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


Cr. 4465.

Decided: September 21, 1950

Enger & Hiller, Los Angeles, Louis Thomas Hiller, Henry S. Gross, Jr., Los Angeles, of counsel, for appellant. Fred N. Howser, Attorney General, William E. James, Deputy Attorney General, for respondent.

Defendants were charged with grand theft and a violation of Section 13 of the Dangerous Weapons Control Law of 1923, Gen. Laws, Act 1970. Following a conviction on both counts of the information, defendant Wissenfeld alone prosecutes this appeal.

It is contended on appeal that,

1. ‘The evidence, as a matter of law, is insufficient to sustain a conviction of the crimes as charged in the information.’

2. That ‘There was judicial error in the ruling on the exceptions to the cross-examination of witness Luke.’

3. That ‘There was misconduct of the trial judge in instructing the jury during the absence of both defendant and his counsel.’

The record reveals that on the night of August 16 Officers Shaw and Milevich in a police patrol car stopped the car in which the three defendants were riding because its rear license plate ‘was obviously wired on and was swinging’. The three defendants were in the front seat; defendant Wissenfeld was driving the car. Officer Shaw testified to the following conversation with defendant Wissenfeld at this time, ‘I said, ‘What seems to be the trouble with your license plate?’ And he looked at it and said that he thought it would stay on and I asked him if the car belonged to him. When he didn't answer the question and said several times he was staying at the Wilton Hotel, I questioned him further about the ownership of the car and he said it belonged to a friend in Los Angeles.

‘Q. Did you ask him anything further concerning the friend? A. When I asked what his friend's name was he said he didn't know.’

On cross-examination the witness testified.

‘Q. In other words, all you did in this particular case was to make the arrest? A. Yes.

‘Q. After that you turned it over to the investigating officers? A. That is correct.

‘Q. And you have told us practically all of the conversation that you had with the defendants at that time? A. All that I remember.

‘Q. All that you remember. I take it that at that time you didn't know this car was stolen? A. I assumed that.

‘Q. You didn't know it. A. I didn't know it.

‘Q. And that is the reason you didn't ask them any questions about stolen automobiles, isn't that correct? A. Well, I did ask them about the ownership of the automobile and so forth.

‘Q. He told you it was a friend's? A. He didn't say as to who owned it or whether he owned it.’

An automatic and a .32 calibre revolver wrapped in a paper bag were found in the glove compartment of the car. The number on the revolver had been obliterated. In reply to questions regarding these guns defendant Wissenfeld replied to the officers, ‘Well, I don't know anything about the guns.’ There is no evidence of any admission of guilt by defendant Wissenfeld as to either count.

Defendant Luke pleaded guilty and in connection with the theft of the car and the ownership of the guns testified as follows:

‘Q. Did you on or about the 22nd day of August, 1949, in the County of Los Angeles, State of California, take a certain motor vehicle, the property of Lucia Haskill, with the intent to deprive her of the use of that car? A. I did.

‘Q. Was Miss Diltz with you at anytime when you took that automobile? A. She was not.

‘Q. Was Mr. Wissenfeld with you at anytime you took that automobile? A. No.

‘Q. Did you ever tell Karyl Diltz at anytime that you stole the automobile? A. No, I didn't.

‘Q. Did you ever tell Jake Wissenfeld that you ever stole the automobile? A. No.

‘Q. Did you have in your possession or in this automobile on the date of your arrest, or was there in the glove compartment of the automobile, the date of your arrest, exhibit 2 in evidence, People's Exhibit 2? Look it over and see if that is the one. A. This is the firearm I had.

‘Q. Did Jake Wissenfeld or Kary Diltz file any of the numbers on this? A. No, they did not.

‘Q. Did you file the numbers off this gun? A. Yes.

‘Q. Did you ever tell Karyl Diltz or Jake Wissenfeld that you filed the numbers off or you had this gun in your possession? A. No, I didn't.

‘Q. Did you permit Mr. Wissenfeld to use your automobile to take out girl friends? A. Yes, I did.

‘Q. And at anytime did you ever tell him you had stolen this car? A. No.

‘Q. Do you know whether or not Karyl Diltz ever drove this car? A. She did not. She never drove it.

‘Q. When did you first meet Jake Wissenfeld? A. It was a Saturday night at the Toddle House in Culver City, the 27th of August, I believe the date was.

‘Q. And you had some conversation with Jake that night? A. Yes, I did.

‘Q. And without going into all the details, what was said? A. I told him I was looking for a job and I had transportation and if he heard anything, I knew, I heard he was a better and possibly he would know somebody who would have a job for me driving or something like that.

‘Q. So he told you he would put you to work? A. He said he might have something coming up and he would keep me in mind.

‘Q. By Mr. Zeman: What were your duties with Mr. Wissenfeld? A. I was supposed to drive him around to certain places in Hollywood and Beverly Hills and through Los Angeles to make bets and to pick up collections and he told me that sometimes in case he might have trouble making his collections, he might want me along for that reason.

‘Q. I see, and there were no particular hours, were there? A. None. No, there were no particular hours.

‘Q. Whenever he needed you? A. Yes.

‘Q. Did you have any definite arrangement for salary? A. He would keep me in spending money and pay all the bills. That was the agreement we came to.

‘Q. In other words, your salary depended on how lucky he got, is that right? A. That is correct.’

Several witnesses testified that defendant Wissenfeld did not have a car.

The only evidence of guilt was that appellant was driving the car at the time of the arrest.

Appellant cites People v. Zervas, 61 Cal.App.2d 381, 142 P.2d 946, which the respondent contends is not applicable because in the instant case the defendant was driving the car and refers to People v. Cole, 141 Cal. 88, 74 P. 547, and People v. Gonzales, 66 Cal.App. 646, 226 P. 946 as appropriate authority. The cited cases are of little help for in the within action the witness Luke testified to the theft of the car which evidence, in the light of the record, cannot be dismissed with the comment of respondent, ‘Thus, we need not concern ourselves with the ‘story’ told by the co-defendant Luke, whom the jury disbelieved'. Even if the defendant Luke had not testified the only evidence of guilt remains the same.

Without going into detail it is sufficient to note that the cross-examination of the witness Luke was prejudicial. Practically all of appellant's objections were overruled and much of the cross-examination was improper; Luke was not on trial.

With regard to the instructions, the court, in the absence of defendant and counsel when the verdicts were first returned stated, ‘As to the verdicts on 503, grand theft, you cannot find the same defendant guilty of both offenses, you must find the defendant guilty of one or the other. I do not know what your thought about it was, which one you intended to bring in, but you cannot bring in both. I am going to send you out again and you may come back with one or the other of these verdicts and indicate to us which one you want to be the verdict.’ (Italics added.)

A review of the record reveals that appellant did not receive the trial that a defendant in a criminal action is entitled to.

The judgment is reversed and the cause remanded for a new trial.

DORAN, Justice.

WHITE, P. J., and DRAPEAU, J., concur.

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