People v. Vaughn

• Decision Date: 01 November 1961
• Docket Number: Cr. 7528
• Citation: 16 Cal.Rptr. 711,196 Cal.App.2d 622
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE, Plaintiff and Respondent, v. George L. VAUGHN, Defendant and Appellant.

Page 711

16 Cal.Rptr. 711

196 Cal.App.2d 622

PEOPLE, Plaintiff and Respondent, v. George L. VAUGHN, Defendant and Appellant.

Cr. 7528.

District Court of Appeal, Second District, Division 3, California.

Nov. 1. 1961.

Rehearing Denied Nov. 21, 1961.

Hearing Denied Jan. 9, 1962.

Dion Morrow, Los Angeles, Brock & Fleishman and Stanley Fleishman, Hollywood, for appellant.

Stanley Mosk, Atty. Gen., and S. Clark Moore, Deputy Atty. Gen., for respondent.

VALLEE, Justice.

A jury convicted defendant of a conspiracy to falsely personate another person and of having falsely personated that person. (Pen.Code, §§ 182, subd. (1), 529, subd. (3).) A new trial was denied. He appeals from the judgment (order granting probation) and the order denying a new trial.

On December 11, 1959 David McGill, a Los Angeles police officer, arrested Minnie Solomon on a charge of possessing marijuana. Defendant, an attorney at law, was engaged to represent her.

Winnie Tobin was Mrs. Solomon's twin sister. On December 23, 1959, the day of the preliminary hearing on the charge against Mrs. Solomon, Mrs. Tobin was sitting in Mrs. Solomon's car, parked across the street from defendant's office, while Mrs. Solomon was in his office. Defendant drove up behind her, saw her sitting in the car, went over to it and looked at her 'real funny.' Mrs. Tobin said, 'I know what you're thinking, but it is not so.' Defendant said, 'You aren't Minnie Solomon?' She said, 'No, I am her twin sister.' Defendant 'popped his finger' and said, 'I know what I am going to do, I am going to switch this thing around.' Defendant asked Mrs. Tobin if she was going to court with Mrs. Solomon. She replied in the affirmative.

Defendant went to his office. Mrs. Solomon returned to the car and she, Mrs. Tobin, and Toni Davis went to Division 40, then to Division 42, of the municipal court. They met defendant in Division 40. As they walked to Division 42 Mrs. Solomon told defendant the officer who had interrogated her was not present in court. Defendant then dropped behind and talked to Mrs. Tobin. Mrs. Tobin testified: 'He told me that he wanted me to be Minnie Solomon, and that she was going to be Winnie Tobin, whatever happened in Court, or whatever was said, that I was still Minnie Solomon, that is the way he was going to win his case and have it kicked out,' and she sid, 'O.K.'

The preliminary hearing of Mrs. Solomon was partially had that afternoon. Defendant was at the counsel table. He turned around and said, 'Minnie Solomon.' Mrs. Solomon started to get up. Defendant said, 'No.' Making a motion for her to sit down, he pointed to Mrs. Tobin. Mrs. Tobin said, 'Me?' Defendant said, 'Yes.' Mrs. Tobin again said, 'Me?' and defendant again said, 'Yes.' Toni Davis said to Mrs. Tobin, 'Get up, because this is the way he is going to win your sister's case.' and Mrs. Tobin was going to 'rank it.'

Mrs. Tobin walked to the counsel table. Defendant told her she 'didn't have to say anything, just sit to the right, and just sit there.' During the course of the hearing on the 23rd Office McGill identified Mrs. Tobin as the person he claimed to have possessed marijuana. The hearing lasted about half an hour on the 23rd and was continued to the 24th.

At the conclusion of the hearing on the 23rd Mrs. Solomon, Mrs. Tobin, and Toni Davis walked out of the courtroom together, defendant behind them. As they approached the elevator a deputy sheriff in plain cloths who had been sitting in the courtroom came up and said to Mrs. Tobin, 'Are you Minnie Solomon?' Defendant told her not to answer any questions nor to give her name. Defendant said, 'What do you want with her?' The officer identified himself, showed his badge, and said, 'She is under arrest.' Defendant asked, 'What for?' The officer said, 'A traffic warrant.' Defendant asked the officer the amount of the bail. The officer said $105. ¹ Defendant went over to Mrs. Tobin and told her she 'didn't have anything to worry about, that he would have [her] out in thirty minutes, and that [she] was still Minnie Solomon.' Mrs. Tobin said, 'O.K.' The deputy sheriff took Mrs. Tobin to the warrant rant detail in room 396 of the Hall of Justice where she remained about an hour waiting to see if bail would be posted. She was then booked and photographed as Minnie Solomon and her fingerprints were taken. She wrote 'Minnie Solomon' on the fingerprint card. While she was in custody defendant telephoned a bail bondsman and told him to post bail for Minnie Solomon. Bail was posted and Mrs. Tobin released.

The preliminary hearing of Minnie Solomon was concluded on December 24. Mrs. Tobin sat at the counsel table on the 24th in place of Mrs. Solomon.

On either the night of the 23rd or the morning of the 24th Officer Bachman, Officer McGill's partner, showed McGill a photograph of Mrs. Solomon. McGill then learned he had identified the wrong woman. Before the hearing on the 24th Bachman informed the district attorney that McGill had identified the wrong person. On the 24th the district attorney requested that the 'lady appearing in the Courtroom there with the white appearing raincoat' be brought up to defense counsel and asked to remove her hat, and that 'this particular female person sitting next to counsel' also remove her hat. He stated: 'I have a question as to which particular person is the true defendant, and I would like to have this particular person identified, the female sitting next to counsel by her true name, if I may.' Defendant's objection was sustained. On resuming the stand on the 24th McGill testified he then believed the lady sitting in the rear of the courtroom was Minnie Solomon. Bachman testified on the 24th he knew Minnie Solomon was sitting in the spectator section of the courtroom and Winnie Tobin at the counsel table.

After the hearing on the 24th defendant talked to Mrs. Tobin. Mrs. Tobin testified: 'Well, it was still the three of us together, and Mr. Vaughn was standing outside of Division 42 right by the door, and I walked up to him, I said, 'Mr. Vaughn', I said, 'They took my picture and my fingerprints and I signed my sister's name'. So he said, 'Oh, that is all right', he said, 'I will have those fingerprints pulled and brought into the Courtroom to prove that you ar not Minnie, that you are Winnie', and that I didn't have anything to worry about. So I said, 'O.K.'.'

On his arrest, three officers had a conversation with defendant. Defendant stated, 'I deny that I substituted Winnie for Minnie.' He said he had no idea which girl, Minnie or Winnie, the deputy sheriff took into custody on the warrant. He said the first time he had any question of the identification of the girl at the counsel table was when he saw Officer McGill hesitate on the witness stand. One of the officers asked him, 'Did you know which of the girls was sitting beside you both days of the preliminary hearing?' Defendant answered, 'I assumed it was the defendant.' One of the officers asked, 'As far as you were concerned, during both days of the preliminary hearing until some question of identity was raised, the right person was seated beside you at the table?' Defendant answered, 'As far as I was concerned.'

Defendant testified. He said, 'I didn't substitute one for the other because both of them were in court, so I can't say that answer to that question because there was no substitution.' The only reason for having Mrs. Tobin sit at the counsel table was to test the reliability of the police officer. He did not know a traffic warrant was outstanding for Mrs. Solomon's arrest. He knew from prior experience that a person arrested for a traffic violation could be immediately released from 'room 396' on the posting of bail. A deputy sheriff assigned to the warrant detail in room 396 testified that persons arrested for traffic violations and first brought to his room would be released without any booking if he were notified within a limited period of time that cash bail had been posted. Defendant testified he permitted Mrs. Tobin to go with the officer because he was suspicious of him and his possible connection with Officer Bachman who had left in the middle of the preliminary hearing that day without returning, and because the officer's attitude indicated he would brook no interference with the arrest of Mrs. Tobin. He felt he was not under a duty to make disclosures, and was under a duty not to interfere.

Defendant admitted the conversation with the officers the day he was arrested and that he had told them he had assumed the real defendant was sitting at his side. He said everything he told the officers 'was a lie.' He conceded he had disclaimed any knowledge of the substitution of Mrs. Tobin for Mrs. Solomon. His explanation of lying to the officers was that he was indignant at the manner in which they had arbitrarily arrested and abused him; instead of booking him properly, they insisted on first interrogating and threatening him; he felt the officers were trying to get something to use at the trial to buttress their case against Mrs. Solomon so he decided to give them nothing under compulsion that would relieve them from the mistake they probably had discovered Officer McGill had made in his erroneous identification at the preliminary hearing.

The case of the People at the trial and here is not based on the conduct of defendant in the courtroom. ² It is predicated on his conduct in allowing Mrs. Tobin to be taken into custody as Mrs. Solomon.

The first assignment of error is that the evidence does not establish a violation of subdivision 3 of section 529 of the Penal Code or a conspiracy to commit the offense. It is argued the statute condemns only such personation which injures the person falsely personated or which enables the personator or some third person other than the person personated to benefit therefrom.

Penal Code, section 529, subd. (3), provides:

'Every person who falsely personates another in either his private...