Opinion
Cr. 2979
8-23-1954
PEOPLE v. SYKES.
Sol A. Abrams and George E. Hammer, San Francisco, for appellant. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., for respondent.
PEOPLE
v.
SYKES.
Aug. 23, 1954.
Hearing Granted Sept. 21, 1954.
Sol A. Abrams and George E. Hammer, San Francisco, for appellant.
Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., for respondent.
PETERS, Presiding Justice.
Appellant Jack Sykes, and one Rudy Mercado, were jointly charged with unlawfully furnishing marihuana to 17-year-old Beverly Detrick on April 8, 1953, 1 in violation of section 11714 of the Health and Safety Code. Mercado pleaded guilty to the charged offense, and Sykes pleaded not guilty. The jury found Sykes guilty. From the judgment entered on that verdict Sykes appeals.
The evidence, although conflicting, is sufficient to support the judgment. Appellant, at all times here pertinent, was a taxicab driver in San Francisco. He admittedly became acquainted with Mercado about the third week of March, 1953. Mercado and Beverly, who was then 17 years of age, were then and at all times here relevant, living together. After meeting Beverly, appellant thereafter saw her on numerous occasions. Beverly testified that on the night of April 1, 1953, appellant took her and three other young girls, all minors, in his cab from the hotel where she was living with Mercado to a cafe in San Francisco. Appellant then left the girls. At the cafe the four girls met Mercado and another man. The six seated themselves in a booth in that cafe, the two men being seated on chairs at the aisle end of the table, and the girls on benches on each side of the table. Some time later that evening, according to Beverly, Sykes returned to the cafe, and joined the party, standing up behind the two men. Admittedly, he knew all of the people seated at the table. When he arrived at the booth, without saying a word, he took a cigarette out of his pocket. Beverly identified this cigarette as a marihuana cigarette, describing it in detail. She was familiar with marihuana, admittedly having smoked it before this date on 28 or 29 occasions. Her description of the cigarette was similar to the description of the appearance of marihuana cigarettes as given by an expert, the supervising inspector for the Bureau of Narcotic Enforcement. Beverly testified that Sykes, still without speaking or being spoken to, handed the unlit cigarette to Mercado, who lit it, took several puffs, and handed it to Beverly; that she took 'three or four drags off of it' and handed it back to Mercado; that Mercado handed it to Sykes, who returned it to Mercado after taking several puffs. The cigarette was then passed around the table to the others present, each person taking several 'drags' and then passing it on. It finally arrived back to appellant who 'finished it.' During this process both Mercado and Sykes told the girls to keep the cigarette 'down so no one could see it.' Beverly described the effect the cigarette had upon her, and the expert testified that such were the usual effects of smoking marihuana. The expert also testified that marihuana smokers customarily pass a cigarette around a group so that all can get the effect, and because an entire cigarette would be too much for one person to smoke, especially a beginner.
Beverly also testified that on the night of either April 2 or 3, 1953, appellant again furnished her with a marihuana cigarette. On this occasion she was riding with Sykes in his cab and with another man, identified as Jesus Gonzalez, when Sykes lit up a marihuana cigarette and gave it to her for several 'drags.' This was the only other occasion on which Sykes ever supplied her with a narcotic. On neither occasion did Beverly pay for the cigarette nor did she ask for it.
Appellant admitted knowing Beverly and Mercado, and the other persons named, admitted frequenting the cafe in question, admitted seeing Beverly there, but denied giving Beverly a marihuana cigarette on either of the occasions testified to by her, or at any other time.
Mercado testified that he knew Beverly and appellant, frequently was at the cafe in question with Beverly, and frequently saw appellant there, but that appellant had not on April 1st, or at any other time handed him a marihuana cigarette which he, in turn, handed to Beverly. On the ground of surprise and damage the prosecutor was permitted to impeach this witness by evidence that Mercado had previously told a police officer and the prosecutor that Beverly's story of the events of April 1st was correct. Mercado admitted making these prior statements but claimed that he was then lying. It was also brought out that, although Mercado denied that he ever furnished narcotics to Beverly, he had pleaded guilty to that very charge contained in the very same indictment charging appellant with that offense.
Jesus Gonzalez testified that he did not know either appellant or Beverly in April of 1953, and so, of course, could not have been present in appellant's cab on April 2nd or 3rd when appellant, according to Beverly, gave her a marihuana cigarette.
This evidence supports the finding that appellant unlawfully furnished a narcotic to a minor in violation of section 11714 of the Health and Safety Code. Contrary to the contention of appellant it is not indispensable in proving the corpus delicti of the charged offense to produce the specific narcotic used in the offense. Where, as here, the prosecuting witness testifies that she has had prior experience with the narcotic furnished, such fact may be proved by her opinion evidence that the substance furnished was the narcotic in question. The prosecuting witness, as here, may describe the substance furnished and the effects the use of the substance had upon her. A qualified expert, as here, can then testify as to the appearance of the narcotic in question and of its effects on users. It is then for the jury to decide whether the substance testified to was or was not a narcotic. People v. Candalaria, 121 Cal.App.2d 686, 264 P.2d 71; People v. Tipton, 124 Cal.App.2d 213, 268 P.2d 196.
The contention that, since the evidence shows that Mercado and not appellant handed the cigarette to Beverly, the evidence fails to show that appellant furnished the marihuana to the minor is palpably unsound. Physical tradition is not required. It is a reasonable, in fact almost inevitable, inference, under the circumstances shown by the evidence, that when appellant handed the cigarette to Mercado he knew and intended that it should be passed around among those at the table, including Beverly. This inference was strengthened by the evidence of the expert that such was customary among marihuana smokers. This is all that is required. The jury having drawn that inference, and the inference being a reasonable one, this court has no legal power to interfere with the finding of the jury.
The remaining question is whether appellant received the fair trial guaranteed to him by the Constitution and laws of this state. It will be remembered that appellant was on trial charged with but one offense, a specific offense, the furnishing of a narcotic to the minor Beverly. The record shows that continuously during the trial the prosecutor, over objection, successfully produced evidence that appellant had been guilty of crimes and acts of misconduct other than the one charged. This evidence had no reasonable connection with the offense set forth in the indictment, and its production was highly prejudicial to appellant. Its only purpose, and certainly its effect, was to demonstrate to the jury that appellant was a very bad man indeed, and that such a man was likely to have committed the crime charged. That is precisely what the prosecutor argued to the jury. Such evidence is not admissible.
That most of the challenged evidence had no legal relevancy to the crime charged can be demonstrated by a brief reference to the record. Beverly was produced as the first witness by the prosecution. Before she was asked any questions at all about the events of April 1, 1953, she was asked if she had had a conversation with appellant in the third week of March, 1953. After stating that she had had such a conversation, and fixing the place and stating that three other girls, all minors, were present, she was permitted to testify, over repeated objections, that such conversation dealt with the subject of prostitution. Then she was permitted to testify as to the details of that conversation. She testified that appellant first brought up the subject of prostitution and told the girls, in detail, the amount of money that could be made from that activity. She was also permitted to testify that appellant told the girls, in detail how to inspect the privates of customers to ascertain if they were diseased.
Later, still during her direct examination, and over objection, Beverly was permitted to testify that on 11 or 12 occasions she did some work for appellant; that such work consisted of 'prostituting'; that on such occasions she gave half of the proceeds received by her for such activity to appellant as payment for his furnishing the customers; that on such occasions appellant brought her to various hotels with various men and had her register under false names.
During the examination of the prosecution's witness Mercado, other evidence was erroneously admitted. The court properly permitted the impeachment of this witness, on the ground of damage and surprise, and properly permitted the prosecution to show that the witness had, on prior occasions, made statements inconsistent with his present testimony. People v. Flores, 37 Cal.App.2d 282, 99 P.2d 326; People v. LeBeau, 39 Cal.2d 146, 245 P.2d 302; People v. Spinosa, 115 Cal.App.2d 629, 252 P.2d 409. This impeachment evidence properly included evidence that this witness had pleaded guilty to the charge of furnishing narcotics to Beverly, the witness having denied having done so. People v. McConahay, 90 Cal.App.2d 596, 203 P.2d 791. But then the prosecutor, over objection, was permitted to ask the witness if at some undefined time in the past 'Didn't you steal some heroin from Jack Sykes and he offered a reward for you?' He replied: 'I don't know about the reward but I did steal heroin from him.'
Appellant also objects to the evidence of Beverly that on April 2 or 3, 1953, appellant had furnished her marihuana. This was within a day or so of the charged offense, involved the same drug as the charged offense, and the procedure involved circumstances similar to those of the charged offense. Under such circumstances, that evidence was admissible. A proper relationship between the two offenses was shown inasmuch as the evidence tended to show a common plan or scheme. People v. Torres, 98 Cal.App.2d 189, 219 P.2d 480; People v. Peete, 28 Cal.2d 306, 169 P.2d 924.
When most of this evidence was introduced, the trial judge, in overruling the objections, frequently stated that such evidence would be subsequently stricken 'if not connected up.' When such motions to strike were subsequently made they were denied.
It should also be mentioned that almost the entire opening and closing arguments of the prosecutor were devoted to the claim that the evidence showed that appellant was a pimp and narcotic peddler; that there was a close connection between pimps, narcotics and prostitution; that appellant was a bad underworld character and a big operator; and that appellant was a pimp who had put Beverly into prostitution. Very little was said in the arguments as to the actual offense charged.
The evidence above summarized was inadmissible, and its admission was highly inflammatory and prejudicial. It could have been introduced only to discredit appellant and to prove his general criminal attitude. The general rule is that evidence of other crimes or offenses is not admissible. To that rule there are several exceptions. These exceptions are based on the common sense premise that where evidence of other crimes is directly relevant in proving some element of the crime charged, or in disproving some defense, the evidence, although inflammatory, is admissible. Thus if the evidence tends to show motive, knowledge, or intent as to the crime charged, the absence of mistake or accident, a common pattern, plan, scheme or design, or the identity of the party charged, it is admissible. These limitations on the general rule, originally quite limited, have undoubtedly been broadly extended in recent years. See majority opinion in People v. Burns, 109 Cal.App.2d 524, 241 P.2d 308, 242 P.2d 9; People v. Peete, 28 Cal.2d 306, 169 P.2d 924; People v. Westek, 31 Cal.2d 469, 190 P.2d 9; People v. Dabb, 32 Cal.2d 491, 197 P.2d 1; People v. Zatzke, 33 Cal.2d 480, 202 P.2d 1009; People v. Rickson, 112 Cal.App.2d 475, 246 P.2d 700. But these cases, and many others that could be cited, all recognize that the general rule still exists, and that unless the evidence falls within one of the exceptions, it is inadmissible. See also People v. Albertson, 23 Cal.2d 550, 145 P.2d 7.
The reasons for the exclusion of such evidence, where it does not fall within one of the exceptions, are obvious and need not be set forth at length. The defendant in a criminal case has been charged with a specific offense. He is not being tried because he is generally a man of bad character. He is required to meet the charge contained in the indictment or information and no other. He is not called upon to meet the charge that sometime in the past he committed, or may have committed, some other offense or offenses. Even a very bad man is entitled to a fair trial. Even though he may be a most reprehensible character he may be innocent of the crime charged. If so, he should be acquitted, regardless of his other derelictions. He should not be convicted on general principles or upon mere suspicion. Even though evidence of prior offenses may have some probative value to show the probability that the defendant, because of his past activities, may have committed the offense charged, such evidence, unless it falls within one of the exceptions, is excluded because its probative effect, if any, is more than outweighed by its prejudicial nature. See People v. Albertson, 23 Cal.2d 550, 145 P.2d 7; People v. Westek, 31 Cal.2d 469, 190 P.2d 9; People v. Litle, 85 Cal.App. 402, 259 P. 458.
Here, the offense charged was the unlawful furnishing of a marihuana cigarette to Beverly. Defendant was called upon to not only meet that charge, but also charges that he was a pimp, that he induced young girls to go into prostitution, and that in the past he had been frequently in the possession of narcotics other than marihuana. If the prosecution believed that appellant is guilty of those various offenses he should be charged with them, and given the opportunity to defend against them.
The respondent urges that such evidence falls within an exception to the rule and was admissible. It is contended that Beverly's prostitution was part of appellant's scheme to subject Beverly completely to his 'vile ends.' It is also claimed that the evidence tended to show motive, that is, greater profit to him if he could succeed in making her an addict. These arguments are made although the evidence shows that appellant at most, on two occasions, offered Beverly several 'drags' on a marihuana cigarette, and that the expert produced by the state testified that the use of marihuana was no more habit-forming than the use of tea, coffee, or cigarettes. The tenuous theory suggested by the prosecution cannot support the admission of such highly inflammatory evidence. Even if it had some slight probative effect, such was not sufficient to warrant compelling appellant to meet the claim that he may have committed these unrelated, unconnected and uncharged offenses. The admission of such evidence deprived appellant of a fair trial. That such error was prejudicial is too clear to require comment.
The judgment appealed from is reversed and the cause remanded for a new trial.
BRAY and FRED B. WOOD, JJ., concur. --------------- 1 The record shows, and the respondent admits, that the charged offense occurred on April 1, 1953, and that the date of April 8th contained in the indictment was erroneous.