PEOPLE v. TRIEBER (1945)

This is an appeal by the People from an order of the superior court granting a motion to set aside and dismiss an indictment charging a violation of Penal Code section 640 which provided in part: ‘Every person who, by means of any machine, instrument, or contrivance, or in any other manner, willfully and fraudulently, or clandestinely taps, or makes any unauthorized connection with any telegraph or telephone wire, line, cable, or instrument under the control of any telegraph or telephone company * * * is punishable as provided in section 639.’

From the testimony before the grand jury which returned the indictment, it appears that Morris Trieber, without the knowledge or consent of the Pacific Telephone and Telegraph Company's officers or managers, but through the assistance of an employee, secured at least seven extensions to telephones which led to an apartment on Ashbury Street and several extensions to an apartment on Haight Street. These extensions were put upon the telephones listed to residents of other apartments in the houses, with the consent of the subscribers, at the direction of the defendant, who paid the phone bills of all the subscribers in exchange for the use of the extensions for his business. The actual work was performed by an employee of the telephone company.

The indictment in the present case charged two violations of the above section at different addresses in the City and County of San Francisco in that there was tapped, and an ‘unauthorized’ connection made with, telephone wires and instruments, and that the wires and instruments were under the ‘control’ of the Pacific Telephone and Telegraph Company, a corporation engaged in the business of operating a telephone business.

In People v. Earl, 19 Cal.App. 69, 124 P. 887, the court was called upon to construe Penal Code section 619, involving the disclosure of the contents of telegraphic or telephonic messages, as it applied to a publication of the former. At pages 71–72 of 19 Cal.App., at page 888 of 124 P., the court said: ‘The function of the courts in construing statutes is not restricted to a view which shall give literal effect to every word and phrase appearing by the letter of the law. In that analysis reason must have its just proportion, and the intent of the law makers is to be ascertained by taking into account several considerations, as the history of the legislation upon the subject treated, and concurrent legislation affecting the same or closely kindred subjects. The fact that the enforcement of a statute according to its literal import will have the effect of prohibiting otherwise necessary and useful acts may also furnish an entirely sufficient reason for concluding that the intent of its framers was not that it should so operate.’

The words ‘makes any unauthorized connection’ refer to making a ‘connection’ without authority of the subscriber. Reference to certain sections of the code indicate that a ‘tap or connection’ could not be made even by the telephone company without the consent of the subscriber.

That section 640 was not intended to protect the telephone company is demonstrated when within the chapter of the Penal Code dealing with malicious injuries to railroad bridges, highways and ries to railroad bridges, highways and ‘Injuring or Tapping Phone or Telegraph Line.—Every person who unlawfully and maliciously takes down, removes, injures or obstructs or makes any unauthorized connection with any line or telegraph or telephone, or any other line used to conduct electricity, or any part thereof, or appurtenances or apparatus connected therewith, or severs any wire thereof, is punishable * * *.’ Penal Code, sec. 591. This section is for the protection of the owners of telephone equipment, whether for public or private use. Davis v. Pacific Telephone and Telegraph Co., 127 Cal. 312, 59 P. 698. One charged with injuring telephone lines is charged under section 591. People v. Holmes, 130 Cal.App. 507, 20 P.2d 67. Tapping wires to aid in a system of ‘spying,’ including tapping telephone connections, ‘is an offense under section 640 of the Penal Code.’ People v. Kynette, 15 Cal.2d 731, 745, 104 P.2d 794, 802.

The acts denounced as crimes in section 640 are included in Penal Code, Pt. 1, Ti. 15, Chap. 2, wherein other offenses are set forth, such as refusal or neglect or delay in sending or delivering a telegram or telephone message, use or disclosure of contents of a telegram or telephone message, inducing disclosure of a telephone message or telegram by bribery, installing a dictagraph without consent of an owner or occupant in any house, etc. The penal provisions in these sections show that the purpose is the protection of the sender or recipient of the contents of a message by telephone or telegraph. Wire tapping, except when legally authorized, is an invasion of the right of privacy. The requirement of control in section 640 is left out of other sections of the chapter and is eliminated even in the balance of section 640 which forbids reading a message while in transit or communicating in any way the information so obtained. The primary purpose of section 640 is the protection of the subscriber's wires from being tapped by third parties. If the secrecy in transmission of a telephone message is violated by one who has a duty to perform in its transmission a prosecution may be instituted under Penal Code, section 619. People v. Earl, supra. If one not connected with a telephone company opens a sealed envelope containing a transcribed telephone message the prosecution should be under section 621, but tapping wires without the consent of the subscriber is a violation of section 640. If the consent of the subscriber is obtained there is no violation of section 640 but there may be a violation of section 591.

If the word ‘unauthorized’ in section 640 refers to the authorization of the telephone company, then the subscribers here would be equally guilty with Trieber of the offenses charged, and that result would ensue under a statute passed primarily for the benefit of such subscribers. Lake of consent by the subscriber is an essential element in all of the offenses set forth in section 640. Conversely, consent by the subscriber negatives an essential element which fact may be presented as a valid defense to a prosecution under the provisions of that section. The evidence taken before the grand jury shows the consent of the subscriber to the acts set forth in the two counts of the indictment.

If a subscriber makes an unauthorized tap or connection without the consent of the telephone company, when consent may be required, such company has a remedy in tort or under the provisions of Penal Code, section 591, depending upon the circumstances of the case.

The purpose of amending section 640 in 1915 (Stats. 1915, Chap. 117, p. 210) by inserting the words ‘under the control of any telegraph or telephone company’ appears to be to distinguish the tapping of wire operated and controlled by a company engaged in serving the public as distinguished from a telephone system controlled by a private individual or company and operated for the benefit of a particular business, such as an inter-communicating telephone system in a hotel or other business. Evidently the legislature determined that the punishment should be greater when wires of a business conducted in the interest of the public were tapped than when the same act was performed in connection with a private business concern. This is manifest in the punishment provided for a violation of sections 640 and 591. (Cf. sections 639, 591.) This control, as distinguished from the authorization by the subscriber as above noted, is an essential statement in the crime under section 640 that must be proved. The absence of any evidence on the issue of control of the wires presents an additional reason why the ruling of the trial court must be upheld.

The general rules governing the sufficiency of an indictment and the proof necessary therefor have undergone a change in the last few years. ‘The grand jury ought to find an indictment when all the evidence before them, taken together, if unexplained or uncontradicted, would, in their judgment, warrant a conviction by a trial jury.’ Penal Code, sec. 921. ‘A grand jury's function is to return an indictment against a person only when the evidence presented to it indicates that he has committed a public offense.’ Greenberg v. Superior Court, 19 Cal.2d 319, 321, 121 P.2d 713, 715. A public offense is an act committed or omitted in violation of a law forbidding or commanding at, and upon conviction of which there is a punishment provided. Penal Code, sec. 15. An indictment need not contain allegations of matters not essential to be proved, but it must contain a statement of the acts constituting the crime in ordinary and concise language. Penal Code, secs. 950, 952. So far as the pleading is concerned, matters of which judicial notice is taken need not be stated, Penal Code, sec. 961, if the other allegations definitely apprise the defendant of the offense of which he is accused, Penal Code, sec. 952.

An indictment has been said to be ‘something more than a mere accusation based upon probable cause; it is an accusation based upon legal testimony’ (People v. Tinder, 19 Cal. 539, 543, 81 Am.Dec. 77) sufficient to determine if criminal proceedings shall be commenced. In re Lemon, 15 Cal.App.2d 82, 59 P.2d 213. At common law an indictment was unimpeachable and even courts were not permitted to invade the sanctity of secrecy with which the grand jury was clothed. Penal Code, section 995 sets forth, as it has since 1872, the grounds upon which an indictment may be set aside. The grounds have changed since the original adoption of the section. In 1939 the only ground noted upon which an indictent must be set aside is: ‘Where it is not found, indorsed, and presented as prescribed in this code.’ In 1907 in Brobeck v. Superior Court, 152 Cal. 289, 92 P. 646, it was held that it was immaterial that there was no evidence introduced before the grand jury, showing the petitioner for a writ of prohibition, guilty of the public offense charged. In 1932 in Morehouse v. Superior Court, 124 Cal.App. 38, 39, 12 P.2d 133, it was said: ‘The fact that the grand jury may have received incompetent evidence upon which it found an indictment, or have based the same either wholly or in part upon incompetent evidence, does not constitute one of the grounds enumerated in section 995 of the Penal Code upon which an indictment may be set aside.’ In People v. Panagoit, 25 Cal.App. 158, 143 P. 70, it was contended that testimony taken before a grand jury was insufficient to support the indictment on a jurisdictional question. Defendant demurred and subsequently raised the point on motion in arrest of judgment. On appeal, the court said (25 Cal.App. at page 162, 143 P. at page 72): ‘This contention cannot be maintained. There is no provision in our law for thus reviewing the action of a grand jury in finding an indictment. The validity of an indictment cannot be attacked upon the mere ground of insufficiency of evidence to support it. Courts cannot, in the absence of a statute permitting it, inquire into the sufficiency of the evidence upon which the grand jury acted, in order to invalidate an indictment returned by them.’ See, also, 59 A.L.R. 579, annotation IV; People v. Tinder, supra; Brobeck v. Superior Court, supra; In re Kennedy, 144 Cal. 634, 78 P. 34, 67 L.R.A. 406, 103 Am.St.Rep. 117, 1 Ann.Cas. 840; People v. Fealy, 33 Cal.App. 605, 165 P. 1034; People v. Hatch, 13 Cal.App. 521, 109 P. 1097; People v. Beach, 122 Cal. 37, 54 P. 369; People v. Schmidt, 33 Cal.App. 426, 165 P. 555. However, it was said in Greenberg v. Superior Court, 19 Cal.2d 319, 323, 121 P.2d 713, 716, referring to the Tinder, Kennedy and Brobeck cases: ‘At the time each case was decided, section 925 of the Penal Code merely permitted the district attorney at his discretion to have testimony before the grand jury reported but did not make such reporting mandatory. The cases therefore do not control the present situation and the views expressed therein inconsistent with this opinion are disapproved.’ The court further said, 19 Cal.2d at page 322, 121 P.2d at page 715: ‘If there is some evidence to support the indictment the courts will not inquire into its sufficiency (see cases collected in 59 A.L.R. 573), but the lack of any evidence conclusively establishes that the grand jury has exceeded its authority in returning an indictment.’ ‘A grand jury that indicts a person when no evidence has been presented to connect him with the commission of the crime charged, exceeds the authority conferred upon it by the Constitution and laws of the State of California and encroaches upon the right of a person to be free from prosecution for crime unless there is some rational ground for assuming the possibility that he is guilty.’

It must be stated that the reporter's transcript of the grand jury in the present proceedings shows the lack of any evidence that the instrument or telephone wires were under the control of the Pacific Telephone and Telegraph Company, as alleged in the indictment. There is evidence that the installations were made by an employee of the telephone company and that the tapping was without the knowledge or consent of an investigator on this case, but no evidence that such investigator's consent or refusal would have been of any avail. There is also evidence that the employee of the telephone company who performed the physical work and was paid by the defendant did not inform the company of the work performed on the instruments. This evidence does not lend itself to any inference of control by the telephone company.

The reference in the Greenberg case, supra, to ‘some evidence’ presupposes that the evidence must be ‘rational.’ Its credibility may not be weighed on a motion to dismiss upon the ground that there is a ‘lack of any evidence’ to uphold the charge, but there must be presented relevant evidence of some kind from a competent source. This rule is founded in reason and good sense (People v. Arnold, 15 Cal. 476, 481) and does not do violence to the right to draw an inference from a proven fact. People v. Latona, 2 Cal.2d 714, 43 P.2d 260. If a fact established by evidence has a tendency to prove an essential feature of the charge, courts will not determine the weight of the evidence, but if it has no probative value in the sense that it arises from a surmise which reason repels as unauthorized, then there is a ‘lack of any evidence.’ Greenberg v. Superior Court, supra.

It is urged in support of appellant's contention that the evidence shows control by the company: (1) that the defendant was operating an illegal business; (2) that defendant paid the company for the use of the telephones though he permitted the subscriber also to use the telephone. How an inference may be drawn from the above facts that the telephone company had ‘control’ of the instruments after installation in the private homes of the subscribers is not pointed out by appellant. ‘Control’ is one of the essentials of the offense set forth in section 640. Lack of ‘control’ played a part in the ruling of the trial court as demonstrated in a ‘Memorandum Opinion on Motion to Dismiss' appearing in the clerk's transcript on appeal.

Appellant also contends in lieu of such proof of ‘control’ that ‘this court must take judicial notice of a matter of common knowledge’ that this particular telephone company has exclusive control over telephone service in San Francisco, and that subscribers are not authorized to permit any one to make any connection with any telephone instrument or wire. (Emphasis added.) Further, that this court should take judicial notice that the Pacific Telephone and Telegraph Company is a public utility and that the Railroad Commission has approved certain regulations prepared by the company to the effect that a subscriber is not authorized to change or alter instrumentalities or the equipment of the company. We are not considering the sufficiency of a pleading, Penal Code, sec. 961, but the sufficiency of the evidence. Greenberg v. Superior Court, supra. The issue is not of what this court may take judicial notice, but it is of what the grand jury may take ‘notice’ without proof. A grand jury is primarily an inquisitorial body. The best evidence reasonably obtainable should be presented (Samish v. Superior Court, 28 Cal.App.2d 685, 83 P.2d 305), but some evidence will be held sufficient even should it be obtained unlawfully. Ex parte McDonough, 21 Cal.App.2d 287, 68 P.2d 1020. There is a form or speces of ‘judicial knowledge’ which may be exercised by jurors. They may compare their own experiences in life with the testimony produced in deciding whether a witness has told the truth. 1 Wharton's Criminal Evidence, 11th Ed., p. 39, sec. 25. A jury may take notice of physical facts but not of civil rights that have not been legally determined. Juries under the direction of courts may take notice that an office or a corporation has civil rights and duties but may ‘not take jurisdicial notice of the nature and scope of such civil rights and duties' (Archbishop v. Industrial Acc. Com., 194 Cal. 660, 677, 230 P. 1, 8), until there is a determination of the scope of the right. See Liberty Mut. Ins. Co. v. Superior Court, 62 Cal.App.2d 601, 145 P.2d 344; Mound W. Co. v. Southern Cal. Edison Co., 184 Cal. 602, 194 P. 1014; Wallace Ranch W. Co. v. Foothill D. Co., 5 Cal.2d 103, 53 P.2d 929. In Varcoe v. Lee, 180 Cal. 338, 345, 181 P. 223, 226, the court said: ‘* * * as soon as a circumstance becomes disputable, it ceases to fall under the head of common knowledge, and so will not be judicially recognized.’ The grand jury is judicial only in that it is permitted under some circumstances to determine whether certain evidence is admissible, etc., but it is primarily an inquisitorial and not a judicial body. The courts take judicial notice of matters set forth in section 1875, Code Civ.Proc. The court may declare such knowledge to a jury and the jury is bound to accept it. Code Civ.Proc. sec. 2102. A grand jury is restricted in the reception of evidence. ‘In the investigation of a charge, the grand jury can receive no other evidence than such as is given by witnesses produced and sworn before them, or furnished by legal documentary evidence, or the deposition of a witness, in the cases mentioned in the third subdivision of section six hundred and eighty-six. The grand jury can receive none but legal evidence, and the best evidence in degree, to the exclusion of hearsay or secondary evidence.’ Penal Code, sec. 919. See, also, 13 Cal.Jur. 77; 12 R.C.L., p. 1034, sec. 20; 38 C.J.S., Grand Juries, p. 1058, § 42, subsec. b.

It is urged that if the grand jury may not take judicial notice of matters of common knowledge, the court may take judicial knowledge of the fact that the ‘company’ is a public utility operating in San Francisco under such rules and regulations and schedules of rates as the Railroad Commission may prescribe. Appellant then refers to ‘Rule and Regulation, No. 19.’ That regulation was not offered as evidence or otherwise to the grand jury. Its existence si evidently an afterthought. A copy is attached to appellant's opening brief. It was not offered as an exhibit and so far as the record discloses was not referred to in the trial court upon the motion to dismiss the indictment. In substance, the rule purports to provide that all instrumentalities, equipment, etc., remain the property of the company; that only duly authorized employees of the company shall be allowed to change or alter any of the equipment, etc., and that the subscriber will be held for damages to any apparatus furnished by the company. Although this rule, if offered in evidence before the grand jury, might have supplied the defect in proof heretofore found, it can not be said to supply a defect ex post factum of the hearing before the grand jury. It is not here decided whether this court or the trial court would take judicial notice of this rule, because such decision is unnecessary inasmuch as the sole issue is the sufficiency of the facts before the grand jury. It is here decided that the grand jury sitting as an inquisitorial body of laymen may not ‘judicially’ notice a rule or regulation of an administrative body unless that rule or regulation is offered in evidence before them. ‘A grand jury is a part of the machinery of government, having for its object the detection and punishment of crime; it is an appendage of the court under whose supervision it is impaneled, having no existence aside from the court which calls it into existence, and upon which it is attending. It does not become, after it is summoned, impaneled, and sworn, an independent plant, as it were, in the judicial system, but still remains an appendage of the court on which it is attending. The grand jury is regarded as an informing or accusing body rather than as a judicial tribunal.’ 24 Am.Jur., pp. 832, 833, sec. 2.

The judgment is affirmed.

WARD, Justice.

PETERS, P. J., and SCHOTTKY, J., pro tem., concur.