People v. Erving

An indictment presented in May 1957, by the grand jury of Los Angeles County accused “Jane Doe (Charlene) female Negro, 39 years, 5'7", weight 165 pounds, olive complexion” with three counts of unlawfully selling heroin on March 14, 18, and 19, 1957. By virtue of the indict

Richard Renty testified as follows: He became a police officer in Los Angeles in October 1956, and was assigned to duties in the East Fifth Street area as an undercover officer in the narcotics division. On March 14, 1957, about 4:30 p. m., a man introduced him to defendant when they were at the corner of Seventh and Stanford Streets. About 7:30 p. m. of that same day he (witness) went to the Belvedere Hotel on East Sixth Street where he saw Charlene, the defendant, in the kitchen. He asked her if he could get a $10 paper. After replying in the affirmative, she took him to another room where he gave her a $10 bill. She left the room and returned about five minutes later and handed a bindle to him. The expression “$10 paper,” as used by addicts, means heroin. He took the bindle to the narcotics division, put his initials on the bindle, sealed the bindle in an envelope, and delivered the envelope to his superior officer who “booked” it at the police station. The bindle which is in the envelope, referred to as Exhibit 1, is the bindle which the defendant handed to him on March 14, 1957.

He testified further that on March 18, 1957, he went into room 4 of the same hotel and there told defendant that he wanted a $10 paper. She said she might get it from another girl. He handed $10 to defendant and she took him to a room marked “Manager” and told him to wait there. She left the room and returned about five minutes later and handed a bindle to him. He took the bindle to the narcotics division, put his initials on the bindle, sealed the bindle in an envelope and delivered the envelope to his superior officer who “booked” it at the police station. The bindle which is in the envelope, referred to as Exhibit 2, is the bindle which the defendant handed to him on March 18, 1957.

The white substance which was in each of the three bindles was heroin.

Defendant testified in substance as follows: She is 43 years of age and has lived in Seaside, California (near Monterey) since 1950. She was arrested in her home in Seaside in April 1959, about 3 o’clock in the morning. She did not sell heroin to Renty on March 14 or 18 or 19, 1957. In March 1957, she lived in her home in Seaside and she performed day work in different homes in the area of Monterey and Carmel. She worked for Mrs. Hancock, Mrs. Mac, and Mrs. Gann. In the summer of 1956 she worked at the Casa Munros Hotel in Monterey. In March 1957, her husband was employed at the Monterey Airport as building superintendent, and he owned a business known as Irving Ramp Service at Port Ord. In the first part of March 1957, while she was at her home she paid an insurance premium to an insurance agent who came to her home. She and her husband had lived at the Belvedere Hotel in 1949 before they moved to Seaside. The last time she was at that hotel was just before Thanksgiving Day in 1956 when she and her husband went there during his vacation. After his vacation was over he returned to their home, and she visited at the hotel. Her weight is 110 pounds. In 1957 her weight was between 110 and 115 pounds.

On cross-examination, she testified that she did not register at the Belvedere Hotel in 1956; and she has never seen the register for that hotel.

At the request of the deputy district attorney, during cross-examination of defendant, a book which he referred to as a hotel register was marked Exhibit 6 for identification. The deputy opened the book at a certain page (which page was not numbered) and said that on the second line from the bottom of the page there appears the date March 4, 1957, and “a signature of a name,” and opposite the name there is the

Defendant’s husband testified in substance as follows: On March 14, 18, and 19, 1957, the defendant was at their home in Seaside. He is a building superintendent for the Monterey Airport and is the owner of the Irving Ramp and Baggage Service. In March 1957, the defendant’s weight was about 110 pounds. About September 1956, he and defendant were at the Belvedere Hotel.

Mrs. Nicolas, called as a witness by defendant, testified that she (witness) resided in Carmel; her husband is an Episcopalian clergyman; defendant has been employed by her since January, 1958.

Mrs. Hancock, called by defendant, testified that she resides in Carmel; she is an interior decorator; in March 1957, defendant did housework in the home of the witness, but she (witness) cannot say that she saw the defendant on March 14 or 18 or 19, 1957.

Mr. Page, called by defendant, testified that he resides in Seaside; he is a Baptist minister; he has known defendant since 1954; she is assistant pianist in his church and is president of the choir; in the middle of March he saw defendant in Seaside; she participated in the Easter program and the preparation of that program in 1957 (Easter in that year was April 21); he saw her the first and second Sundays in March 1957, but after that he does not remember when he saw her in that month; she had been absent from the church and she returned around the first of March, 1957.

Mr. Turner, called by defendant, testified that he resides in Seaside and is a teletype operator; early in March 1957, when he became the pianist for a Baptist church in Seaside he saw the defendant at the church; he saw her in Seaside many times during March 1957.

Mr. Nottenkamper, called by defendant, testified that he resides in Pacific Grove and is an agent of an insurance company; he has known defendant and Mr. Irving since 1950, when he sold them an insurance policy; since that date he has called at their home many times to collect the monthly insurance premium; on March 4, 1957, he collected an insurance premium from her; after that date he saw her in the Monterey area several times but he cannot recall the exact 'times when he saw her.

In rebuttal, the prosecution called Officer Barry who is a narcotics agent for the state. The deputy district attorney

Mr. Mire, called by the prosecution as a witness on rebuttal, gave testimony which was legally sufficient to support a conclusion by the trial judge that the witness was qualified as a handwriting identification expert. The judge denied the request of counsel for defendant for permission to examine the witness on voir dire regarding his qualifications. The deputy district attorney said to the witness: “Directing your attention to People’s Exhibit 6 for identification which is a book, a hotel register, and in particular to a page where there are paper clips, have you ever seen this book and this page before?” The witness replied, “Yes, in August of 1959.” The

Appellant contends that the deputy district attorney’s argument to the jury with respect to the exemplar of appellant’s handwriting, Exhibit 5 for identification, was improper because the exemplar was not received in evidence. He also asserts in effect that the court erred in allowing the exemplar, which was an exhibit for identification, to be taken by the jury into the jury room. Appellant testified that the writing on Exhibit 5 for identification is her handwriting, except that the date “August 20th” thereon does not look like her writing and she would not say that the date is or is not her writing. The prosecution witness who testified as a handwriting identification expert testified concerning the exemplar. Since there was testimony before the court regarding the exemplar, the deputy district attorney was entitled to discuss that testimony in his argument to the jury. (See People v. Costa, 145 Cal.App.2d 445 , 447 [ 302 P.2d 634 ].) Appellant did not object to the deputy's reference to the exemplar, or object to the exemplar being taken into the jury room. Appellant did not call the judge’s attention to the fact that the exemplar had not been received in evidence. It is apparent that by reason of inadvertence the Exhibit 5 for identification (the exemplar) was not offered or received in evidence. It was admissible in evidence.

Another contention of appellant is that certain statements which the deputy district attorney made in the presence of the jury before and during the deputy’s argument constituted misconduct. Some of the statements so referred to were to the effect that the deputy said that the defense was trying to confuse the record, that appellant was trying to cloak herself with respectability, that the reason Mrs. Gann was not present to testify was that her memory could not be refreshed, and that the appellant had a heavy conversation with her counsel. Appellant also asserts that the deputy accused her counsel of misrepresentation. It would unduly extend this opinion if detailed references were made to those statements. With one exception, appellant did not assign any of the statements as misconduct or request the court to instruct the jury to disregard any statement. The exception referred to related to argument of the deputy to the effect that there was misrepresentation by counsel for appellant in that he did not read any of the leading questions that were asked Officer Eenty at the hearing before the grand jury. Thereupon counsel for appellant asked the judge to admonish the deputy not to make such prejudicial statements. The judge replied, “Well, the jury understands that this is just argument. ’ ’ The statements referred to did not constitute prejudicial misconduct.

Appellant also contends that the court erred in not receiving certain checks in evidence. One of the checks so referred to was for $32.02, dated March 4, 1957, drawn by Mrs. Hancock, and payable to Ethel Johnson for house work done at Mrs. Hancock’s home in Carmel. Ethel Johnson is the mother-in-law of appellant. There was testimony that on occasions appellant substituted as employee at Mrs. Hancock’s home in place of Ethel Johnson. Apparently the appellant offered the cheek in evidence on the theory that it would tend to prove that appellant was in Carmel on March 4, 1957. The court did not err in sustaining the objection to the offer of that check in evidence. The other checks so referred to were drawn by appellant’s husband and were payable to persons other than appellant. Appellant states that those checks were offered to prove that appellant’s husband signed all checks pertaining to their household expenses. The court did not err in sustaining the objection to the offer.

Appellant contends further that the “testimony of defense counsel, called by the prosecution, and given over

Other contentions of appellant are to the effect (1) that the court unduly limited the cross-examination of prosecution witnesses, and (2) that the prosecution’s attempt to “rehabilitate” Officer Renty with respect to his testimony as to the weight of appellant and as to other matters was improper. These contentions relate to matters which were within the discretion of the trial judge. The points involved are not sufficiently meritorious to justify a detailed statement of the evidence upon which the points are allegedly based. The court did not abuse its discretion in the matters involved in these contentions.

In view of the above conclusions it is not necessary to discuss other contentions.

The judgment and the order denying the motion for a new trial are affirmed.

Fourt, J., and Lillie, J., concurred.

A petition for a rehearing was denied March 15, 1961, and appellant’s petition for a hearing by the Supreme Court was denied April 19, 1961.