People v. Wayne
| Decision Date | 22 December 1953 |
| Docket Number | Cr. 5461 |
| Citation | 264 P.2d 547,41 Cal.2d 814 |
| Court | California Supreme Court |
| Parties | PEOPLE v. WAYNE. |
Harrison W. Call, Sacramento, for appellant.
Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Wallace G. Colthurst, Dep. Atty. Gen., J. F. Coakley, Dist. Atty. (Alameda), Richard H. Chamberlain, Asst. Dist. Atty., and Ray Mellana, Dep. Dist. Atty., Oakland, for respondent.
Defendant and Thomas Redden were charged by indictment with (count one) violation of section 653f of the Penal Code by soliciting Joseph May 'to offer and to join in the offer of a bribe' to police offers, and (counts two and three) two violations by making book and by keeping a room by marking book and by keeping a room with books and paraphernalia for recording bets. Redden pleaded guilty to all three counts and May was separately charged with and pleaded guilty to bookmaking. A jury found defendant guilty on all three counts. Defendant appeals from the ensuing judgment and from an order denying his motion for new trial.
The principal prosecution witnesses wre May and Redden. According to their own testimonies they were closely connected with the criminal activities of which defendant was convicted. Defendant's main contentions relate to the necessity for and sufficiency of the corroboration of their testimonies. We have concluded that these and other contentions of defendant, hereinafter stated and answered, are without merit.
The testimony of May and Redden is to the following effect:
May, a bookmaker, had been charged with bookmaking in Oakland in July, 1950, pleaded guilty, and was granted probation. May had become acquainted with Redden through Redden's having placed bets with him. In August, 1950, May told Redden that he wished to establish bookmaking operations in Alameda and 'would have to have 100 percent protection' from police interference because he was on probation; he asked Redden to aid him in arranging for such protection. Redden recalled that on social occasions he had seen defendant in the company of Alameda police officers and told defendant of May's proposal. Defendant said that he would attempt to arrange for protection. A few days later defendant reported to Redden that he had arranged with a lieutenant of the Alameda police force that May would receive protection in exchange for a 'pay-off.' Defendant May and Redden then met by appointment and defendant told May that he had arranged for him to operate safely on certain conditions as to location and manner of operation. Thereafter arrangements for weekly payments for protection were completed and May commenced bookmaking operations. He made periodical payments for protection to Redden who in turn delivered the payments to defendant. Defendant told Redden that out of the payments he purchased cases of whiskey and a slot machine which he gave to police officers. The balance of the payments was divided between defendant and Redden.
May discontinued bookmaking operations for a time after defendant warned him that the police planned to raid the establishment; operations were resumed when defendant advised that he had arranged with the lieutenant that May could operate with protection at a new address.
On January 12, 1951, police officers went to the bookmaking establishment and arrested May. At the police station May complained that he should not have been arrested because he was paying for protection through Redden and defendant to the above mentioned lieutenant. The arresting officers called in the lieutenant; May repeated his account of paying for protection; and the lieutenant said that May was lying. The lieutenant then went to Redden's place of business and told him of May's arrest and disclosures as to protection and asked Redden what story he planned to tell at the police station. Redden replied that he would say that May had borrowed $1,000 from him (actually Redden had invested $1,000 in the bookmaking business) and that the periodical payments were on the loan; the lieutenant replied, 'I guess that story is as good as any.' After Redden and the lieutenant had visited the police station, and Redden had told the above mentioned story, the lieutenant asked Redden to get in touch with defendant as soon as possible and to let him (the lieutenant) know what Redden learned. Redden telephoned defendant's home and defendant's wife told Redden that defendant would be at a hotel in Sacramento after eight o'clock that night. Redden gave the lieutenant the number of defendant's hotel and thereafter reached defendant on the telephone and told him 'that they had picked May up and * * * he was screaming his head off' because he had not received protection.
After defendant returned to Oakland Redden told him of his story of a loan to May. When he was questioned by a deputy district attorney defendant told a similar story of a $1,000 loan from him to May which May was to repay in weekly installments of $100 with two additional $100 payments as interest. He said that he suspected that May was engaged in bookmaking, but 'didn't delve into the thing,' and that thereafter he told Redden and May that he thought the bookmaking was a 'bad thing.' In his statement to the deputy district attorney defendant denied that he had told May that the police intended to arrest him or that he had advised moving the bookmaking enterprise to a new location or that he had ever discussed police protection with Redden or May.
At the trial defendant testified on his own behalf. The substance of his testimony is similar to that of his statement to the deputy district attorney. He denied any connection with bookmaking or bribery.
The following evidence corroborates the testimony of May and Redden: Although defendant denied the testimony that he 'tipped off' Redden and May that May should suspend operations because the police planned to raid the bookmaking establishment, defendant testified that at about the time of the asserted 'tip-off' he had read in the paper that May was on probation for a previous conviction of bookmaking and that there were numerous investigations and raids of bookmakers in progress; he telephoned Redden and thereafter met with Redden and May and told them that 'the man should certainly get out of the (bookmaking) business * * * because he certainly would get caught, probably without any lapse of time at all.' A sheriff's officer testified that at the time of the asserted 'tip-off' he did give the Oakland police a report on May's activities. An Oakland police captain testified that he received the report and gave it to the lieutenant who, according to May and Redden, had been named by defendant as the person with whom he arranged for protection. Defendant was acquainted with several ranking members of the Alameda police department, including the above mentioned lieutenant.
Defendant admitted that he was receiving payments from May and his explanation thereof was rather peculiar; i. e., although defendant's cash resources were very modest he had made an unsecured loan of cash to May, whom he had not previously known, merely upon Redden's assurance that May was 'all right'; the loan was not evidenced by any writing; defendant stated on one occasion that he made no record of the amounts repaid on the loan and testified that on a few occasions he noted a payment on a calendar but kept no 'methodical record' of payments.
On the afternoon of January 12, 1951, after May's arrest, Redden made three telephone calls to defendant's wife in an effort to reach defendant; she told Redden that defendant would be at a hotel in Sacramento that evening; Redden left a message at the hotel and shortly after defendant arrived there he returned the call and Redden told him that May had been arrested and had made statements implicating defendant and Redden. At 1:39 a. m. on January 13 defendant, at the Sacramento hotel, received a telephone call from 'Mr. Smith' at a pay station in Oakland. The police lieutenant got off duty just after 12 o'clock midnight. Defendant testified that a 'Willie Smith' had previously asked defendant to get him a job and that 'Smith' telephoned to inform defendant that he was leaving Oakland for Los Angeles.
Redden and May, according to their own testimony, were principals in each of the charged offenses of bookmaking (counts two and three); May directly committed the acts constituting those offenses and Redden advised and encouraged their commission. (Pen.Code, § 31.) Since they are accomplices and are liable to prosecution for the identical offenses charged against defendant in counts two and three, their testimonies must be corroborated by other evidence tending to connect defendant with the commission of such offenses. (Pen.Code, § 1111.) Defendant urges that there is no such corroboration. The evidence above summarized is sufficient for that purpose. The corroborative evidence may be slight and entitled to little consideration when standing alone. (People v. Harper (1945), 25 Cal.2d 862, 876, 156 P.2d 249; People v. Trujillo (1948), 32 Cal.2d 105, 111, 194 P.2d 681.) (People v. Henderson (1949), 34 Cal.2d 340, 343, 209 P.2d 785.) Defendant's association with police officials on the one hand and with Redden and May on the other hand, his peculiar explanation of his relations and dealings with the latter and his reason for receiving payments from them, his admitted knowledge that May was a bookmaker and that he advised May to abandon that enterprise, all tend to connect him with the commission of the bookmaking offenses.
Defendant insists that his explanation, in his extrajudicial statement to the deputy district attorney and in his testimony, of his claimed loan...
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