 200 P.2d 867.) Sigal's 'confession' was not of that sort. Viewed literally, it w......
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