People v. Laisne

By information defendant was charged with a violation of section 702 of the Welfare and Institutions Code in that he sold intoxicating liquor to a minor, thereby tending to cause the minor to lead an idle, dissolute, lewd and immoral life. The case was submitted on the record of the preliminary hearing supplemented by written argument of counsel. From the judgment of conviction which was thereafter entered, defendant appeals contending (1) that the evidence was insufficient to support the judgment, and (2) that the court erred in excluding certain testimony and exhibits.

The record shows that on the evening of December 24, 1956, James, the minor, attended a party at a friend’s home at which several persons between the ages of 16 and 20 were present. It was decided that some liquor should be obtained, and a collection was taken up for that purpose. James, with two other minors, drove to the Chateau Laisne, a bar and restaurant near Mariposa, which was owned and operated by the defendant. James purchased a fifth of vodka,

It is defendant’s first contention that since the final decision in the ease was made by a judge who did not see or hear the witnesses but had only the written record before him, this court should therefore reweigh the evidence on appeal.

Here it should be noted that defendant was not compelled to submit the case for determination upon the evidence produced at the preliminary examination. Had he desired the judge to see the witnesses personally and hear the testimony he had every right to a court trial. To allow him now to attack the conclusion of the court on the very basis upon which he allowed it to be submitted would be to go far afield from the established rules of appellate practice. The rule so frequently quoted from People v. Newland, 15 Cal.2d 678 [ 104 P.2d 778 ], is equally as applicable to this proceeding as it would be to one after a conventional hearing before a court or jury. In other words, the limited scope of review has been consistently followed in cases such as the present. (See People v. Miller, 145 Cal.App.2d 473 [ 302 P.2d 603 ]; People v. Smallfield, 131 Cal.App.2d 324 [ 280 P.2d 497 ]; People v. Silva, 119 Cal.App.2d 421 [ 259 P.2d 74 ].) Whether or not the act of defendant in selling James liquor tended to cause him to become an idle, dissolute, lewd or immoral person was essentially a question for the trier of fact. (People v. Deibert, 117 Cal.App.2d 410 , 416 [ 256 P.2d 355 ].) Applying the rule set forth in the Deibert ease to the facts presented herein, the finding that such acts on the part of the defendant did so affect the minor was reasonable and fully justified under the evidence presented.

It is further contended by defendant that a cash register tape which was introduced by him into evidence was an uncontradicted and unimpeached original business entry and hence as such must be accepted as true. This particular bit of evidence showed that on the day in question a total of only

Finally defendant assigns as error three rulings of the trial court sustaining objections to the admission of certain evidence offered by him. The first relates to his request that certain prosecution witnesses be required to show their wallets and the contents thereof to the court. In denying the request the court indicated that it would consider the matter if it later appeared that such examination should be had in justice to the defendant. However, no further request was made, and in the absence of a showing of prejudice no prejudice will be presumed. (See People v. Carmen, 43 Cal.2d 342 , 347 [ 273 P.2d 521 ].)

It is next contended that the court erred in refusing the admission into evidence of the names of all of the other persons who attended the party on the evening in question, and that the court further erred in refusing to allow testimony as to whether James had ever purchased liquor from any other person. Defendant, by such evidence, apparently desired to show that other persons at the party had relatives in the liquor business, and hence it was more likely that James would have purchased the liquor from them than from himself. Certainly such evidence was wholly irrelevant in this proceeding since the sole question was whether or not defendant had sold liquor to James on this particular occasion.

It is further contended that the court also erred in denying admission into evidence of an affidavit by the secretary of defendant’s counsel which was apparently offered for the purpose of showing the reason why the district attorney filed suit in the present proceeding. The second was an affidavit of counsel himself concerning a conversation with the district attorney for the purpose of showing possible prejudice in the county against the defendant. What may have been the district attorney’s reason for initiating the proceeding was wholly irrelevant; and secondly, the only possible relevancy

Subsequent to the filing of briefs, defendant petitioned this court for an order to take additional evidence upon the grounds that the evidence sought to be adduced would tend to prove that two witnesses were lying; that Chateau Laisne was closed at the time of the alleged sale to James; and that defendant did not make the purported sale.

Even assuming the propriety of such action by this court (see People v. Cowan, 38 Cal.App.2d 144 , 153 [ 100 P.2d 1079 ]), the evidence sought to be introduced would be merely cumulative and could in no respect be conclusive of the fact that the defendant had not made the sale to James as alleged.

The motion for leave to produce additional evidence is denied. The judgment is affirmed.

Van Dyke, P. J., and Sehottky, J., concurred.

A petition for a rehearing was denied October 9, 1958, and appellant’s petition for a hearing by the Supreme Court was denied November 12, 1958.