People v. Zerillo

• Decision Date: 24 October 1950
• Docket Number: Cr. 5087
• Court: California Supreme Court
• Parties: PEOPLE v. ZERILLO

Page 223

223 P.2d 223

36 Cal.2d 222

PEOPLE v. ZERILLO.

Cr. 5087.

Oct. 24, 1950.

Harold C. Faulkner, A. J. Zirpoli and Melvin, Faulkner, Sheehan & Wiseman, all of San Francisco, for appellant.

Fred N. Howser, Attorney General, David K. Lener, Deputy Attorney General, Edmund G. Brown, District Attorney, and Norman Elkington, Assistant District Attorney, San Francisco, for respondent.

GIBSON, Chief Justice.

Defendant, president of Riverbank Canning Company, was convicted of offering a bribe to Milton P. Duffy, Chief of the Bureau of Food and Drug Inspection of the State of California, and he has appealed from the judgment and from the order denying his motion for a new trial.

In 1944 the Bureau quarantined several thousand cases of canned tomato paste packed by the Riverbank Canning Company, and 1861 cases of the goods were still held under quarantine on November 18, 1946, the day of the alleged bribe. The evidence is sharply conflicting as to what occurred between Duffy and defendant.

Duffy testified that defendant called on him at his office in San Francisco and asked him to release the quarantined goods so that defendant could sell them and give the proceeds to a church and school. Duffy answered, 'that stuff is not going to be sold, it's going down the sewer.' Defendant then said 'Here is a little present for you.' Although Duffy protested that he did not want a gift, defendant took a small package out of his pocket and laid it on the desk. Duffy asked if the package contained money, and defendant assured him that it did not. Whereupon Duffy opened the package and found that it contained a number of fifty dollar bills which defendant told him amounted to $5,000. Duffy said, 'I am surprised. Did you think you were going to pull anything like that on me?' He then called in an assistant named Wheeler and stated in defendant's presence that defendant had just offered him a $5,000 bribe. Defendant then denied that he had offered any bribe and claimed that Duffy had 'misunderstood' him, saying, 'I wanted that $5,000 to go to charity.' Defendant begged Duffy not to make any trouble and finally left after Duffy told him to get out.

Wheeler testified that Duffy called him into his office and said to him, in defendant's presence, 'Zerillo has just offered me a bribe of $5,000.' Duffy repeated the accusation several times, and defendant replied, 'No, Mr. Duffy, you misunderstood me. That was not a bribe. * * * I offered you $5,000, but you misunderstood me. I wanted you to give it to charity. * * * All I wanted to do was to be friend to you in the department. Let's shake hands and be friends.' Duffy then ordered defendant to 'get out and stay out,' and defendant left.

Defendant testified that he neither gave nor offered Duffy any money and denied that he had a package of money in his possession. He said that he told Duffy that he was building a church and a school and that he then brought up the subject of the quarantined goods, saying, 'Now, Mr. Duffy, I got obligated to build this Catholic Church down at Riverbank and to help build the school for the children, a Catholic school in Modesto. I would like to have you release those goods because I know I can sell, there is demand for goods, and the proceeds of those goods I will like to give about $5,000 to the Catholic Church and the balance for the school or charity in the community.' Duffy became angry and accused him of wanting the goods released for himself and not to help build a church. Defendant answered, 'No, I didn't come here to release those goods for myself. I don't need any money, thank God. I just come here to help the community, do good for my community.' Duffy accused defendant of offering him money in order to obtain the release of the goods, and defendant answered, 'No, Mr. Duffy, I don't want to offer any money. I have no money to offer you.' Duffy called Wheeler into the room, and defendant said, in Wheeler's presence, 'I didn't come here to offer any money. I haven't got any money.' In response to Duffy's statement that he could arrest him, defendant replied, 'I am here if you want to arrest me. I am not going to run away. I am here. Why don't you arrest me.' Duffy then ordered him to leave.

The evidence is clearly sufficient to support the judgment, but defendant claims that a reversal is required because of prejudicial errors committed in the admission and exclusion of evidence and in giving and refusing to give instructions to the jury.

The prosecution, over objection, introduced inter-office reports made by a chemist employed by Riverbank concerning the purity of tomato paste packed in 1946, and also introduced copies of letters sent by defendant prior to November 18, 1946, requesting eastern agents of the cannery to sell goods from the 1946 pack immediately. The paste, canned in 1946, was not referred to in the conversation between defendant and Duffy which, as we have seen, related to goods quarantined in 1944, and defendant contends that the evidence was irrelevant and immaterial and that he was greatly prejudiced by its admission. We are of the opinion, however, that it was relevant on the question of motive or intent and was properly admitted.

The reports showed that in the chemist's opinion certain batches of the 1946 pack contained too high a mold and insect fragment content to meet state and federal pure food standards, and that other batches were so close to the allowable limit that they should not be sold without reexamination. The letters mentioned above referred to some of these batches by number. There was proof from which the jury could infer that the reports had come to defendant's attention prior to November 18, 1946, when he visited Duffy's office. The jury could also infer that defendant hoped to influence Duffy's conduct with regard to the 1946 pack as well as to obtain release of the goods held in quarantine, since, if Duffy were induced to take a bribe in connection with the 1944 goods, he would be less likely to interfere with defendant's disposal of the 1946 pack. The evidence was thus relevant on the question of intent or motive, and the fact that it might also tend to show the commission of another offense, namely, disposal of goods in violation of pure food and drug laws, did not warrant its exclusion. The record shows that the court instructed the jury that the evidence was admitted for a limited purpose and was to be considered by them only for what bearing it might have on defendant's motive or intent at the time he allegedly approached Duffy with an offer of a bribe.

It is true that the chemist conceded that the tests conducted by him differed from pure food tests made by federal authorities, that only one can was taken as a sample from a batch of approximately 10,000 cans at Riverbank, and that the findings therefrom were not conclusive as to whether the batch was substandard. He also admitted that, 'It is quite possible that two chemists analyzing the same batch may get different results, either worms or molds.' This testimony, however, went merely to the reliability of the reports and did not render them inadmissible. Later in this opinion we shall discuss the admissibility of evidence offered by defendant to show that 1946 goods referred to in the reports were not contaminated and successfully passed state tests.

On cross-examination the prosecution was permitted to question defendant at length about his knowledge of the chemist's reports and about the letters to the eastern agents. Defendant contends that the prosecution improperly exceeded the permissible scope of cross-examination because he had not been questioned regarding these matters on his direct examination.

Section 1323 of the Penal Code provides: 'A defendant in a criminal action or proceeding cannot be compelled to be a witness against himself; but if he offers himself as a witness, he may be cross-examined by the counsel for the people as to all matters about which he was examined in chief. * * *' This does not mean that the cross-examination must be confined to a mere categorical review of the matters, dates or times mentioned in the direct examination. See People v. Wilson, 25 Cal.2d 341, 351, 153 P.2d 720; People v. King, 13 Cal.2d 521, 527, 90 P.2d 291; People v. Mammilato, 168 Cal. 207, 213-214, 142 P. 58; People v. Buckley, 143 Cal. 375, 388-389, 77 P. 169; People v. Teshara, 141 Cal. 633, 638, 75 P. 338; People v. Dole, 122 Cal. 486, 491, 55 P. 581. It may be directed to the eliciting of any matter which may tend to overcome or qualify the effect of the testimony given by him on his direct examination. People v. Kynette, 15 Cal.2d 731, 753, 104 P.2d 794; People v. Creeks, 170 Cal. 368, 379, 149 P. 821; People v. Buckley, 143 Cal. 375, 388-389, 77 P. 169. Defendant argues that the 1935 amendment to section 1323, giving counsel the power to comment on 'the failure of the defendant to explain or to deny by his testimony any evidence or facts in the case against him,' necessarily indicates that a defendant may testify and yet neither have to explain or deny facts introduced against him. This is true only to the extent that such 'evidence or facts' are not within the scope of his direct examination, since the section expressly states that a defendant 'may be cross-examined * * * as to all matters about which he was examined in chief.' It is well settled that the section as it existed prior to 1935 did not have the effect of confining the cross-examination of an accused to any narrower limits than in the case of any other witness, People v. Rozelle, 78 Cal. 84, 92-94, 20 P. 36; People v. Gallagher, 100 Cal. 466, 476, 35 P. 80; People v. Dole, 122 Cal. 486, 491, 55 P. 581; People v. Creeks, 170 Cal. 368, 379, 149 P. 821, and there is nothing in the 1935 amendment to indicate any intent to establish a special rule governing the scope of cross-examination of a defendant in a criminal case. See 3 Wharton on Criminal Evidence...