People v. Terry

• Decision Date: 22 April 1955
• Docket Number: Cr. 5697
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Grady C. TERRY and Lloyd Fred Rossl, Defendants, Lloyd Fred Rossl, Defendant and Appellant.

Page 19

282 P.2d 19

44 Cal.2d 371

The PEOPLE of the State of California, Plaintiff and Respondent, v. Grady C. TERRY and Lloyd Fred Rossl, Defendants Lloyd Fred Rossl, Defendant and Appellant.

Cr. 5697.

Supreme Court of California, In Bank.

April 22, 1955.

Rehearing Denied May 18, 1955.

William H. Rosenthal, Marshall Gumbiner and Joseph Ostrow, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for respondent.

SPENCE, Justice.

Defendant Rossi appeals from a judgment of conviction for violation section 137 of the Penal Code and from an order denying his motion for a new trial.

Defendants Terry and Rossi were accused of violating said section in that they gave and promised to give a bribe to Norman Moore and John Mallick, persons who were about to be called as witnesses, upon the understanding and agreement that their testimony would thereby be influenced. The trial court, sitting without a jury, convicted the defendants. Proceedings were suspended and each defendant was granted three years' probation and was fined $400. Defendants' motion for a new trial was denied. The appeal is taken only by defendant Rossi. He contends: (1) that the evidence shows as a matter of law that he was entrapped; and (2) that the evidence is insufficient to support the verdict.

As to the first contention, 'entrapment 'is a positive defense imposing upon an accused the burden of showing that he was induced to commit the act for which he is on trial.' People v. Schwartz, supra, 109 Cal.App.2d (450) at page 455, 240 P.2d (1024) at page 1027; People v. Grijalva, 48 Cal.App.2d 690, 694, 121 P.2d 32; People v. Lee, 9 Cal.App.2d 99, 109, 48 P.2d 1003.' People v. Braddock, 41 Cal.2d 794, 803, 264 P.2d 521, 526. Entrapment as a matter of law is not established where there is any substantial evidence in the record from which it may be inferred that the criminal intent to commit the particular offense originated in the mind of the accused. People v. Braddock, supra, 41 Cal.2d 794, 802, 264 P.2d 521. A review of the record here shows that there is ample evidence to support the trial court's implied finding that the criminal intent originated with the defendants.

Defendant Rossi's bartender was arrested on July 8, 1953, for an alleged violation of section 62 of the Alcoholic Beverage Control Act, Business and Professions Code, § 25602 (furnishing alcoholic beverage to an obviously intoxicated person). He was arrested by Officers Moore and De Madelena. Rossi and Terry owned bars approximately six blocks apart and had known each other for two or three years. Officer Moore first met defendant Terry approximately six years prior to the trial, and he first met defendant Rossi at his bar at approximately 11:50 p. m. on July 24, 1953.

Officer Sillings, who was present when Rossi was questioned at the police station, testified that Rossi admitted that he was aware that an ABC (Alcoholic Beverage Control Act) arrest had been made in his establishment. Rossi also stated that Terry first discussed the arrest with him on July 23, 1953. At that time Rossi mentioned that he thought one of the arresting officers was Officer Moore. Terry said that he had known Officer Moore for five or six years. Sillings then testified that Rossi said that the substance of his conversation with Terry had been to the effect that 'through the influence of Mr. Terry, Officer Moore could do Mr. Rossi some good on his ABC pinch. And Mr. Rossi said 'So, naturally I wanted to meet the officer and talk it over with him.' And a meeting was arranged for the following night, Saturday night.'

Rossi was asked, 'Just what did you expect this officer to do?' Rossi answered, 'Well, it is kind of a friendship deal between Terry and I. We are both bar owners in the vicinity and I thought maybe the officer could kind of go easy on the evidence; and if I were found not guilty, then I wouldn't have to go to the State Board.'

This conversation between defendants Terry and Rossi took place at Rossi's bar on the 23rd of July, 1953, the day before Terry first talked to Officer Moore about the bartender. From that testimony the trial court could infer that on the day before Terry first talked to Moore about the bartender's case, Rossi had formed the idea that Moore could do 'some good' in the bartender's case; could be influenced to 'go easy on the evidence' therein, and he, Rossi, 'naturally' wanted to meet the officer and 'talk it over with him.'

Officer Moore testified that he and his partner, Officer Mallick, saw Terry in front of his bar at approximately 2:00 p. m. on the 24th of July, 1953. Terry asked them to come into the bar and inquired whether they had made the ABC arrest in Rossi's bar. Moore answered that he was one of the arresting officers. Terry then said that Rossi had just received his whiskey license and didn't want it suspended; and inasmuch as Rossi was his friend, he asked if Moore would be able to do something about the arrest. Terry 'said that if we could do something for him, it would be the price of a couple boxes of cigars.' Moore asked Terry what he could do. Terry 'suggested that (Moore) fall down on the steps breaking the evidence.' Moore stated that he did not know about that, and he started to leave. As Moore passed by the door, Terry tapped him on the shoulder and held up two fingers and 'whispered, two hundred. And then stated that he would like to see (them) that night.'

At approximately 10:50 p. m. that same night, Officer Moore again met Terry and asked him 'what the deal was.' Terry stated, 'This guy I was telling you about will be worth $200 if you can do something for him.' Terry stated he would like to see Moore do something for him because he would face a 15-day suspension if he was convicted. Moore said he might be able to do something along that line, but that he would have to have something to go on. Terry asked him how much, and he stated that it would take at least $50 to get started. Terry then stated that he would have to see Rossi in regard to the thing and then left, walking in the direction of Rossi's bar.

Officer Moore was asked if, during the second conversation with Terry at 10:50 p. m., on July 24, 1953, any mention was made of the conversation had between himself and Terry four months previously outside of Division 7 in the Hall of Justice. He answered in the affirmative and stated: 'I directed Terry to the conversation that we had outside Division 7. * * * I asked him what the deal was on making these ABC pinches. Mr. Terry stated that the only thing I would have to do is make ABC pinches and that he would go to the bar the next day and just happen to be in there. (Terry) said, 'Of course the owner will tell me about receiving a pinch and I will tell him that I might be able to do something for him.' (Terry) says, 'The only thing you have to do is when you make the arrest is to substitute the drink that you take with a non-alcoholic beverage or change your testimony in some way.' (Terry) said, 'It will be worth $500 or $1,000 or whatever we can get on the thing. " This conversation occurred on July 24, 1953, and was not the conversation which had taken place four months previously. Later, in cross-examination, Moore was asked whether Terry at any time had offered him $500. Moore answered affirmatively, stating that this had occurred outside of Division 7. There is no evidence as to what was said at that time.

Resolving all conflicts and indulging in all reasonable inferences in support of the judgment, it is clear that the evidence does not show, as a matter of law, that the criminal design originated with Officer Moore. On the contrary, there was ample evidence to show that Rossi formulated the idea...