Reset A A Font size: Print

Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Morris GENSER, David Benjamin Koffman and James E. Edling, Defendants and Appellants.

Cr. 10633.

Decided: April 24, 1967

Max Solomon, by John J. Bradley, Los Angeles, for appellant genser. Burton Marks, Beverly Hills, for appellant Koffman. Appeal of Edling has not been perfected and has heretofore been dismissed. (Rule 17(a)). Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Jack E. Goertzen, Deputy Atty. Gen., Evelle J. Younger, Dist. Atty., David Fuchs, Deputy Dist. Atty., for respondent.

We granted a rehearing in this case for the sole purpose of considering the effect of Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 and Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 on our judgments sustaining the conviction of appellants.

Among the counts of which appellant Genser was convicted, were two charging perjury. Count XVII charged that on May 14, 1963, while testifying under oath before a deputy attorney general authorized to conduct an investigation into corruption and irregularities among DMV personnel, Genser falsely denied acquiring automobiles through manufacturers' representatives for persons other than himself. Count XX charged that on May 15, 1963, as part of the same investigation into DMV employee activities, Genser under oath falsely denied knowledge or participation in the dismissal of a misdemeanor criminal complaint against the Ed Shuey automobile agency.

It was stipulated at the trial that Genser, under oath, made the statements upon which the said two counts are based because it was probable that Genser knew he might lose his position if he refused to cooperate and answer questions.1

Garrity holds that incriminating statements made under circumstances such as those which are present here are within the scope of the privilege granted by the Fifth Amendment of the United States Constitution and accordingly that such statements may not be used against an employee in a subsequent prosecution based upon criminal conduct admitted therein.

In Garrity, supra, the court says 87 S.Ct. at p. 618, 17 L.Ed.2d at pp. 565—566:

‘The choice given appellants was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent. That practice, like interrogation practice we reviewed in Miranda v. State of Arizona, 384 U.S. 436, 464—465, 86 S.Ct. 1602, 1623, 16 L.Ed.2d 694, 718, 10 A.L.R.3d 974, is ‘likely to exert such pressure upon an individual as to disable him from making a free and rational choice.’ We think the confessions were infected by the coercion inherent in this scheme of questioning and cannot be sustained as voluntary under our prior decisions.'

Genser asserts that he could not, under the circumstances here detailed, have made false statements wilfully in the sense that word is used in our perjury statute. (Cf. People v. Kuhn, 216 Cal.App.2d 695, 697—699, 31 Cal.Rptr. 253.)

Conceding that under the Garrity rule Genser's decision to make the statements upon which the perjury counts are based, was not a voluntary one, the specific question presented to this court is whether one compelled to make sworn statements under compulsion such as illustrated by the facts at bench, has a license to make untruthful statements. We think not.

Garrity's specific holding is that incriminating statements made under such circumstances may not be received in evidence in a subsequent prosecution based upon a crime revealed therein. However, even if Garrity had gone further and extended a complete ‘implied immunity’ from prosecution for the crime revealed, the result would not be different.

In Glickstein v. United States (1911), 222 U.S. 139, 32 S.Ct. 71, 56 L.Ed. 128, a bankrupt as required under the bankruptcy statute did make statements under oath at a first meeting of his creditors which were false. Immunity from prosecution was afforded to bankrupts under subsection 9 of the Bankruptcy Act in effect at that time.

Glickstein, having been convicted in the trial court of having committed perjury in the making of such statements, appealed to the Fifth Circuit and that court certified to the Supreme Court the following question:

“Is subsec. 9 and the immunity afforded by it applicable to a prosecution for perjury committed by the bankrupt when examined under it?” (Glickstein, supra, 222 U.S. 139, 140, 32 S.Ct. 71, 72.)

The United States Supreme Court analyzes the privilege granted under the Fifth Amendment and the power of the Government to compel testimony despite the constitutional privilege when immunity is given. It says at pp. 141—143, 32 S.Ct. at p. 73: ‘* * * an authority which can only extend to the licensing of perjury is not a power to compel the giving of testimony.’

The court then cites certain federal statutes which provide specifically that immunity given under the Fifth Amendment shall not extend to ‘* * * exempt any party * * * from prosecution * * * for perjury * * *.’

No similar California statutes have been called to our attention. Assuming there are none, Glickstein, supra, anticipates such an omission. The court says at pp. 141—143, 32 S.Ct. at p. 73:

‘In other words, the sole question is, Does the statute, in compelling the giving of testimony, confer an immunity wider than that guaranteed by the Constitution? The argument to maintain that it does is that, as the statute provides for immunity, and does not contain the reservation found in either s 860, Rev.Stat., or that embodied in the act of 1893, therefore, under the rule that the inclusion of one is the exclusion of the other, such reservation cannot be implied. Or, to state the proposition in another form, it is that as the statute in the immunity clause says, ‘But no testimony given by him (the witness who is compelled to be examined) shall be offered in evidence against him in any criminal proceeding,’ and as these words are unambiguous, there is no room for limiting the language so as to cause the immunity provision not to prohibit the offer of the testimony in a criminal prosecution for perjury. But the contention assumes the question for decision, since it excludes the possibility of construction when, on the face of the statute the meaning attributed to the immunity clause cannot be given to it without destroying the words of the statute and frustrating its obvious object and intent. This may not be denied, since the statute expressly commands the giving of testimony, and its manifest purpose is to secure truthful testimony, while the limited and exclusive meaning which the contention attributes to the immunity clause would cause the section to be a mere license to commit perjury, and hence not to command the giving of testimony in the true sense of the word.

‘The argument that because the section does not contain an expression of the reservation of a right to prosecute for perjury in harmony with the reservations in Rev.Stat., s 860, and the act of 1893, therefore it is to be presumed that it was intended that no such right should exist, we think, simply begs the question for decision, since it is impossible in reason to conceive that Congress commanded the giving of testimony, and at the same time intended that false testimony might be given with impunity, in the absence of the most express and specific command to that effect.

‘Bearing in mind the subject dealt with, we think the reservation of the right to prosecute for perjury, made in the statutes to which we have referred, was but the manifestation of abundant caution; and hence, the absence of such reservation in the statute under consideration may not be taken as indicative of an intention on the part of Congress that perjury might be committed at pleasure.

‘Some of the considerations which we have pointed out were accurately expounded in Edelstein v. United States, 9 L.R.A. (N.S.) 236, 79 C.C.A. 328, 149 F. 636, by the circuit court of appeals for the eighth circuit, and in Wechsler v. United States, 86 C.C.A. 37, 158 F. 579, by the circuit court of appeals for the second circuit. And this leads us to observe that the necessary result of the conclusion now reached is to disapprove the opinions in Re Marx, D.C., 102 F. 676, and Re Logan, D.C., 102 F. 876.

‘It follows that the question propounded must receive a negative answer, and our order will be, question certified answered ‘No.“

The few cases cited to us indicate the same conclusions. (Commonwealth v. Knight, 12 Mass. 274 (1815); Bain v. State, 67 Miss. 557, 7 So. 408 (1890); Hardin v. State, 85 Tex.Cr.R. 220, 211 S.W. 233, 240, 4 A.L.R. 1308 (1919).)

It follows that the reliance of appellants upon Garrity and Spevack is misplaced.

In all other respects we reiterate what we have said in our former opinion, People v. Genser et a., 248 A.C.A. 294, 56 Cal.Rptr. 380.

The judgments of conviction are affirmed.


1.  At a conference in chambers, with counsel present, the deputy district attorney stated: ‘I am willing to stipulate * * * that if any person who was then employed by the Department of Motor Vehicles * * * refused to go to the District Attorney's Office or rerefused to answer questions, that he would be fired. * * * I will stipulate that that fact probably came to their attention, * * * they had a choice of either not going at all and being fired or going and trying to handle the situation as best they could.’

ROTH, Presiding Justice.

HERNDON and FLEMING, JJ., concur. Hearing denied; MOSK, J., not participating.