People v. Whipple

Decision Date16 May 1961
Docket NumberCr. 3145
Citation192 Cal.App.2d 179,13 Cal.Rptr. 378
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Oscar WHIPPLE, Defendant and Appellant.

Jack M. McPherson, Chico, for appellant.

Stanley Mosk, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen. and Nat A. Agliano, Deputy Atty. Gen., for respondent.

SCHOTTKY, Justice.

Oscar Whipple was found guilty by a jury of a violation of section 266h of the Penal Code (pimping). He was acquitted of a second count. Thereafter he made a motion in arrest of judgment and a motion for a new trial. Both were denied. The matter was referred to the probation officer, and following the filing of his report, the court ordered that probation be granted and that the imposition of sentence be suspended. Defendant appealed from the order denying the motions in arrest of judgment and for a new trial and from the order granting probation.

An order denying a motion in arrest of judgment is not an appealable order (People v. Bechtel, 41 Cal.2d 441, 260 P.2d 31), and while it may be reviewed on an appeal, a purported appeal from such an order must be dismissed. People McNamara, 103 Cal.App.2d 729, 230 P.2d 411.

Appellant does not contend that the evidence is insufficient to sustain the verdict of the jury and order but contends that because of the asserted misconduct of the district attorney, the failure of the court to give a cautionary instruction, and errors in the admission of evidence the appellant did not have a fair trial. Before discussing these contentions, we shall give a brief summary of the evidence as shown by the record.

On the evening of November 21, 1959, Chester Brune, a farm worker, entered a cab in the city of Oroville and requested that he be taken to the home of his boss, Adolpho Rodriguez. According to Brune, there was a woman sitting in the front seat next to the driver. Near the destination the cab driver allegedly drove the taxicab to the side of the road and stopped and asked Brune, 'Well, are you going to pay for it now.' Brune allegedly did not understand, and the driver then said, 'pay $20 for this woman.' Brune then left the car and entered the Rodriguez residence where he related the incident. Brune was unable to identify the driver or the woman, but he did notice that the driver had grey hair.

After being notified of the incident, Officer Spinale of the Oroville Police Department interviewed Brune. It was determined that there was not sufficient evidence to make an arrest. Brune, after leaving the police station, saw appellant about to enter a Star taxicab. He noticed that appellant had grey hair, and he thought appellant might be the cab driver. He approached appellant and apologized for not paying his fare and for getting angry. Appellant acted as if he did not know what Brune was talking about. Brune then told appellant that he was the boss of certain farm workers at the olive grove and that he wanted to get some women for his men. According to Brune, appellant gave him a card of the cab company on which the number '3' was written on the reverse side and told Brune to call the number on the face and ask for Oscar. Brune took the card and returned to the police station. He informed Officer Spinale of the conversation and then identified appellant's picture from a group as that of the man who had given him the card. Later in the evening Brune was given a marked five-dollar bill. Brune then phoned the Star Cab Company and asked for appellant. Later in the evening appellant and Brune met at the Liberty Club, where, according to Brune, he asked appellant to get a woman. Appellant left the Liberty Club and later met Brune in front of the club. A Jessie Petrovich was with appellant. Appellant said, '[H]ere she is.' According to Brune, Jessie asked the number of men, their race, and the sanitary facilities at the labor camp. She also told him the price would be $10. After a short interval the three entered appellant's cab and drove to the labor camp. When they arrived Brune allegedly gave appellant the marked five-dollar bill and then left the cab to see what he could arrange.

Officer Spinale had followed appellant's cab. He went up to appellant and told him to give him the five-dollar bill. Appellant allegedly told the officer, 'You mean the $5 he gave me? Well, I haven't given him his change yet.' Jessie Petrovich said, 'He didn't get $5.' Both appellant and Jessie Petrovich were taken to the police station where they were searched. The five-dollar bill was never found, but a syringe and a sponge were found in Jessie Petrovich's purse.

There was evidence from which it could be inferred Jessie Petrovich was a prostitute.

On January 22, 1960, Brune phoned Albert King, who was at the time appellant's counsel, and told him that he needed money. Brune asked King what the consequences would be if he left the state and did not appear as a witness. As a result of this call, appellant went to Sacramento. According to Brune, there was a discussion in which appellant told Brune that if the trial went appellant's way he would give him some money. Brune testified that he understood that he was to change his story and testify favorably for appellant.

There was also testimony that around the 20th of January appellant had placed $1,000 with the owner of the Liberty Bar for safekeeping and that appellant returned in a couple of hours for the money and mentioned that he was going to Sacramento and find Brune.

Appellant denied the charge. He testified that he first met Brune in the Liberty Bar on November 23d; that they discussed the matter of transporting men to Sacramento; that at the conclusion of the discussion Brune asked appellant if he could get the men at the labor camp some women; that Brune was told no; that later in the evening he saw Brune and again refused to get women for him; that he met Jessie Petrovich in a bar and that she told him that she wanted a ride to her home; that after an interval he found Brune and Jessie Petrovich in the same bar; that they both entered his cab to go to their respective homes. Both Jessie Petrovich and appellant denied that there was any conversation concerning prostitution. Both denied that Brune gave appellant a five-dollar bill. Appellant contended that his sole purpose in going to Sacramento was to secure information from Brune which might aid his defense. He further testified that he did not place the $1,000 in the safe until February 3d.

Appellant's first contention is that the district attorney was guilty of misconduct. Prior to the trial the defense allegedly contacted one Ray Hutton who purportedly was prepared to testify that on the evening of November 23d Brune came into the ranch house and hurriedly gave him a five-dollar bill which Hutton later used to purchase gas at a service station run by one Shaw. In his opening statement defense counsel stated he would prove the foregoing. Hutton was subpoenaed but failed to appear. A bench warrant was issued but Hutton could not be located. In his opening argument to the jury the district attorney commented about the missing witness as follows: 'And then there is another matter silent in the record about the, and I would invite counsel's comment about this, this missing witness Ray Hutton and unless my ears failed me, there was supposed, there was to be a chain of evidence, didn't he get the five dollar bill from Brune and run down and spend it at Shaw's 76 Service Station, something about that. Is there any evidence * * *.'

An objection was interposed at this point and the district attorney said that his comment was directed at the failure to produce Shaw. This was evasive. The reference could only have been to Hutton. Nevertheless, it was proper for the district attorney to comment on the failure of the defense to call witnesses to substantiate statements made in defense counsel's opening statement. People v. Gist, 28 Cal.App.2d 287, 82 P.2d 501; People v. Carter, 116 Cal.App.2d 533, 253 P.2d 1016. The jury did not have to believe that if called Hutton would have testified as he had told defense counsel he would. The jury could have believed he had misinformed defense counsel and hence feared to take the stand.

Appellant also contends that the district attorney was guilty of misconduct in permitting the owner of the Liberty Bar to testify that appellant had given him $1,000 to place in his safe about January 20th and that appellant had taken the money later to take to Sacramento to find Brune and 'do himself some good.' The district attorney argued that this testimony showed consciousness of guilt. Appellant argues that bad faith existed because in the trial of Brune for violating section 138 of the Penal Code (offers to receive a bribe on the part of a witness), which followed the instant trial, the testimony showed that the money was received by appellant on February 3d and placed in the safe on the same day, which was later than the date of the trip. There is no merit in this contention of appellant for several reasons. The district attorney had a right to refer to the testimony and draw legitimate inferences from it. The fact that the evidence at the trial of Brune was different than in the instant case was something for the trial court's consideration on the motion for a new trial. It does not compel a conclusion of bad faith.

Appellant contends further that error occurred when...

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  • People v. Crosslin
    • United States
    • California Court of Appeals Court of Appeals
    • June 22, 1967
    ...other than to show disposition to commit crime. (People v. Cancimilla, 197 Cal.App.2d 242, 252, 17 Cal.Rptr. 498; People v. Whipple, 192 Cal.App.2d 179, 186, 13 Cal.Rptr. 378; People v. Beverly, 233 Cal.App.2d 702, 720, 43 Cal.Rptr. 743; Witkin, Cal. Evidence (2d ed.) § 340, p. 299; former ......
  • People v. Quinn
    • United States
    • California Court of Appeals Court of Appeals
    • December 20, 1963
    ...other than to show disposition to commit crime. (People v. Cancimilla, 197 Cal.App.2d 242, 252, 17 Cal.Rptr. 498; People v. Whipple, 192 Cal.App.2d 179, 186, 13 Cal.Rptr. 378; Witkin, Cal.Evidence, § 135, p. 158.) Thus, evidence of other offenses is admissible to show motive, intent, knowle......
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    • United States
    • California Court of Appeals Court of Appeals
    • April 21, 1965
    ...other than to show disposition to commit crime. (People v. Cancimilla, 197 Cal.App.2d 242, 252, 17 Cal.Rptr. 498; People v. Whipple, 192 Cal.App.2d 179, 186, 13 Cal.Rptr. 378; Witkin, Cal. Evidence, § 135, p. 158; Code Civ.Proc. § 2051.) For example, evidence of other offenses is admissible......
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