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District Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Appellant, v. Lucille Mae ROUBUS, Defendant and Respondent.

Cr. 205.

Decided: March 09, 1966

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Raymond M. Momboisse, Deputy Atty. Gen., Sacramento, for appellant. Frad, Ruggieri, Brunn & Lacey, by A. M. Frad, Modesto, for respondent.

The People appealed from an order granting the defendant a new trial in a perjury case in which the jury had found her guilty, notwithstanding an instruction for an advisory verdict in her favor. Lucille Mae Roubus had been a key witness for the defendant in the case of People v. Davenport which went to trial in Modesto on April 28, 1964; the charge in that case was a violation of Penal Code section 12021, possession of a forbidden firearm by a felon. Mrs. Roubus testified in that action that she had been the owner and possessor of the pistol in question for many years, that it had been given to her by one Ralph Hancock, and that it was the only gun she had ever owned, that she never loaned it to anyone.

In the information in the present case, the alleged perjury was thus stated:

‘MR. PETERSEN: I'd like to show the witness the .22, or have you shown it to her.

‘THE COURT: All right, the clerk will do so.

‘MR. PETERSEN: And also the .38. The .22, please first. What is that exhibit number?

‘THE WITNESS: That's my gun there.

‘Q. That's your gun?

‘A. That's my gun.

‘Q. What is the exhibit number, for the record?

‘THE CLERK: Exhibit Number 3.

‘MR. PETERSEN: Exhibit Number 3. That's your gun?

‘A. That's my gun.

‘Q. How long have you owned that gun?

‘A. I guess I've had it about, oh, six or eight years.

‘Q. Why do you have that gun, why do you own it?

‘A. Well, it was given to me.

‘(Cross examination by Mr. Geddes)

‘Q. Now, you were shown a .22 revolver, I guess, or pistol, whatever you want to call it?

‘A. Uh-huh.

‘Q. And I believe you testified that was your gun?

‘A. Yes.

‘Q. That is your gun?

‘A. Yes.

‘Q. And how long have you owned that gun?

‘A. Well, I guess about six or eight years, something like that, a long time.

‘Q. You recall where you got it?

‘A. Well, yes, a friend of mine give it to me.

‘Q. You recall who that was?

‘A. Ralph Hancock.

‘Q. Do you have any other guns?

‘A. No.

‘Q. That's the only gun you own?

‘A. That's the only gun.

‘Q. Did you ever loan this gun to anyone?

‘A. I sure didn't.

‘Q. For the past six or eight years, then, this gun has been in your possession, is that correct?

‘A. That's right, I never even bothered—I didn't even have no thoughts of bothering it.

‘Q. And that's the only gun that you've owned, is that correct?

‘A. That's right.’

The information further avers that the revolver ‘* * * was not in the possession of the said LUCILLE MAE ROUBUS for the past six to eight years', but that on the contrary on May 29, 1961, H. H. MacDannald

‘* * * a firearms dealer, had in his possession the said Roscoe Vest Pocket Revolver and sold said Revolver on that date to a JAMES RAYMOND GRANT. The said Revolver was a new Revolver and this was the first sale of said Revolver. That the said JAMES RAYMOND GRANT maintained possession of the said Roscoe Vest Pocket Revolver for approximately one year, at which time he traded it to ALBERT HENDRIQUES. That the said ALBERT HENDRIQUES had possession of the said Roscoe Vest Pocket Revolver for approximately one year and one-half, at which time he gave the said Revolver to JOE HENDRIQUES. That the said JOE HENDRIQUES had possession of the said Revolver for approximately two months, at which time said Revolver was found missing from his place of business.

‘That the said false testimony, statements and things sworn to and given in evidence by the said LUCILLE MAE ROUBUS, as aforesaid, was and were then and there material to the issues tendered in said cause pending in the Superior Court of the State of California, to wit: That said testimony was offered by the defendant in the said criminal action as alleged proof that NORMAN LESLIE DAVENPORT did not have in his possession, custody or control the said .22 caliber revolver.

‘That in truth and in fact, as she, the said LUCILLE MAE ROUBUS, then and there well knew, all of said testimony and statements and things so given, sworn to and stated by the said LUCILLE MAE ROUBUS, in the evidence aforesaid, were then and there false and untrue, whereby she, the said LUCILLE MAE ROUBUS, did then and there, as aforesaid, feloniously, wilfully, knowingly, and corruptly swear false and commit perjury.’

This revolver according to the testimony of witness MacDannald, a storekeeper, was first sold by him on May 29, 1961, to one James Jack Raymond Grant. Mr. Grant had never owned a gun of that type, as he himself later testified; he kept the pistol for four or five months and then traded it to Albert Henriques who was also a witness. After about a year or two, he gave the weapon to his older brother, Joe Henriques. The latter kept the pistol in his store after he acquired it, but the gun was no longer there when he sold the business in October of 1963; the assumption is that somebody had stolen it from him.

The Modesto police were called on February 16, 1964, to investigate a complaint that Davenport, an ex-felon, had forbidden weapons in his possession; when they arrived at the scene of activities, they were met by the respondent. One Cecilia White also approached them and said that there was a small pistol in the house at 517 Benson Street, and the officers found the loaded revolver in question at that location. When respondent saw the pistol, she quickly informed the police that it was hers and that she had left it in a closet at 519 1/2 Benson Street when she had moved in the front house located at 519 Benson Street; at that time she stated that Cecilia White had stolen the weapon from her. She was asked whether she had left it in a loaded condition; she at first said that she had no shells for the gun; however, when she was told that the revolver was loaded, she changed her story and said that possibly she had left it loaded, but she didn't recall.

The record shows that on February 18th the police officer again talked with respondent at which time she repeated that the gun was hers, and said that it had been in her possession while Davenport had been in Texas. On February 21st, she told the police once more that the gun had been in her possession for approximately six years, and that it was a gift from Ralph Hancock. She stood by her story at the time of her arrest on October 20th; on April 23rd, 1964, at the time of the Davenport trial, in the hallway, she averred that she had the gun for twelve years, and that she had loaded it and placed it in her closet in the house on Benson Street.

The trial court believed that the State had not met the quantum of proof necessary in a perjury case. But the judge was quite explicit in his viewpoint as to the guilt of the defendant at the time he granted the motion for a new trial, saying to the defense attorney ‘* * * while it may not have been proven legally, I am satisfied your client is a liar. I am also satisfied she directly, intentionally committed perjury on the witness stand. I am satisfied she is a disgrace to all of the law procedure that there are as far as I am concerned. don't take perjury lightly. While I realize she may be escaping perjury on a technicality in this particular case, I think she is going to have to live with herself and her disrespect. You may say this is unfair. This may be escaping conviction, very frankly, on a very technical legal point in this matter, and I want that very clear.’

The trial judge granted the motion for a new trial on one ground and one ground only, namely, that he thought that the technical requirements of proof in a perjury case had not been observed in that he believed that the essential facts were proven by inference rather than by the direct testimony of at least one witness. It is not questioned that the corroborating circumstances were present if there was one witness who directly testified to facts which were inconsistent with the declarations of Mrs. Roubus relative to the ownership of the pistol by her. Section 1103a of the Penal Code provides ‘Perjury must be proved by the testimony of two witnesses, or of one witness and corroborating circumstances.’ (Italics added.)

There must be at least one witness who gives direct testimony showing the falsity of defendant's sworn statement. This does not mean, of course, that a witness must give his opinion as to whether the defendant is guilty of perjury, but he must directly testify to facts which are in conflict with what the defendant has previously testified to under oath. (People v. O'Donnell, 132 Cal.App.2d 840, 283 P.2d 714.) Circumstantial evidence alone is not sufficient to prove the guilt of one accused of perjury. People v. Pustau, 39 Cal.App.2d 407, 103 P.2d 224 and People v. Macken, 32 Cal.App.2d 31, 89 P.2d 173, point out that there must be positive evidence as to facts absolutely incompatible with the accused's innocence.

Section 18311 of the Code of Civil Procedure defines direct evidence as follows:

‘Direct evidence is that which proves the fact in dispute, directly, without an inference or presumption, and which in itself, if true, conclusively establishes that fact.’

(See People v. Chadwick, 4 Cal.App. 63, 87 P. 384, 389; People v. Macken, supra, 32 Cal.App.2d 31, 89 P.2d 173.) Positive evidence is the direct proof of a fact and like direct evidence is unaided by presumptions or inferences.

As is pointed out in People v. Di Giacomo, 193 Cal.App.2d 688, 693, 14 Cal.Rptr. 574, 577:

‘To fulfill the minimum requirements of the statute there must be at least the positive testimony of one witness furnishing direct evidence of facts that are absolutely incompatible with the innocence of the accused, ‘corroborated by circumstances which, of themselves and independently of such directly inculpatory evidence, tend, with a reasonable degree of certitude, to show that the accused is guilty as charged.’ People v. Casanova, 54 Cal.App. 439, 442–443, 202 P. 45, 47; People v. Porter, supra, 104 Cal. 415, 418, 38 P. 88; People v. Barry, supra, 153 Cal.App.2d 193, 206, 314 P.2d 531; People v. O'Donnell, supra, 132 Cal.App.2d 840, 845, 283 P.2d 714; People v. Macken, supra, 32 Cal.App.2d 31, 35, 89 P.2d 173; People v. Burcham, supra, 69 Cal.App. 614, 620, 232 P. 149. For the purposes in question direct evidence ‘includes any positive testimony of a contrary state of facts from that sworn to by [the accused] at the former trial, or which is absolutely incompatible with his evidence, or physically inconsistent with the facts so testified to by him.’ People v. Chadwick, 4 Cal.App. 63, 70, 87 P. 384, 387; People v. O'Donnell, supra, 132 Cal.App.2d 840, 845, 283 P.2d 714; People v. Macken, supra, 32 Cal.App.2d 31, 35, 89 P.2d 173.'

Indirect evidence is thus defined in section 18322 of the Code of Civil Procedure:

‘Indirect evidence is that which tends to establish the fact in dispute by proving another, and which, though true, does not of itself conclusively establish that fact, but which affords an inference or presumption of its existence.’

The case turns on whether Mr. MacDannald who originally owned the gun as a storekeeper gave direct or positive evidence that he did in fact sell it to the witness Grant. At the time of the sale of the pistol, Mr. MacDannald made out a record of sale, in triplicate, in accordance with law, containing a description of the weapon, including the number stamped on its metal frame, (Pen.Code, §§ 12076 and 12077); he frankly admitted that he did not independently recollect the number on the revolver, but using his own copy of the report relative to the sale, he noted the number there stated to verify the identity of the particular pistol which he sold at that time, and which was in evidence as he testified. The jury could see by looking at the exhibit, consisting of the pistol itself, that it was the identical number which was stamped on the metal frame of the gun. Mr. MacDannald testified that he is in the general merchandise and jewelry business and also sells firearms, having been a licensed firearms dealer for the past six or eight years. It was his custom and practice, required by law, that when he sold a gun, he made a record in triplicate contemporaneously putting down the kind of pistol, the length of the barrel, whether it was blue or nickel plated, the maker and serial number, the purchaser's name and address and his general description. He also noted whether the purchaser had ever been convicted of a felony by his own admission, if he used narcotics of any kind and something, in addition, to establish the identity of the purchaser, like a car registration or driver's license. Of the three copies of the report, one was kept by himself, one was sent to the Chief of Police of the City of Modesto, and one to the Division of Criminal Identification at Sacramento.

He was asked:

‘Q. And did you have occasion on that date [May 29, 1961] to make a sale of a .22 Roscoe vest pocket revolver or pistol?

‘A. Yes, at 3:00 P.M. on May 29, 1961.

‘Q. And who did you have occasion to make that sale to?

‘A. To James Jack Raymond Grant.’

By consulting his own copy of the record of sale of the pistol, he stated that the serial number on the revolver so sold was T–492264 and that corresponded with the number on the pistol in evidence. As he stated:

‘This gun tallies with my record in the book.

‘Q. Is this the same gun by your record that was sold to Mr. Grant?

‘A. Yes.’

The witness admitted that the particular kind of pistol was a very common type and that he had sold some thirty-five or forty of them since he started carrying the weapon in stock in 1959. The report relative to the sale was introduced into evidence without objection by counsel for the defendant. On cross-examination Mr. MacDannald said that in identifying a specific pistol, he would have to look at the serial number on the weapon ‘because they are exactly alike.’ He further stated in answer to the question:

‘Q. The only way you can tell is by a serial number?

‘A. Yes, that is right.’

In an attempt to break down the effect of the witness's testimony, he was asked on cross-examination:

‘Q. Now as a gun dealer, do you know that gun manufacturers use the same number on different guns, and occasionally use the same number on the same type of gun?

‘A. That I wouldn't know, no.’

On re-direct examination, the witness testified that this was a new pistol and he was asked:

‘Q. And to your knowledge have you ever seen two pistols or revolvers with the same serial number?

‘A. No, I have not. Of course I have never—I had no reason to search back through the record to see, but as far as I can remember, I have never seen any two.’

On re-cross examination the following question was asked by defense counsel:

‘Q. Do you retain in your mind the numbers of guns as you go along?

‘A. No.

‘Q. And so that there would be—actually it would be practically physically impossible for you to remember from one gun to another unless you went up there and compared a lot of them, is that right?

‘A. That is right.’

It will be seen from the foregoing that Mr. MacDannald was indeed a witness who testified directly that he sold the gun which was in evidence to a Mr. Grant on May 29, 1961. The trial of the instant case took place on May 3, 1965, and it is therefore obvious that the evidence is directly contrary in its effect to the evidence of Mrs. Roubus that she had owned the gun for six, eight or twelve years prior to April 28, 1964. Either she was telling the truth or she was committing perjury when she so stated on the witness stand during the trial of People v. Davenport. In the process of giving his direct testimony, the witness MacDannald refreshed his recollection as to the number on the pistol by referring to a required report relative to the sale of weapons which he had made himself contemporaneously with the sale. This he had a right to do. (Code Civ.Proc. § 20473 ; People v. Verodi, 150 Cal.App.2d 137, 148–150, 309 P.2d 568; People v. Gardner, 147 Cal.App.2d 530, 540, 305 P.2d 614; People v. Vera, 131 Cal.App.2d 669, 674–676, 281 P.2d 65; People v. Burwell, 44 Cal.2d 16, 35–36, 279 P.2d 744; Witkin, California Evidence, § 597, pp. 650–651, and § 603, p. 654; People v. Sigal, 235 Cal.App.2d 449, 45 Cal.Rptr. 481; People v. James, 155 Cal.App.2d 604, 609–610, 318 P.2d 175.)

Without going further, therefore, we think it is clear that the learned trial judge was mistaken in his view that there was no direct evidence by a witness that satisfied the requirement relative to the quantum of proof in a perjury case. Whether or not the People's evidence was true, or whether, on the contrary, Mrs. Roubus' statements of fact were correct, was a question for the jury.

The gratuitous statement in respondent's brief: ‘It is a well known fact by police officers that many guns are all exactly alike, have the same serial number * * *’ is not a matter of judicial knowledge; on the contrary, it is a fact of common experience in life that usually when identical articles of personal property are manufactured, each bearing a serial number, the intent and usual practice of the manufacturer is to put a different identifying numeral on each of the articles. The manufacturer's stamped number on the gun is considered a mark of identification by the Legislature (Pen.Code, §§ 12090 and 12094). In any event, it was for the jury to ascertain the facts, and their finding of guilt, contrary to the advice of the court, is an indication that they thought it was clear that perjury had been committed.

The order granting a new trial is reversed.


FN1. Section 1831 was repealed by Statutes 1965, chapter 299, page 1359, section 32, operative January 1, 1967; subject matter is covered in Evidence Code section 410..  FN1. Section 1831 was repealed by Statutes 1965, chapter 299, page 1359, section 32, operative January 1, 1967; subject matter is covered in Evidence Code section 410.

FN2. Section 1832 was repealed by Statutes 1965, chapter 299, page 1359, section 33, operative January 1, 1967..  FN2. Section 1832 was repealed by Statutes 1965, chapter 299, page 1359, section 33, operative January 1, 1967.

3.  Section 2047 was repealed by Statutes 1965, chapter 299, page 1366, section 126, operative January 1, 1967. The subject matter will be found in the Evidence Code sections 771 and 1237.

CONLEY, Presiding Justice.

STONE, J., concurs. RALPH M. BROWN, J., deeming himself disqualified, did not participate.

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