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District Court of Appeal, Third District, California.


Cr. 1480.

Decided: April 24, 1936

George Olshausen and George Andersen, both of San Francisco, for appellant. U. S. Webb, Atty. Gen., and Ralph H. Cowing, Deputy Atty. Gen., for the People.

The facts in this case are practically the same as in People v. Canales (Cal.App.) 55 P.(2d) 289. At the time of the arrest of Workman and Canales they were riding in the front seat of an automobile in the city of Jackson. Defendant was charged in an amended information with a violation of chapter 339 of the Statutes of 1923 (page 695), as amended in 1931 (St.1931, p. 2316), commonly known as the “Deadly Weapons Act,” the amended information alleging in substance that at a certain time and place defendant did “unlawfully, maliciously and feloniously possess an instrument or weapon of the kind commonly known as a billie.” Upon this information defendant was found guilty by a jury, and from the judgment of conviction thereon, prosecutes this appeal.

The first point urged by appellant is that the evidence is insufficient to support the verdict. This same question was raised in the case of People v. Canales and practically the same testimony was there under review as is presented in the instant case, and the contention was then answered adversely to the defendant; we here likewise find the evidence was entirely sufficient to support the verdict and judgment.

The principal contention here advanced for reversal, however, is the alleged error in overruling certain challenges for cause to prospective jurors. It is the claim of appellant that prospective jurors Marks and Stowers, were disqualified because the testimony given by them in answer to certain questions propounded upon their voir dire indicated that they would judge the witnesses on the basis of extra judicial knowledge of the sheriff of Amador county; that is to say, they would believe the testimony of the sheriff rather than the defendant or his witnesses because of the jurors' acquaintance with the sheriff and their knowledge of him as a man. As to prospective jurors Wait and Peyton, appellant claims the record shows they considered themselves to be deputy sheriffs, and were therefore disqualified.

We will first consider the objections to Marks and Stowers. Mr. Marks testified in part, to questions asked of him upon his voir dire, as follows:

“Q. You know Sheriff Lucot, do you? A. Yes sir. * * *

“Q. Do you feel you would be inclined to believe him in preference to other people? A. Yes sir.

“Q. In other words, you feel if Sheriff Lucot would testify you would attach such credibility to his testimony that you wouldn't believe the people who testified against him? A. I would be inclined to believe Mr. Lucot. * * *

“The Court: Q. You would not be influenced by your friendship for the sheriff? A. No, I don't think so; I would be inclined to believe him though. * * *

“Q. If the sheriff on the one hand told his story and if the defendant on the other hand told a contrasting story relating to this case, would you be inclined to believe Mr. Workman in preference to Mr. Lucot? A. No.

“Q. Would you be inclined to believe Mr. Lucot against Mr. Workman. I am talking only about friendship? A. No. * * *

“Q. Would you simply take their testimony at face value? A. I think I would.

“Q. Why would you attach greater credibility to the testimony of the sheriff and lesser credibility to the testimony of Workman? A. Because I know the sheriff better.

“Q. * * * If the sheriff told a story, in a sense gave testimony here, and assuming that his testimony were in fact false, and that the testimony of the defendant were in fact true, nevertheless due to your friendship or knowledge of the sheriff, you would believe the sheriff's testimony in preference to the testimony of this defendant? A. That would have to be proved to me.

“Q. What would have to be proved? A. The testimony.”

Mr. Stowers, when examined as to his qualifications as a juror testified:

“Q. For instance would you be inclined to give greater weight to the sheriff's testimony than you would to the testimony of the defendant whom you don't know? A. Sure. I think the sheriff's evidence is heavier than a common layman. * * *

“Q. Well, then, if the sheriff testified, as he will in this case, as the sheriff, then you would believe his testimony in preference to the testimony of a layman? A. Sure.

“Q. Even if the court instructs you to the contrary? A. Well, I am inclined to think if I was instructed to the contrary, of course, it would be different, I think his preponderates more than any other layman. * * *

“The Court: * * * Mr. Stowers, if the court should instruct you that the testimony of the defendant was entitled to the same credence and the same belief as the testimony of any other person, would you follow that instruction? A. I would.

“Mr. Andersen: Q. Then, you wouldn't give greater weight to Mr. Lucot's testimony? A. Not under those conditions, no.

“Q. Would you be willing to accept the testimony in the same light as you would accept anybody else's testimony? A. Yes.”

The people contend that not only were these prospective jurors not disqualified, but that the challenges were improperly made, and therefore appellant cannot now be heard to complain. The challenge to Mr. Marks was in substantial conformity with the provisions of section 1076 of the Penal Code. As to Mr. Stowers, counsel merely said: “I challenge the juror for cause.” The Court: “Denied. That is not a ground for challenge.” No further objection was made to Mr. Stowers, and he was finally sworn as a juror in the cause. This latter challenge was insufficient, but undoubtedly both court and counsel knew what the challenge was supposed to cover, as they had been discussing the objection just prior to the challenge. From an examination of the voir dire of these prospective jurors, however, it is apparent that there was a conflict in their testimony with regard to whether or not they would act upon extra judicial knowledge or would follow the instructions of the court. It could not therefore be said there was an abuse of discretion, and the trial court's decision under such circumstances will not be disturbed.

The rule is expressed in 15 California Jurisprudence p. 429, wherein it is said that many persons, competent jurors, being inexperienced as witnesses, are unable to comprehend the effect of the language in which questions are propounded to them, and as a result their answers are often conflicting and contradictory. It is therefore for the trial court to determine which of the answers most truly represent the state of the jurors' minds. Inasmuch as the trial judge is in the best position to pass upon the question of the jurors' aptitude, his decision on accepting a juror is ordinarily conclusive and will be reviewed only when it can be said as a matter of law that the juror was biased. We cannot here say there was an abuse of discretion.

The qualifications of the prospective jurors Wait and Peyton, who the defendant claims were disqualified by reason of the fact they either were or considered themselves to be deputy sheriffs, were developed by the following questions, asked first of Mr. Wait:

“Q. Do you belong to the American Protective League? A. Yes sir.

“Q. * * * And during the time you were a member of this organization, continuing through the strike and up to the present time, you have always held yourself as a deputy to sheriff Lucot? A. Yes sir.

“Q. You pledged yourself to be summoned, to be called upon at any time that immediately requested your presence? A. Yes sir.

“Q. And that was particularly to be in, at or near the vicinity of these mines to quell any picketing and striking at or near the mines, that is true, isn't it? A. Any disturbance. * * *

“Q. You knew that was one of the purposes of the American Protective League, didn't you? A. To assist the law enforcing officers. * * *

“Q. You consider yourself at the present time a deputy sheriff subject to the call of Sheriff Lucot? A. Subject to the call of the sheriff. * * *

“Q. Mr. Wait, have you ever been deputized? A. I came here to the office.

“Q. You have been deputized by the sheriff just as every member of the American Protective League was deputized, that is correct? A. Yes sir.

“The Court: Are you a deputy sheriff at the present time? A. No.”

In regard to Mr. Peyton, the following questions were asked and answered:

“Q. You were a deputy sheriff yourself weren't you? A. Supposed to be.

“Q. Supposed to be, you were deputized by Sheriff Lucot weren't you? A. Yes.

“Q. You still consider yourself a deputy sheriff don't you? A. If they call for me I suppose I am. * * *

“Q. Do you know the man's name who deputized you?

“Q. Who? A. Lucot.

“Q. Sheriff Lucot himself? A. Sure.

“Q. What did he tell you when he sent you out there? A. Go out there and keep peace, see there is no fighting or anything if you can help it.”

As to neither prospective jurors Wait nor Peyton was there any evidence of any act of appointment by the sheriff himself of these men as deputy sheriffs. Inasmuch as these men were not acting under color of an appointment, they cannot be held to be either deputy sheriffs or de facto officers. Merely because a person considers himself to be an officer is not sufficient to constitute him a de facto officer. These jurors were under the same obligation to an officer of the law as any citizen called upon to assist in preservation of the peace.

The court did not err in permitting the district attorney to ask prospective jurors if they or members of their family belonged to the Communist party. Counsel had the right to know whether or not the prospective juror ascribed to the doctrine that force and violence might properly be resorted to, to obtain the object sought. The district attorney had a right to know whether or not the prospective jurors believed in law and order as recognized under the established order of society, and the asking of the simple question was legitimate and appropriate. Appellant claims the asking of the question caused the jury to infer that he was a Communist, but we do not believe the asking of this proper question justifies the inference contended by appellant.

The defense also attempted to offer in evidence a hammer handle and a hatchet handle as a basis of comparison to decide whether or not “People's Exhibit I” was or was not a billie. Such evidence was properly excluded. It was the function of the jury to consider if “People's Exhibit I” was or was not a billie from the definition of such weapon in the Deadly Weapons Act, and the instructions of the court.

Some criticism is also made of the arguments of the district attorney to the effect that “Exhibit I” need not be such a weapon as was capable of being concealed upon the person. Whether or not this statement was correct is immaterial as the court instructed the jury as to what a billie was, stating in one place, “you are instructed that one of the principal tests of the characteristics of a billie is that it must be an object which can be easily and readily concealed upon one's person in such a way that it could be easily and quickly drawn from one's person for use as a weapon.”

It appears from the record that defendant was fairly tried and convicted, and no errors appearing in the record justifying a reversal, the judgment and the order are affirmed.

Mr. Presiding Justice PULLEN delivered the opinion of the court.

We concur: LEMMON, J. pro tem.; THOMPSON, J.

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