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District Court of Appeal, Second District, Division 1, California.


Cr. 2782.

Decided: November 18, 1935

Gladys Towles Root, of Los Angeles, for appellant. U. S. Webb, Atty. Gen., and Warner I. Praul, Deputy Atty. Gen., for the People.

Defendant appeals “from the judgment and sentence of conviction * * * and from the order denying the defendant the right to file her application for probation.”

The record herein shows that the offense of which defendant was convicted was that of “grand theft from the person.” According to the testimony given on the trial of the action by one of the arresting officers (in which he was largely corroborated by another police officer), the crime was committed by defendant in the following manner: “Mrs. Henig (the alleged victim) was coming east toward Broadway in this aisle, about twenty or twenty-five feet from the Broadway side-walk and the defendant reached across in front of Mrs. Henig who was carrying her purse and some bundles slightly in front of her, she reached across and opened Mrs. Henig's bag with her left hand, and then passed her, or went on three or four steps, and then turned around and passed on Mrs. Henig's left side, and as she got even with her she reached across with her left hand and took the coin purse out of Mrs. Henig's bag. I was directly behind the defendant. So I reached around and grabbed her wrist and hands and as I did so she dropped the coin purse to the floor. So holding her hands with one of my hands, I reached down with the other onto the floor and picked up the purse. The defendant started to scream, ‘I didn't take it, I found it on the floor’ or words to that effect.”

The officer also testified that defendant later had made to him several damaging admissions regarding her guilt–which testimony was denied in toto by defendant.

Defendant's version of the matter was as follows: “There was a crowd of people, and I remember there was a place on one side that had drinks, and I walked on down that way, looking to see where the market stuff was, and I met this crowd of people, and I stumbled and I looked and there was a little pocket-book on the floor. I reached down to get it and this man grabbed my arm and said, ‘Come on,’ and I said, ‘Come on for what?’ I didn't know what he meant. He said, ‘Come on,’ and I never said anything. I looked up, and I seen the man and he said, ‘Come on,’ he said, ‘You took that lady's pocket-book.’ I said, ‘No, I didn't either.’ I said: ‘You turn me loose. I didn't take her pocket-book.’ And he pulled me through the crowd a little piece that way, and the crowd was so crowded, he turned around and come back this way, so I didn't know what lady it was until I got back through there and he stopped this lady and I looked up, and he said, ‘Did you lose something?’ and she said, ‘Yes,’ and I said, ‘Well, he has got it.”’

The first point raised by appellant is that the trial court erred in admitting evidence presented by the people regarding other alleged offenses said to have been committed by defendant and not charged against her in the information. In that regard, in substance, it appears that over the objection of defendant, the arresting officer testified that in a store, other than the one in which the arrest took place, at a time about twenty minutes theretofore, he saw defendant attempt to pick the pocket of a woman. The officer stated that “she (defendant) kind of got down on her left knee and reached down and opened the lady's purse.” Also, in a third store, at about the same time, “she (defendant) opened another purse at one of the five-and-ten-cent stores. * * * She opened a lady's purse as they went into the second or third five-and-ten-cent store, after the first one–I don't know which one of the stores it was. It was so crowded there, that they crowded through, and I didn't get close enough to tell what happened. Then she turned around and came out of the store and I followed her into the Grand Central.”

The only theory upon which the questioned testimony was presented to and received by the court for the consideration of the jury was that it tended to show “intent” of defendant.

One of the exceptions to the general rule, that evidence of the commission by a defendant of offenses other than the one for which he may be on trial is inadmissible, is that it may be received to show “intent” of such defendant, provided that his “intent” originally was, or during the course of the trial has become, an issue; as where it is claimed that the act in question was free from felonious intent, or was the result of mistake, accident, or inadvertence. 8 Cal. Jur. 64. But it is also equally well-settled law that “the evidence (of the commission by the defendant of other offenses) is inadmissible if the proof of the commission of the offense carries with it a conclusive implication of guilty intent, or if intent is immaterial, or if the defendant sets up some affirmative defense and does not seek to evade responsibility on the ground of lack of intent.” 8 Cal. Jur. 64. See, also, People v. O'Brien, 96 Cal. 171, 31 P. 45; People v. Byrnes, 27 Cal. App. 79, 148 P. 944; People v. Dial, 28 Cal. App. 704, 153 P. 970; People v. King, 23 Cal. App. 259, 137 P. 1076; People v. Wash-burn, 104 Cal. App. 662, 286 P. 711.

It is apparent that if, in the instant case, the defendant first opened Mrs. Henig's handbag, and a few seconds later abstracted her purse therefrom, a presumption, or at least an inference, would obtain that the defendant had stolen the purse, and was guilty of “grand theft from the person.” In such circumstances, the presumption of guilty intent of defendant would have followed as a matter of law; and unless thereafter defendant had raised the question of intent, or had made an issue of it, there would have been no occasion for the people to strengthen that which would seem to have been its position in that regard. Of course, for example, had defendant testified that Mrs. Henig was a friend of defendant and that defendant was only playing a joke on Mrs. Henig; or that the taking of the purse was the result of a mistake, such as that defendant had just lost her own purse and thought it was her purse that she took from Mrs. Henig's handbag; or that, as she passed Mrs. Henig, defendant slipped on the floor of the storeroom, and as she fell she just happened, inadvertently, to take hold of Mrs. Henig's purse–the issue of intent on the part of defendant might have been presented in the case. But on the trial of the action, no such situation, or anything analogous thereto, prevailed. To the contrary, without waiting for any defense testimony, the prosecution introduced all of its evidence with reference to “other offenses” of defendant as a part of its case in chief. Defendant did not admit that she had ever taken the purse from the handbag, nor by any evidence did she raise the issue of intent. As hereinbefore has been narrated, her story was to the effect that, although the purse was temporarily in her possession, its presence there was due solely to the fact that she had fallen on the floor of the storeroom, and that she had there found the purse. Considering the character of the alleged offense and the manner of its asserted commission, the admission of evidence of “other offenses” was erroneous.

In effect, appellant also urges the point that at the close of the case in chief for the prosecution, the deputy district attorney in charge thereof was guilty of misconduct prejudicial to defendant, in that without either first, or ever, offering or making any reference whatsoever to any “record” as evidence against defendant, he made the following statement to the court in the presence of the jury:

“That is our last evidence. I believe the record of this court is the best record as to the flight. I would like to ask the court to advise the jury as to flight. I will submit that the record of this court will show that on the 23rd of July the case of this defendant was called for trial and that the defendant was not present–June it was–her bail was forfeited and she was extradicted from Kansas City, Missouri. After she was charged with the offense, she resorted to flight and that clearly comes within the rule that the jury may take into consideration the element of flight as an indication of guilt.

“The Court: The record may be deemed in evidence.”

It is clear that whatever the “record” may have been, it was improper for the deputy district attorney to declare that it showed “flight”; or that defendant “resorted to flight”; and that “she was extradicted from Kansas City.” The deputy district attorney had not been called as a witness for the people, nor had he any authority to express an opinion with reference to what was shown by the “record.” After having been properly introduced in evidence, the question as to what that “record” disclosed was one that should have been left solely to the jury for its determination; excepting only that in his argument to the jury, the deputy district attorney might then have pointed out that which he contended were inferences properly deducible from such “record.” It may well be that, in the absence of any such declarations by the deputy district attorney, the jury might have believed from the evidence that defendant had a valid reason, or at least an acceptable excuse, for not being present in court at the time the action against her was called for trial.

Likewise, appellant complains of misconduct by the judge of the court as appears in the redirect testimony of defendant. In that regard, the reporter's transcript of the evidence herein reveals the situation that the attorney for defendant was pursuing the examination of defendant with reference to her having been placed in jail by the direction of her bondsmen at Kansas City, at Topeka, and at Denver. Whereupon, without any apparent reason therefor, the judge of the trial court remarked: “Of course, all this time she was a fugitive from justice.”

It is obvious that such a remark by the trial judge may have had a disastrous effect upon the case of defendant.

Without herein setting forth the record with reference thereto, the deputy district attorney was guilty of further misconduct in gratuitously and repeatedly questioning the defendant in the course of her cross-examination as to whether, while in Kansas City, “she had not been arrested and placed in jail there on a charge of picking pockets.”

Although the record fails to show that objection was made by defendant regarding many of the several foregoing instances of misconduct, it is apparent that any remonstrance which might have been made thereto in her behalf would have but emphasized the effect of the said several objectionable statements and questions. The possible effect upon the jury of the several errors, to which reference hereinbefore has been had, is admirably (and appropriately to the facts herein) set forth in the case of People v. King, 23 Cal. App. 259, 263, 137 P. 1076, to which attention is directed.

The judgment is reversed, and the appeal from the order to which appellant has directed attention is dismissed.

HOUSER, Presiding Justice.

We concur: YORK, J.; DORAN, J.

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