Opinion
Cr. 2580
1-30-1950
PEOPLE v. ZERILLO.
Harold C. Faulkner, A. J. Zirpoli, Melvin, Faulkner, Sheehan & Wiseman, San Francisco, for appellant. Fred N. Howser, Attorney General, David K. Lener, Deputy Attorney General, for respondent.
PEOPLE
v.
ZERILLO.
Jan. 30, 1950.
Hearing Granted Feb. 27, 1950. *
Harold C. Faulkner, A. J. Zirpoli, Melvin, Faulkner, Sheehan & Wiseman, San Francisco, for appellant.
Fred N. Howser, Attorney General, David K. Lener, Deputy Attorney General, for respondent.
DOOLING, Justice.
Defendant was convicted of the crime of bribery as proscribed by section 67 of the Penal Code. The case was tried on a second amended information which charged in the language of the code the giving and offering to give a bribe in the amount of $5,000 to Milton P. Duffy, an executive officer of the State of California, towit: Chief of the Bureau of Food and Drug Inspections, with the intent to corruptly influence said officer in respect to his act, decision, vote and opinion as such officer.
A motion to set aside the second amended information on the ground that defendant was committed without reasonable or probable cause was denied. This was not error. Before the committing magistrate Milton P. Duffy testified that defendant, who is president of a cannery, in Duffy's office stated to Duffy that he would like to give him a little present. 'Father somebody--I did not get the name * * * is building a church * * *. If you will let me have that tomato paste I can put it in a place where I can sell it.' That the reference was to 1861 cases of canned tomato paste in defendant's cannery which were under quarantine by Duffy's department and that defendant produced a packet wrapped in paper and stated that it was a little present for Duffy and that the packet when opened disclosed paper money which defendant stated amounted to $5,000. While Duffy testified that defendant used the word 'present' in reference to this money the proof was ample to support the second amended information.
On the trial Duffy gave similar testimony as to the occurrence in his office. It developed that defendant was building a church for a Father Duffy and the witness, Milton P. Duffy, testified that when defendant spoke of Father Duffy in connection with the building of this church the witness misunderstood him and believed that he was referring to the witness in using the name Duffy.
Duffy further testified that after the packet of money was produced and opened he became very angry, called an assistant named Wheeler from an adjoining office and accused defendant before Wheeler of offering him a bribe. Both Duffy and Wheeler testified that defendant insisted and reiterated that Duffy had misunderstood defendant, that defendant wanted to give Duffy the money for him to give to charity. Duffy testified that when he went to call Wheeler the packet of money was lying on his desk. When he returned it was not there and no money was produced on the trial.
Over objection the people introduced through one Lo Coco, a chemist employed by defendant's cannery, a large number of written reports of Lo Coco's examination of samples from many batches of canned tomato products showing that they were either 'above tolerance' or 'too high'. Lo Coco testified that 'above tolerance' meant that the worm and insect content or mold content was above that permitted in tomato products to be sold for human consumption, and 'to high' meant that while his examination showed the product within the allowable tolerance it was so close thereto that the products should not be sold without a re-examination. The batches were all referred to by number and the people also introduced over objection several letters of defendant to customers of the cannery referring to some of the batches by number which Lo Coco had reported above tolerance and suggesting that the customers dispose of those batches immediately.
The theory of the prosecution was that the knowledge of defendant that there were so many cases of questionable products in his cannery furnished a motive for the attempt to bribe Duffy to release the 1861 cases under quarantine, with the purpose that once Duffy had accepted a bribe he would be less likely to prohibit the sale of the other questionable products. We are statisfied that the court properly admitted the evidence for this purpose. The rule is thus stated in 8 Cal.Jur., Criminal Law, sec. 172, pp. 68-69: 'Evidence of other offenses may be given to show a motive for the commission of the crime charged, unless the motive of the defendant is obvious and the real purpose of the evidence is to prejudice the defendant in the minds of the jury. Stated another way, whenever the question of motive, or purpose, or reason for an act is involved, testimony showing such motive, reason or purpose is admissible even though it may establish the commission of other offenses.'
The quoted language is documented by a copious citation of cases in the footnotes and later cases are cited in the notes on pp. 641-642 of 4 Cal.Jur. 10 Yr.Supp., 1943 Revision.
A sufficient foundation was laid for the introduction of the Lo Coco reports. As to some of them defendant's own letters to customers above referred to indicated defendant's actual knowledge of the contents of those reports. As to all of them Lo Coco testified that if defendant was present a copy of the report was delivered by Lo Coco to defendant personally, if he was not in his office the copy was either left on defendant's desk or delivered to his secretary, although Lo Coco could not remember as to any particular report that he had personally delivered that particular report to defendant.
The evidence of this course of conduct, particularly when coupled with the written evidence showing defendant's actual knowledge of some of the reports, was sufficient to take to the jury the question whether the reports had actually come to defendant's knowledge. The evidence of knowledge by defendant was largely circumstantial, but sufficient to support an inference. In this respect the case differs from People v. Blackman, 127 Cal. 248, 59 P. 573 and the other cases relied upon by defendant.
Defendant complains of the prosecution's cross-examination of its own witness Lo Coco as to his talking to one of defendant's counsel during the trial. If error at all this was not prejudicial since the substance of the conversation was not developed.
The court properly refused to permit evidence for the defense that subsequent to the date of the alleged bribe many of the batches referred to in the Lo Coco reports had been re-examined and found fit for human consumption. The state of defendant's mind at the date of the alleged bribe, which was sought to be proved by the Lo Coco reports, could not be affected by facts which developed after that time.
Sec. 67, Penal Code, requires a specific intent. The bribe must be given or offered 'with intent to influence (the officer) in respect to any act'. People v. Werner, 29 Cal.App.2d 126, 131, 84 P.2d 168. The defense proposed instructions on specific intent which the court refused to give. The court instead gave the following instruction: 'To constitute criminal intent it is merely necessary that a person intend to do an act, which if committed, will constitute a crime. When a person intentionly does that which the law declares to be a crime, such person is acting with criminal intent even though he may not know that such act is unlawful and even though there be no bad motive.'
This instruction, particularly in the absence of any instruction on the specific intent required as an essential element of the crime, was confusing and misleading. The first sentence tells the jury nothing. Since the specific intent to influence the officer is an element of the crime the effect of the first sentence, if the jury understood it as applied to the offense charged which seems highly doubtful, could only be in this case: 'To constitute criminal intent it is merely necessary that defendant intended to offer money to Duffy with intent to influence him.' In other words if you find that defendant intended to bribe Duffy he intended to bribe Duffy. The jury might more probably have understood the first sentence to mean if you find that the defendant offered money to Duffy he intended to bribe him. The second sentence is worse as applied to the offense charged. By it the jury was told that 'bad motive' was not necessary to criminal intent in a bribery case, although the 'intent to influence' the officer (bad motive) is made a specific element of the crime.
The defendant was entitled to a clear instruction that the intent to influence the officer in his official conduct was an element of the crime which must be proved beyond a reasonable doubt in order to find defendant guilty. People v. Snyder, 15 Cal.2d 706, 104 P.2d 639; People v. Neal, 40 Cal.App.2d 115, 104 P.2d 555; People v. Maciel, 71 Cal.App. 213, 234 P. 877.
That the failure to give such an instruction and the giving of the misleading instruction above quoted was prejudicial in this case sufficiently appears from the fact that immediately following the attempted bribe in the presence of Duffy and Wheeler defendant disclaimed any corrupt intent and that Duffy admitted that he was confused as to the meaning of and misunderstood a part of defendant's conversation with him at the time the alleged bribe was offered. Whether these facts would have led the jury to entertain a reasonable doubt of defendant's corrupt intent if specifically advised that such intent was an element of the crime which must be proved beyond a reasonable doubt we cannot say from a reading of the transcript.
Defendant testified that his intention in going to see Milton P. Duffy was to try to persuade him to release the 1861 cases of quarantined paste so that he could sell it and give all or part of the money for the building of Frather Duffy's church. Father Duffy was produced to prove that on the day in question defendant telephoned to him and asked him to go with defendant to see Milton P. Duffy for that purpose. Objections to this testimony were sustained. Since defendant's specific intent was in issue this evidence should have been admitted. Where the intent with which an act is done is in issue declarations of the person as to his intention when not too remote and made under circumstances justifying the conclusion that the statement was not fabricated are admissible. People v. Silver, 16 Cal.2d 714, 724-725, 108 P.2d 4; People v. Chenault, 74 Cal.App.2d 487, 496-497, 169 P.2d 29; People v. Fong Sing, 38 Cal.App. 253, 175 P. 911.
The proffered evidence satisfies these requirements. An invitation to a priest to accompany defendant to see the officer would hardly be extended as a fabrication since the priest's acceptance of the invitation would under the circumstances defeat the purpose of the visit if that purpose was the offering of a bribe. That after Father Duffy's refusal because of illness defendant might have changed his purpose to the unlawful one alleged goes to the weight of the evidence, but does not affect its admissibility.
Defendant on direct examination limited himself strictly to giving his version of the interview with Duffy and a denial of the offer of a bribe. On cross-examination, over objection, the prosecution examined defendant at length about his knowledge of the Lo Coco reports and the letters written by him to customers. It was error thus to extend the scope of the cross-examination. These matters were admissible on the people's case only to show a possible motive since the testimony of Duffy indicated clearly that if a bribe was offered it was to secure the release of the 1861 quarantined cases only.
Section 1323, Penal Code, limits the right of cross-examination of a defendant in a criminal case to matters about which he was examined in chief. In People v. McCarthy, 8 Cal.App.2d 883, 886-887, 200 P.2d 69, we examined and cited many cases on the right of a defendant in a criminal case to have the cross-examination limited to the matters reasonably germane to the testimony given by the defendant on direct. Those cases stress the constitutional right of the defendant in a criminal case not to be compelled to be a witness against himself. Where a defendant carefully limits his testimony in chief this right should be respected on cross-examination. Into fields which the defendant elects to remain silent about the prosecution may not go on cross-examination unless those matters have a reasonably close relation to the matters testified to in chief or a reasonable tendency to discredit them.
Defendant was also cross-examined as to whether he had not asked a certain priest to see if another ecclesiastic would not intercede with Duffy on his behalf. We think this matter was sufficiently germane to the credibility of defendant's testimony on direct to justify the cross-examination on this subject.
The court was not in error in refusing to give a proposed instruction on circumstantial evidence that in order to find a defendant guilty on circumstantial evidence all such facts and circumstances must be inconsistent with any reasonable theory of innocence. The testimony of Duffy was direct evidence and while the evidence on the subject of motive was circumstantial the case falls within the rule that 'a court is not required to instruct upon the rules of law applicable to circumstantial evidence which is incidental to and corroborative of direct evidence.' People v. Jerman, 29 Cal.2d 189, 197, 173 P.2d 805, 809.
An examination of the record satisfies us that the errors discussed were prejudicial. Other alleged errors and misconduct are not likely to occur on another trial and need not be discussed.
The judgment and order denying a new trial are reversed and defendant remanded for a new trial.
NOURSE, P. J., and GOODELL, J., concur. --------------- * Subsequent opinion 223 P