People v. McRae

• Decision Date: 20 November 1967
• Docket Number: Cr. 5764
• Citation: 256 Cal.App.2d 95,63 Cal.Rptr. 854
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Ruth Ella McRAE, Defendant and Appellant.

Page 854

63 Cal.Rptr. 854

256 Cal.App.2d 95

PEOPLE of the State of California, Plaintiff and Respondent, v. Ruth Ella McRAE, Defendant and Appellant.

Cr. 5764.

Court of Appeal, First District, Division 1, California.

Nov. 20, 1967.

Jack K. Berman, San Francisco, Burton Marks and Harvey A. Schneider, Beverly Hills, for appellant.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Charles W. Rumph, San Francisco, for respondent.

SIMS, Associate Justice.

Defendant was granted probation and the suspension of execution of sentence under a judgment which sentenced her to state prison on one count, and was granted probation and the suspension of imposition of sentence on a second count, following her conviction by a jury of two counts of perjury, in violation of the provisions of section 118 of the Penal Code. ¹ She has appealed from the judgment, and the appeal will be deemed to include the order granting probation on the second count. (See Pen.Code, § 1237.)

On November 25, 1961 defendant Ruth Ella McRae was involved in an automobile accident in San Francisco. The other party to the accident admitted liability and the case proceeded to trial on the question of damages. During the course of the trial, in testimony given on October 22 and 23, 1964, Miss McRae gave answers to twenty-six questions posed during cross-examination, denying that she ever had previously suffered an injury to her pelvis or lower abdominal area, that she had been involved in an accident on June 27, 1957, in San Francisco, that she knew or had ever been represented by an attorney named John Quinn, and that she knew Curtis Pennington. On the following Monday morning after recess, Miss McRae, in open court, dismissed her case.

Defendant was subsequently indicted and charged with perjury in two counts. The first count referred to sixteen specific questions and answers covering the testimony in which she denied that she had been in an accident in 1957, that she had previously suffered and had been treated for injuries, that she filed an action to recover for such injuries, or that she knew the attorney who filed the action on her behalf. The second count was based on her answers to ten questions concerning her acquaintanceship with one Pennington whose surname she was using at the time of the 1957 accident. Prior to the submission of the case to the jury, the court, on defendant's motion, struck nine questions and answers from the first count, and seven from the second count. The remaining ten statements are set forth in the margin. ²

Defendant's contentions on appeal may be conveniently grouped into allegations of: (1) error in overruling her objections to the indictment, (2) errors in the admission of evidence, (3) insufficiency of the evidence, (4) misconduct of the court, and (5) errors in the instructions given and refused. A review of the record and the applicable principles of law reflects no prejudicial error. The conviction must be affirmed.

Parenthetically it may be noted that the crux of defendant's complaint is comprehensible pique arising from the circumstance that a judge and prosecutor, who were admittedly unfamiliar with the details of a perjury prosecution, absorbed these essentials during the course of the trial. Defendant thereby had to meet a stronger case than she anticipated. There is, however, no doctrine which gives a vested right to the perpetuation of ignorance or error as a ground for evading criminal responsibility.

The pertinent facts are discussed in connection with the points to which they appertain.

Defendant's Attacks on the Indictment

The defendant interposed an oral motion to dismiss the indictment under the provisions of section 995 of the Penal Code and supplemented it with a written motion supported by points and authorities, to dismiss under the provisions of that section, or, in the alternative to strike certain questions and answers set forth in the indictment. This motion was denied as to each alternative, and the defendant entered her plea of not guilty to each count.

Thereafter, she was permitted to withdraw her pleas and a written demurrer was filed on her behalf. This demurrer was overruled, and she re-entered her pleas of not guilty.

Over eight months later the defendant filed a second written demurrer. At a subsequent hearing the court refused to permit the defendant to withdraw her pleas so the demurrer could be considered. (See Pen.Code, § 1004; and People v. Linton (1929) 102 Cal.App. 608, 611--612, 283 P. 389.) The case was continued to a date which had previously been set for trial.

Defendant renewed her motion to strike at the conclusion of the People's case. Two questions and answers were then stricken from the first count, and two questions and answers from the second count. During the course of the defendant's case, the court reopened the matter and struck an additional twelve questions.

Defendant then moved for a mistrial on the ground that the failure to strike these questions and answers at an earlier stage of the proceedings had permitted the People to present prejudicial immaterial evidence on the subject matter of the prior testimony involved. Examination of the matters which were stricken demonstrates that they were so closely related to the matters remaining in issue that the evidence introduced would have been admissible even if the motion to strike had been previously granted. It is only necessary to consider the remaining allegation of the indictment (see fn. 1), in testing the propriety of the trial court's earlier rulings.

Defendant contends in her brief that each count of the indictment was uncertain in that it failed to set forth which of the matters included were material; and that all of the matters should have either been embodied in one count, or in twenty-six separate counts.

'It is established in our law that it is for the judge presiding at the perjury trial to determine the materiality of the alleged perjured testimony.' (People v. Curtis (1939) 36 Cal.App.2d 306, 319, 98 P.2d 228, 234; Accord: People v. Macken (1939) 32 Cal.App.2d 31, 41, 89 P.2d 173.) 'There are two modes by which the materiality of the alleged false statement may be shown in criminal pleading: First by setting forth the nature of the issue, and the evidence given thereon, so that, as a matter of law, it may be said the testimony upon which the perjury is assigned is material to the issue; second by showing an action at issue in a court of competent jurisdiction, the testimony given, its willful and felonious falsity, coupled with the averment that it was Material to the issue.' (People v. Ah Bean (1888) 77 Cal. 12, 15, 18 P. 815, 816; and see Pen.Code, § 966.) The general allegations of materiality in the indictment were sufficient, and they must be deemed to apply to all of the testimony set forth.

No prejudicial error is found in combining numerous questions and answers in one count. The practice has been approved. (People v. Follette (1925) 74 Cal.App. 178, 190--191 and 199--200, 240 P. 502.) The grouping in one count of the testimony of the 1957 accident, the injuries, the treatment, and the litigation which ensued, and, in a second count, the testimony of the defendant's use of the Pennington name, did not create any prejudice to defendant.

Defendant seeks to incorporate, by reference in her brief, the points and authorities filed in the lower court in support of her motions. There is nothing to recommend this practice. This court should not have to search the record for arguments which defendant has failed to raise in her brief. Nevertheless, since some of the points first made at that time have been reiterated in connection with other issues raised in her brief, they may be discussed under this heading.

The alleged insufficiency of the evidence before the grand jury to support those questions and answers which have been stricken was rendered moot by that action. Of the remaining questions, it was conceded that an issue was raised in regard to prior injuries to defendant's pelvic area. Although defendant contended that the questions regarding her acquaintance with, and representation by Quinn were immaterial, it is obvious that in the whole fabric of the two civil cases these questions were significant and material. The last three questions and answers of the first count (see fn. 1) were conceded to be proper issues supported by testimony before the grand jury. The unstricken questions of the second count were subject to a general objection of immateriality. Here again, in the perspective of the entire case, the use of the name Pennington was highly significant.

There was no prejudicial error in ruling on the defendant's motions and demurrers.

Rulings on Evidence

Defendant contends that the court erred in admitting the testimony of the other party to the 1957 accident, and of the police officer who investigated that occurrence, because their names were not set forth on a list of witnesses furnished to defendant after she had made a motion for discovery. A similar objection is made to the use of an unlisted deposition from the first civil suit, which was produced by attorney Quinn.

Following arraignment, defendant's counsel filed a motion for discovery, and a declaration in support of the motion. This motion was thrice continued. The defendant acknowledges that no written response was made to the motion, but asserts that approximately a week before the trial the prosecutor furnished her with a list of proposed exhibits, allowed her to examine them, and stated that the witnesses would be those persons who appeared before the grand jury.

When the prosecutor elicited from attorney Quinn during his testimony that he had a copy of a deposition of defendant taken in the first civil action, defendant promptly objected to the admission of any of the contents of the deposition on the ground, among others, that it was not within the purview of the information revealed...