People v. Siegel

• Decision Date: 29 December 1961
• Docket Number: Cr. 3889
• Citation: 198 Cal.App.2d 676,18 Cal.Rptr. 268
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Albert SIEGEL, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 268

18 Cal.Rptr. 268

198 Cal.App.2d 676

PEOPLE of the State of California, Plaintiff and Respondent, v. Albert SIEGEL, Defendant and Appellant.

Cr. 3889.

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

Dec. 29, 1961.

As Amended on Denial of Rehearing Jan. 24, 1962.

Arthur J. Lempert, San Francisco, for appellant (Under appointment of District Court of Appeal).

Stanley Mosk, Atty. Gen., John S. McInerny and John L. Burton, Deputies Atty.Gen., for respondent.

BRAY, Presiding Justice.

Defendant appeals from a judgment of conviction, after jury trial, of 'violation of Section 664 of the Penal Code * * * (Attempted Escape)' and from an order denying new trial.

Questions Presented.

1. Was defendant denied due process by the delayed indictment?

2. Of what crime was defendant convicted?

3. Exclusion of testimony concerning defendant's statements prior to leaving the jail tank.

4. Reference to wrong section in indictment.

Evidence.

Defendant is represented on this appeal by court appointed counsel who has commendably performed his services.

Defendant was an inmate of the Santa Clara County jail charged with the commission of a felony. On the night of June 30, 1957, he was discovered in the courtyard of the jail, standing on a roof adjacent to the prison wall. James Veitenheimer, a fellow prisoner, was standing on defendant's shoulders. Veitenheimer was half way through the barbed wire. From the top of the roof to the top of the wall, excluding 3 feet of barbed wire that crests the wall, the distance is about 10 feet.

The attempted escape was frustrated when Sergeant Pantiga, during his rounds, noticed a flurry of activity in the courtyard, went into the 'big tank' (a large cell), and discovered that the back door was opened and the lock gone. Going through into the courtyard he observed defendant and Veitenheimer as above stated, and ordered them to come down. They quickly complied. The sergeant asked defendant for an explanation. Defendant refused to tell him anything about the escape, stating that he did not know who got away or what had happened to certain doors leading to the courtyard which had their locks missing. (Actually a third prisoner did escape.) Defendant then said, "I will tell you the truth, Sarg. I was trying to escape. I have a long stretch to do. I have something hanging over my head, and I have to take the opportunity to escape, if I can.'

Further investigation disclosed a rope braided from strips of blanket. One of the prisoners, called as a defense witness, testified that to his knowledge defendant did not open the door leading from the tank to the courtyard, and that defendant did not have anything to do with the planning of the escape. Another defense witness stated that both he and defendant had been asked by the planners of the escape to participate, but declined. He also said that defendant had gone into the courtyard to dissuade Veitenheimer from attempting to escape.

Defendant did not testify.

1. Due Process.

The attempted escape took place June 30, 1957. On July 19 an information charging defendant with attempted escape was filed. Thereafter defendant was tried on, and convicted of, the charge for which he was confined at the time of the attempted escape, a narcotics violation. On March 7, 1958, the information charging him with attempted escape was dismissed in the interests of justice. October 28, 1959, the judgment of conviction of the narcotics charge was reversed and the case remanded for new trial. (People v. Diaz, 174 Cal.App.2d 799, 345 P.22d 370.) Petition for hearing was denied by the Supreme Court December 23. On January 26, 1960, a complaint charging defendant with attempted escape was filed in the municipal court. On February 8 the indictment upon which defendant was convicted was filed. The municipal court action was then dismissed. The narcotics charge was then brought to retrial and defendant convicted thereof. Thereafter, this case was brought to trial.

Defendant contends 'that the dismissal of the information in 1958, followed by its exhumation in 1960, for the manifest purpose of harassment and vengeance is a flagrant abuse of Appellant's right to a speedy trial under Section 13 of Article I of the Constitution of California.' (Defendant states that he is not contending that there was any violation of the time limitations set forth in section 1382 of the Penal Code.) The contention that the constitutional section is violated by failure to file an accusation speedily after the commission of a crime is flatly answered to the contrary in People v. Aguirre (1960) 181 Cal.App.2d 577, 579, 5 Cal.Rptr. 477, 479, and in People v. Ragsdale (1960) 177 Cal.App.2d 676, 678, 2 Cal.Rptr. 640. In Aguirre we stated, 'There is no requirement that a defendant be indicted or arrested at any particular time between the commission of a crime and the expiration of the time allowed by the statute of limitations as to that particular crime.' No further discussion of the contention than appears in those two cases is needed. (See also People v. Jordan (1955) 45 Cal.2d 697, 708, 290 P.2d 484.)

2. Of What Crime Was Defendant Convicted?

It is difficult, if not impossible to tell.

The indictment charged defendant with 'a violation of Section 664 of the Penal Code of the State of California (Attempted Escape) in that * * * Said defendant was a prisoner charged with a violation of section 11500 of the Health and Safety Code of the State of California (Sale of Heroin), a felony, and was confined at the Santa Clara County Jail * * * and did attempt to escape from the said jail.' (Emphasis added.) It is clear from the indictment that defendant was charged with attempted escape by himself and not with aiding and abetting Veitenheimer to escape. The italicized portion is necessary in a charge for the defendant's own attempted escape, and has no place in an indictment charging a person, whether a prisoner or not, with aiding and abetting a prisoner to escape.

However, it appears from the argument of the district attorney and the instructions of the trial court that the jury, in effect, was instructed that it could find defendant guilty of the crime charged if they found either that he attempted to escape himself or assisted Veitenheimer to escape.

In his argument to the jury, the district attorney stated that as the evidence showed that defendant was on the roof with Veitenheimer on his shoulders there were only two possibilities for the jury to consider: one, that Veitenheimer and defendant were escaping together, or, two, that defendant was helping Veitenheimer to escape and then intended to return. He then stated that in either event defendant was guilty of an attempted escape because anyone who aids and abets is guilty of the offense himself. Defendant objected to this statement. The court, while it said that it would give the jury 'the correct law,' refused to stop the district attorney from this type of statement, saying that the district attorney was entitled to comment on the law. The district attorney continued, then, to argue that as defendant was helping Veitenheimer to escape, he was guilty of the crime charged. Later he said, 'Either Mr. Siegel was trying to get out of the jail, attempting to escape, or at best he was helping Jim [Veitenheimer] and in that case he is guilty of an attempted escape.'

Defendant's counsel, in his argument, insisted that under the indictment defendant was only being charged with his own attempt to escape and not with assisting Veitenheimer to escape. It was fedense counsel's theory, based upon the testimony of the two ex-convicts who appeared as witnesses for defendant, that defendant went out into the courtyard to try to persuade Veitenheimer not to attempt to escape, and that defendant was not out in the courtyard long enough to have climbed on the roof before Sergeant Pantiga went out there. Moreover, counsel contended that because of the height of the wall, defendant, if Veitenheimer got over it, would not have been able unassisted to climb the wall; hence, defendant was not trying to escape.

After reading the charging portion of the indictment the judge then charged the jury that one who is confined in a county jail who attempts to escape therefrom, is guilty of a crime. This, of course, would refer only to defendant's own attempt to escape. After other instructions, on intent and on the effect of a direct, though ineffectual act to commit a crime, both apparently directed towards an attempt to escape personally there appear two instructions on aiding and abetting the commission of an offense.

After the jury had been deliberating for a time, the jury requested to have 'some instructions reread * * *' The foreman, when asked what the jury wanted reread, said, 'The question is the charge for attempted escape.' Thereupon the court reread the above mentioned instructions but did not reread the two on aiding and abetting. When asked by the court if these were sufficient the foreman said that they were enough, but a juror said, 'There seems to be some question about aiding or abetting.' Thereupon the court reread the two instructions on that subject.

The court rejected defendant's two offered instructions to the effect that the only crime charged was defendant's own attempt to escape.

In view of the argument of the district attorney, the instructions of the court after defense counsel had argued that defendant was charged only with attempting to escape himself, its refusal of...