People v. Lyons

• Decision Date: 29 April 1958
• Docket Number: Cr. 6147
• Citation: 324 P.2d 556,50 Cal.2d 245
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Lowell LYONS, Defendant and Appellant.

Page 556

324 P.2d 556

50 Cal.2d 245

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lowell LYONS, Defendant and Appellant.

Cr. 6147.

Supreme Court of California, In Bank.

April 29, 1958.

Rehearing Denied May 27, 1958.

Richard H. Cantillon, Beverly Hills, under appointment by the District Court of Appeal, Cantillon & Cantillon, R. Michael Cantillon and James P. Cantillon, Beverly Hills, for appellant.

Edmund G. Brown, Atty. Gen., Elizabeth Miller and William E. James, Deputy Attys. Gen., S. Ernest Roll, Dist. Atty., Jere J. Sullivan and Fred N. Whichello, Deputy Dist. Attys., Los Angeles, for respondent.

SCHAUER, Justice.

Lowell Lyons (hereinafter called defendant), Paul Ferguson, and James Pope were charged by indictment (count 1) with conspiracy to commit burglary and to receive stolen property; defendant and Ferguson were further charged (counts 2 through 6) with five counts of receiving stolen property. Ferguson pleaded guilty as charged in count 2 and his cause was referred to the probation department for a report; his only appearance at the trial was as a witness for the prosecution. Pope and defendant pleaded not guilty. Pope went to trial with defendant but during the trial the one count against him (conspiracy) was dismissed on the People's motion and he was called as a witness for the prosecution.

A jury found defendant not guilty under counts 1, 2, and 3 and guilty as charged in counts 5 (receiving a stolen watch, the property of Aaron Rothenberg) and 6 (receiving a stolen fur coat, the property of Donald Thomas Handy). Defendant was sentenced to concurrent terms in the state prison. He presents numerous assignments of error, including the contention that there is insufficient evidence to corroborate the testimony of accomplice-witnesses. For the reasons hereinafter stated we have concluded that the matters complained of by defendant, subsequently detailed, either are not error or, in the circumstances, did not result in a miscarriage of justice (Cal.Const., art. VI, § 4 1/2), except that defendant should have been sentenced for only one count of receiving stolen goods.

Ferguson, Pope, and Dann Rio, witnesses for the prosecution, were accomplices according to a possible view of their own testimony. The jury were instructed that if the crimes charged were committed by anyone, then these witnesses were accomplices as a matter of law and that the testimony of an accomplice is to be viewed with distrust and must be corroborated.

To show that there is inculpatory evidence apart from the testimony of the accomplices we first set forth a summary of such inculpatory evidence. Defendant himself testified as follows: He was a lawyer with practice largely in the field of criminal law. He represented Ferguson, who was charged in a federal case with conspiracy. On a number of occasions defendant accompanied Ferguson in the latter's car; on such occasions defendant would drive because he knew that Ferguson 'was an exconvict and couldn't drive an automobile legally.' Through Ferguson defendant met James Pope under the alias of James England. Through 'England' defendant met Dann Rio and undertook to represent Rio in a narcotics case. Rio gave defendant $100 as a retainer. Subsequently Rio informed defendant that he was unable to raise the additional fee and, according to defendant's testimony at the trial, on the night of April 7, 1955 (the night before defendant's arrest), Rio 'handed me that watch (the subject of count 5) and told me it ought to be worth $50 off the fee * * * and although I had a watch at the time I did accept that watch from Mr. Rio.' Mr. Rothenberg, the owner of the watch, testified that it was stolen from his house in a burglary committed during his absence sometime between April 2 and April 7, 1955. Officer Hooper testified that he questioned defendant at the City Hall shortly after defendant's arrest; 'I asked him to remove the property from his pockets; he put his property on the desk; in the property was a man's Helbros pocket watch. I asked him where he had gotten this watch, he said it was his, that he had had it for some time.'

As to count 6, receiving a stolen fur coat, the corroborative evidence is as follows: The owner of the coat testified that it was stolen on the evening of April 7, 1955. Officer Roberts testified that on the morning of April 8, 1955, he saw defendant carrying a blue bag on which were the letters 'PAA'; the bag was 'stuffed full.' Defendant was accompanied by Ferguson, who was carrying a beer carton. They entered the Crest Hotel. '(T)hree or four minutes' after defendant and Ferguson entered the hotel officers followed them to the room of one Gallo. Officer O'Mara testified that he and the other officers entered Gallo's room. Defendant 'said, 'Who are you?' I said, 'I am a police officer.' And I said, 'You are under arrest.' And he said, 'What for?' And I said, 'For investigation of stolen articles. " The beer carton was on the floor. On it lay a fur piece (not the subject of count 6). Also on the floor was the blue bag, closed. An officer opened it and found in it the fur coat which is the subject of count 6 and three white shirts.

Defendant testified that at least two of the shirts were his; that he had put them in the automobile in which he drove to the Crest Hotel; and that 'to my knowledge' they were not in Gallo's room. Officer Hooper testified that when, shortly after defendant's arrest, the officer questioned defendant in the City Hall, 'I asked Mr. Lyons about the fur coats that had been found in the room, he said that he hadn't seen any fur coats, didn't know what I was talking about.'

The accomplice Ferguson testified as follows: He met defendant in November, 1954. Thereafter Pope got in touch with Ferguson and met him about a dozen times when defendant was present. On April 7, 1955, Rio, Pope, Ferguson, and defendant were present at a conversation when Pope 'stated how much he would like to get from that fur coat' (the subject of count 6); 'for the fur coat and three pieces of jewelry he stated he would like it to bring $200.' The next morning Ferguson took a fur coat in a beer carton and defendant took the fur coat which is the subject of count 6 in a bag initialed 'PAA' to Gallo's room. Gallo 'asked how much he was supposed to ask' for the furs; Ferguson said $1,100; Gallo 'said he would try to get that much, he wouldn't know until he saw his parties on the other end of the line * * * About that time the police officers came in and arrested us.'

In February, 1955, while Ferguson was in the county jail he heard of one Newton Erwin, who was also in jail 'and I had a sort of sympathy for the man, and he wanted to make bail and it seemed as though he didn't have any collateral to make bail. * * * I told Mr. Lyons that I thought Mr. Erwin was a very nice gentleman * * *, and if there was anything we could do to further his bond I would like to do it.' At a subsequent conversation among Mr. Davila, a bail bond broker, Ferguson and Lyons, it was agreed that fur coats obtained from Pope would be 'put up * * * as collateral for Mr. Erwin's bond,' and this was done.

Ferguson further described the sale of a fur coat, negotiated by Ferguson and defendant, to a Mr. Millin. The proceeds of the sale were turned over to Pope.

Davila and Millin, respectively, corroborated the testimony of Ferguson concerning the transactions with them.

The accomplice Pope testified as follows: On March 17, 1955, he was introduced to defendant by Ferguson, whom he had known for 12 years. In defendant's presence Pope 'stated that I had numerous articles which I wished to dispose of. * * * Mr. Ferguson stated he could handle the matter for me. * * * I advised Paul (Ferguson) I had several furs and numerous small items of jewelry.' There was not 'any mention made as to where these articles came from.' On March 18, 1955, in the presence of defendant, Pope turned over to Ferguson jewelry and furs. Ferguson 'stated that he was not holding * * * That is a slang expression meaning broke. * * * I stated that I would give them a good break on the deal,' that is, $200. '(I)n the course of the general conversation it was brought out that I was hot * * * that I had escaped.' There was 'general conversation' concerning burglaries and Ferguson 'advised me to stay as low as possible, in view of the fact that I was an escapee, and * * * keep the heat on myself down to a minimum.' There was conversation concerning obtaining identification for Pope under the name James England at a cost of $50.

At a third meeting among defendant, Pope, and Ferguson, Ferguson paid Pope $200; Pope handed Ferguson $50 to obtain a driver's license and other identification; and Pope delivered jewelry and furs to Ferguson.

At a subsequent meeting among Ferguson, defendant, and Pope, Ferguson delivered to Pope a receipt for the application fee for a driver's license. Thereafter Ferguson delivered the license in the name 'Robert Englund' to Pope.

Thereafter Pope committed various burglaries and stole furs and jewelry and delivered some of them to Ferguson in the presence of defendant. He delivered stolen furs to Ferguson in defendant's presence on 'perhaps four' occasions. Among the items which he stole were the subjects of counts 5 and 6. He stole the watch and fur coat which are the subjects of those counts on April 7, 1955, and took them to Rio's apartment. Ferguson and defendant arrived and Pope gave defendant the watch 'as an additional $25 fee against Mr. Rio's bill.'

The accomplice Dann Rio testified that on April 7, 1955, he, defendant, Ferguson and Pope had a conversation in Rio's apartment 'with reference to how much money we wanted for the fur pieces * * * (W)e agreed on the sum of $200 for it, that and some jewelry.' The fur coat which is the subject of count 6 was put in a blue bag initiated 'PAA' and carried from Rio's apartment; Rio and not remember who put the...