PEOPLE v. McKENNA (1937)

Defendant was convicted after trial by jury on:

(a) One count of perjury.

(b) Two counts of offering false evidence in violation of the provisions of section 132 of the Penal Code.

(c) Two counts of preparing false evidence in violation of the provisions of section 134 of the Penal Code.

(d) Two counts of forgery.

Defendant prior to the trial had filed a demurrer to all counts in the indictment, which was overruled.

From the judgments and orders denying her motions for a new trial defendant appeals.

Viewing the evidence most favorable to the prosecution (People v. Dukes, 90 Cal.App. 657, 659, 266 P. 558), the facts in the instant case are:

May 28, 1915, George M. and Rena W. Pierson executed and delivered two notes secured by two mortgages on certain real property, in which Edward Russek was named as mortgagee. Thereafter defendant acquired the mortgagor's interest in the mortgaged property and Louie S. Dexter acquired the mortgagee's interest in the above–mentioned notes and mortgages.

In 1926 an action was commenced by Louie S. Dexter to foreclose these mortgages, which ultimately resulted in a decree of foreclosure in favor of H. B. Busing as administrator of the estate of Louie S. Dexter, who had died after the commencement of the action and prior to the decree's becoming final. Busing v. Pierson et al., 1 Cal.(2d) 495, 36 P.(2d) 116.

July 16, 1936, defendant transferred her interest in the mortgaged property to her daughter W. P. Nichols and subsequently as attorney for W. P. Nichols commenced in her daughter's name (1) an action to enjoin the sale of the property pursuant to the decree of foreclosure referred to above and (2) a suit to quiet title to the real property described in the above–mentioned mortgages and decree of foreclosure. During the hearing of these two cases, which had been ordered consolidated for trial and which will hereafter in this opinion be referred to as the “consolidated cases,” defendant as an attorney at law for the plaintiff in the “consolidated cases” offered and there was received in evidence the following documents:

A

“Heirs Research and Recovery Bureau

“Stephen B. Dexter

“President and Manager

“316 Homer Laughlin Building

“Los Angeles, California

“Phone MAdison 6354

“Member of Los Angeles Chamber of Commerce

“Licensed and Bonded by State of California

“July 16, 1936

“Mrs. Catherine McKenna,

“Wilcox Building

“Los Angeles, Cal.

“Dear Mrs. McKenna:

“In keeping with the proposition made to you on yesterday touching upon certain quitclaim deeds to be issued to you covering the certain properties contained in two mortgages for $800 each, given a number of years ago by one George Pierson, said properties being located in the Ela View Tract, this City and County, I am enclosing said deeds, which are intended to and do convey all interest in and to said mortgages and notes, to grantee.

“In further keeping with our understanding on this matter, I have notified the Administrator of the Estate of Louie S. Dexter, deceased, of my course of action in this matter, as above stated, and have stated to him that any and all equity that Louie S. Dexter might have in this property as evidenced by that certain suit of Louie S. Dexter vs. George M. Pierson, et al, No. 200705, Superior Court, Los Angeles, California, should be identified and considered by him as having been passed over to yourself, as all of Louie S. Dexter's interest was passed to Golden State Holding Co. prior to her death. This statement is given under Notary Seal at your request.

“Very truly yours,

“On this 16th day of July 1936, before me, J. E. Light, a Notary Public in and for said County, personally appeared Stephen B. Dexter known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged that he executed the same.

“Witness my hand and official seal.

“[Seal] [Signed] J. E. Light

“Notary Public in and for said County and State”

The foregoing letter will be hereafter referred to as “Document A.” The italicized portions thereof were inserted by defendant after the document had been executed and notarized and without the knowledge or consent of the signatory to the letter.

B

“Assignment Of Mortgage

“For, and in consideration of the sum of Ten ($10.00) Dollars; in hand paid by the Golden State Holding Company, a Corporation, the receipt whereof is hereby acknowledged, I, Louis S. Dexter, do by these presents grant, bargain, sell and assign, transfer and set over unto the Golden State Holding Company, those two certain Indentures of Mortgages, bearing date the 28th day of May, 1915, made and executed by George M. Pierson, and Rena W. Pierson, his wife, Mortgagors, to Edward Russek, Mortgagee, and recorded on the 3rd day of June, 1915, in Book 3812 at page 182, and Book 3826 at page 217, of Mortgages, records of the Recorder's office of the County of Los Angeles, State of California, together with the therein described promissory notes, and the moneys due and to grow due thereon, with interest.

“To have and to hold, unto the said Golden State Holding Company, together with all my right, title and interest in and to the real property described in said mortgages, unto the said Golden State Holding Company, its successors and assigns, and for its use and benefit, subject only to the provisions in the said indentures of mortgages contained, and which said notes and mortgages are filed as exhibits in the case of Russek vs. Pierson, No. B 83046 in the Superior Court of the State of California, in and for the County of Los Angeles:

“That, the said Louie S. Dexter, the party of the first part, does hereby make, constitute and appoint the aforesaid Golden State Holding Company, the party of the second part, her true and lawful attorney, irrevocable, in her name, or otherwise, but at the proper cost and charge of the said second party to have, use and take all lawful ways and means for the recovery of the said money, and interest; and in case of payment to discharge the same as fully as I could or might do if these presents were not made, together with the right to be substituted in any action for the foreclosure of the said Mortgages:

“In witness whereof, I have hereunto set my hand and seal this 28th day of February, 1927.

“Louie S. Dexter

“State of California

“County of Los Angeles ss

“On this 28th day of February, 1927, before me Elliott H. Barrett, a Notary Public in and for the said county and state, duly commissioned and sworn and residing therein; personally appeared Louie S. Dexter, known to me to be the person who subscribed her name to the within instrument and acknowledged to me that she executed the same.

“In witness whereof I have hereunto set my hand and seal.

“[Seal] Elliott H. Barrett

“A notary public in and for the County of Los Angeles, State of California”

The foregoing assignment will be hereafter referred to as “Document B.” It was prepared by defendant and the signatures of Louie S. Dexter and Elliott H. Barrett, the purported notary public acknowledging the instrument, were affixed to it by defendant.

After the “consolidated cases” were submitted a motion to reopen was made and defendant in the instant case after being duly sworn testified that:

(1) “Document A,” supra, was exactly in the same form and wording as when she had received it from Mr. Dexter.

(2) She had obtained “Document B,” supra, from the corporate record books of the Golden State Holding Company. (This, in fact, was not true.)

Defendant relies for reversal of the judgments on these propositions:

First. Her demurrer to counts VI and VII which charged her with the forgery of “Document B” and “Document A,” supra, should have been sustained, since the documents described in these counts were not such as could be made the subject of forgery within the meaning of section 470 of the California Penal Code.

Second. The evidence is insufficient to sustain the judgments.

Third. “Document A” as altered and “Document B” were not material to any issue in the “consolidated cases.”

Fourth. The trial court committed prejudicial error in sustaining an objection to the introduction in evidence by defendant of an exemplar, which was a picture of papers pasted on other papers, to illustrate the appearance of papers so placed when photographed.

Fifth. The trial court committed prejudicial error in overruling her objection to (a) questions asked her character witnesses upon cross–examination and (b) the admission in evidence of the judgment rendered in the “consolidated cases.”

Sixth. The trial court committed prejudicial error in (a) instructing the jury, (b) giving as modified instructions to the jury, and (c) refusing to instruct the jury as requested by defendant.

Seventh. It was misconduct of the district attorney to release to the public press during the trial of the instant case information that the files in the courtroom where defendant was being tried had been rifled, and (b) it was prejudicial error for the trial judge to refuse to instruct the jury that the news articles appearing in the public print relative to the ransacking of his courtroom had no reference to defendant or her case then pending before the court.

Defendant's first proposition is without merit. It is the established law in California that one who with intent to defraud either (1) falsely makes or (2) alters an assignment of real or personal property is guilty of forgery. Section 470, Pen.Code.

Count VI of the indictment charged defendant with having forged “Document B,” supra. This document prepared by defendant was clearly an assignment of the notes and mortgages which were the subject of dispute in the “consolidated cases” and obviously under the rule of law above stated is such a document as when falsely prepared with intent to defraud constitutes the crime of forgery.

In count VII defendant was charged with having altered “Document A,” supra. If the words added to this document are deleted, it does not convey the maker's interest in and to the notes and mortgages, the title to which was an issue in the “consolidated cases.” Therefore, it is clear that the additions to this document were such as to constitute the crime of forgery when falsely made with intent to defraud.

For the foregoing reasons the court properly overruled defendant's demurrers to counts VI and VII of the indictment.

Defendant's second contention is untenable. We have examined the record and are of the opinion there was substantial evidence considered in connection with such inferences as the jury may have reasonably drawn therefrom to sustain the facts set forth above, upon which the jury necessarily predicated its verdicts of guilty of the crimes charged in the various counts of the indictment. We therefore refrain from further discussion of the evidence. Thatch v. Livingston, 13 Cal.App.(2d) 202, 56 P.(2d) 549; People v. Groves, 9 Cal. App.(2d) 317, 321, 49 P.(2d) 888, 50 P. (2d) 813; Leavens v. Pinkham & McKevitt, 164 Cal. 242, 245, 128 P. 399.

Defendant's third contention is likewise untenable. One of the principle issues in the “consolidated cases” was whether or not W. P. Nichols, the plaintiff in said cases, had acquired title to the notes and mortgages covered by “Document B” and the alterations to “Document A.” Clearly had these documents been genuine in their entirety, W. P. Nichols would have been the owner of such notes and mortgages, since “Document B” transferred them to the Golden State Holding Company and “Document A” taken together with the quitclaim deeds mentioned therein conveyed them to Catherine McKenna, who in turn had transferred her interest to W. P. Nichols. The record discloses that defendant in the case now before us in fact attempted to use the documents for this purpose during the trial of the “consolidated cases.”

Defendant's further contention that there was no title either legal or equitable in the parties alleged to have been defrauded is wholly devoid of merit, in view of the holding of our Supreme Court in Dexter v. Pierson, 214 Cal. 247, 4 P.(2d) 932, and Busing v. Pierson, 1 Cal.(2d) 495, 36 P.(2d) 116, which cases established that Louie S. Dexter during her lifetime and subsequent to her death, H. D. Busing, the administrator of her estate were entitled to foreclose the mortgages as against Catherine McKenna.

The fourth proposition urged by defendant is also untenable. The exemplar offered in evidence by defendant and to which an objection was sustained was presented for the purpose of showing what would appear on a picture taken of one piece of paper pasted on another, the People having offered in evidence an exhibit of such nature.

The law is settled that an experiment (which the exemplar in the present case was) to be admissible in evidence must have been made under substantially the same conditions as existed at the time of the transaction which the experiment is attempting to prove or disprove. People v. Halbert, 78 Cal.App. 598, 607, 248 P. 969; Nichols, Applied Evidence, vol. II, 2049, § 3 (1928). In the present case the undisputed testimony established that the paper used as the basis of defendant's offered exemplar was not the same as the paper in the picture introduced in evidence by the People. Therefore, the trial court's ruling was correct.

Turning to the contention urged in paragraph (a) of defendant's fifth proposition, the record discloses that defendant called a number of character witnesses who testified that defendant's reputation for truth, honesty, and integrity in the community in which she resided was good. The following excerpts of cross–examination are typical of the cross–examination of each of defendant's character witnesses and defendant's objections thereto:

“Q. If you were told that Mrs. McKenna had agreed to continue in a case with an opposing counsel, and instead of living up to that agreement had gone in and taken a default judgment, would that change your opinion as to Mrs. McKenna's truth, honesty and integrity?

“Mr. Ostrom: Object to it, if your Honor please, as not being proper cross examination and assuming facts not in evidence.

“The Court: Overruled. Answer the question.” * * *

“Q. If you believed it, if it was told you by a lawyer whom you had confidence in, would that change your opinion as to the reputation of Mrs. McKenna for truth, honesty and integrity? A. Well, well, if I believed that Mrs. McKenna did that, actually did that, and without a reason for it, that it was dishonest conduct, you would think it would be dishonest, but that would not necessarily change your opinion regarding her reputation in the community.

“Q. For truth, honesty and integrity, that is the one representation made, that is what you testified to on direct examination, and that is the only one I am questioning you on now, is for truth, honesty and integrity; would that change your opinion as to her reputation for truth, honesty and integrity? A. It would modify it.

“Q. It would modify it? A. If I believed it.

“Q. And suppose you heard that a great number of times, as many as ten times?

“Mr. Ostrom: Object, if your Honor please as not––as assuming a fact not in evidence.

“The Court: It is a question of her general reputation in the community in which she lives or works for truth, honesty and integrity. The objection is overruled. * * *

“Q. Now, then, supposing you were told this by an attorney that you believed; that in an action to quiet title in which Mrs. McKenna represented one party, she maintained in that action, while on the witness stand, under oath, that she owned the property under tax conveyance, and that when it was proved that there was a defect in all the tax title deeds, she then maintained while on the witness stand, under oath, that she had acquired title to the property by adverse possession, and then evidence was produced which showed that the property was owned by a man in Australia, and he had sent his taxes to the Tax Collector and had a certificate of redemption for them, would you then say that her reputation for truth, honesty and integrity was good?

“Mr. Ostrom: Objected to, if your Honor please, as certainly assuming facts not in evidence, no testimony here about anybody in Australia that I ever heard of.

“The Court: The objection will be overruled.”

It is the established law in this state that it is legitimate cross–examination of a character witness to ask whether he has ever heard of the person whose reputation is under investigation having been accused of committing acts inconsistent with the character which he has attributed to him. People v. Weber, 149 Cal. 325, 342, 86 P. 671; People v. Rice, 90 Cal.App. 590, 592, 266 P. 295; Nichols Applied Evidence, vol. I, 1028, § 140 (1928). Applying this rule of law to the instant case, it is evident that the trial court's rulings on the objections to the cross–examination of defendant's character witnesses were correct.

The error alleged in paragraph (b) of defendant's fifth proposition will not be considered by us for the reason that the evidence was received without objection upon the part of defendant. It is the law that an objection to the introduction of evidence cannot be urged for the first time on appeal. 10 Cal.Jur. 824, § 111 (1923).

The sixth contention of defendant is entirely without merit. An examination of the record fails to reveal any prejudicial error committed by the trial court either in (a) instructing the jury, (b) giving instructions as modified, or (c) refusing to give instructions requested by defendant. The jury was fully, fairly and accurately instructed as to the principles of law necessary for it to consider in deciding this case.

The final proposition urged by defendant has no merit. During the course of the trial in the superior court the following articles appeared in the public press:

“Courtroom, Fitts' Office Burglarized.

“Files of Evidence Ransacked in Judge Dudley Valentine's Chambers; None Missing. Daring burglaries of a courtroom and three offices, including the private sanctum of District Attorney Fitts, were reported yesterday, after several days of secret inquiry had failed.

“Superior Judge Dudley Valentine revealed that twice last week someone invaded his courtroom and chambers and ransacked files of evidence.

“Office Invaded.

“Likewise the office of Judge Valentine's stenographic reporter, H. F. Sonneman, was invaded and searched and a similar burglary occurred in the office of Deputy District Attorney James Fredericks, who is assigned to Judge Valentine's department. No records were missing but Judge Valentine and Fredericks declared they were positive some person facing trial in the jurist's courtroom had sought to locate and destroy incriminating documents or other evidence.

“Check Made.

“Activities of all persons awaiting trial are being checked. Fitts disclosed that minor personal belongings were stolen from his desk.”

“Puzzled police seek courtroom burglar.

“Los Angeles most daring burglar was sought today by puzzled authorities. Activities to date of the wanted party, who apparently just doesn't care where he operates, includes: two invasions of Superior Judge Dudley S. Valentine's courtroom and chambers, where files of evidence were ransacked. A similar invasion of the office of H. F. Sonneman, Judge Valentine's stenographic reporter, another in the office of Deputy District Attorney James Fredericks, who is assigned to Judge Valentine's office, another in the office of District Attorney Buron Fitts, where minor personal items were stolen from his desk.

“No records were missing, but Judge Valentine and Fredericks were convinced that someone facing trial in the jurist's court room had sought to locate and destroy incriminating documents.

“Activities of all persons awaiting trial are being checked.”

The record is devoid of any evidence that either of the foregoing articles were brought to the attention of the jury or any individual member thereof. Therefore, it is clear that defendant has failed to direct this court's attention to any prejudicial error resulting to her from the publication of the articles.

After a careful examination of the record we are satisfied that defendant had a full and fair trial before the superior court and that no prejudicial error was committed.

For the foregoing reasons the judgments and orders are, and each is, affirmed.

I concur as to counts I, II, III, IV, V, and VI. I dissent as to count VII. In my opinion section 470 of the Penal Code, which designates the matters which may be the subject of forgery, does not include the letter called “Document A.”

McCOMB, Justice.

I concur: CRAIL, P. J.