Full opinion text
McCOMB, J. These are automatic appeals from judgments of guilty of murder in the first degree setting the penalty at death. On March 9, 1957, shortly after it was closed at 2 a. m., the bar of the South Seas Restaurant in Anaheim, California, was robbed by armed bandits. Defendant Rosoto (hereinafter referred to as “Rosoto”), Michael Rosoto (Rosoto’s half-brother, hereinafter referred to as “Michael”), Thomas Wearen Jenkyn and Warren Bruce Larson were involved in the robbery. Michael and Jenkyn wore silk-stocking masks, while Rosoto wore a blue-black yachting cap. Larson was in the bar pretending to be drunk and let the others in. Louis Suboter helped plan the robbery. Mr. Leslie Simpson, the owner of the bar; Pern Vanatta, a guest (who later became Mrs. Simpson); and Howe, Welch, and Allen, employees, were robbed, herded into another room, and locked up, after which the cash registers were rifled and the telephone ripped from the wall. Jenkyn was apprehended and questioned about a series of other robberies, and at the time implicated Michael and Rosoto in the South Seas robbery. Rosoto was later charged with the armed robbery of Simpson, Howe and Allen at the South Seas bar, and his trial was set for April 20, 1959. February 7, 1959, shortly after 3 a. m., Leslie Simpson was shot and killed as he returned home from the South Seas bar with his wife, who was seriously injured. According to the testimony of Mrs. Simpson, the killing was accomplished by a tall, thin man who wore a loose jacket, carried a big gun, and came running from the north side of their home after they had parked their ear preparatory to going into the house. Mr. Simpson was shot through the chest; Mrs. Simpson ’s left arm was shot off at the wrist and her right arm was badly wounded. Rosoto was acquitted of the armed robbery charges at his trial on April 20, 1959. In the present proceeding Rosoto was found guilty of (1) murder in the first degree for killing Leslie Simpson, (2) conspiring with Michael, Suboter, Jenkyn and Larson to commit burglary and robbery of the South Seas bar in Anaheim, California, on March 9, 1957, (3) burglary of the South Seas bar, (4) kidnaping with intent to commit robbery (two counts), (5) perjury, and (6) conspiracy to obstruct and pervert justice by delaying, impeding and avoiding criminal proceedings instituted against him for the robbery; defendant John Frank Vlahovieh was found guilty of (1) murder in the first degree for killing Leslie Simpson, (2) perjury, and (3) conspiracy to obstruct justice; and defendant Donald Glen Franklin was found guilty of (1) murder in the first degree for killing Leslie Simpson and (2) conspiracy to obstruct justice. Questions: First. Was there substantial evidence to establish the guilt of each defendant on the charges of which he was found guilty? Yes. In a criminal prosecution the weight of the evidence is for the jury to determine in the first instance; and if the circumstances reasonably justify its verdict, this court must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence. (People v. Newland, 15 Cal.2d 678, 681 [104 P.2d 778].) Applying the foregoing rule to the facts in the present case, the record discloses as follows: Rosoto participated in the South Seas bar robbery. Both Mrs. Simpson and Mr. Howe testified he was the unmasked bandit. The testimony of Mr. Simpson, which was read into evidence, also identified him as such. In addition, Larson, Suboter, Jenkyn and Michael testified that he had participated; and in a telephone conversation with Michael on March 4, 1960, Rosoto admitted his participation. On February 6, 1959, Rosoto bought a plane ticket for Tacoma, Washington, departing on a plane which left Los Angeles at 12:30 a. m. February 7, 1959. The murder of Mr. Simpson and the mutilation of Mrs. Simpson occurred shortly after 3 a. m., while Rosoto apparently was airborne. Michael was married in Seattle on February 7, 1959, at 6 :30 p. m. There was a reception afterward in the Empire Way Community Club. Rosoto, however, did not attend the wedding. A few days later Rosoto returned to California, and on April 20, 1959, was acquitted on the charges of robbing Simpson, Howe and Allen at the South Seas bar. At the trial Rosoto and Ylahovieh testified that they were together the entire evening of March 8, 1957, and early morning of March 9, 1957; that from about midnight until 2 a. m. they were at the California Hotel; and that immediately thereafter they went to dinner at a home in Highland Park, remaining until some time after 4:30 a. m. A few weeks after the trial Rosoto returned to Tacoma, accompanied by Ylahovieh. The day after their arrival they talked with Michael at the plant where he was working. That night they went to dinner with Michael and his wife at a restaurant. The next evening, according to Michael’s testimony, while he and defendants were eating dinner at the Roma Café, Ylahovieh laughed and joked with Franklin about how “this guy got killed” and stated that that was the way he was going to do things from then on. Ylahovieh also indicated he was the driver of the murder ear and said he had slumped down to make it seem as if he were Michael. Michael further testified that Franklin said murder is “the easiest thing in the world to get away with; you can fly from one town to another, do what you have to do and get back.” He also testified that Rosoto made the following statements: “We had them people taken care of real good.” “There was only four people that knew about it. And anybody that done any talking, we would know who it was.” “That’s the way we are going to do things from now on. Anybody gets in our way, that’s it.” According to Michael’s testimony, Eosoto had called him during April 1959 to collect witnesses. Michael then went to Captain Eouse, of the Seattle Police Department, again contacting Captain Eouse in May before and after Eosoto and Vlahovich returned to Tacoma. Captain Eouse testified that Michael told him on the evening of May 13, 1959, that Eosoto and Vlahovich had just admitted to him at the Eoma Café that they had been responsible for the death of Mr. Simpson. On February 6, 1960, in a conversation with Michael at the Skyway Motel Eosoto said, regarding the Simpson murder: “They’ll probably indict me by the Grand Jury . . . murder is never over with. ’ ’ In addition, in his telephone conversation with Michael on March 4,1960, Eosoto said: “That’s the way you go when you play the game. You don’t play it for fun, you play for keeps. . . . No, that’s just the start of it. I’m going to have to take care of about a half a dozen more one of these days.” When asked if he had said this, he replied, “I was just going along with the gag.” Then he admitted, “I could have, sir.” Finally, he said, “I just don’t know if I said it in those words. ’ ’ During the course of the telephone conversation Eosoto also said, when Michael cautioned him to watch himself, “I do, but I’ve got my boys to do my work.” Michael further testified that at the wedding reception Franklin said that he had just returned from California and that Eosoto was trying to contact him (Michael). He also said that during the first week in March 1960 Franklin told him that on the evening of February 6, 1959, he had flown to San Francisco, where Ealph Johnson boarded the plane; that they proceeded to Los Angeles and were met by Vlahovich; that they had a few drinks and then they all went out to “this guy’s” house and waited a couple of hours for him to come home; and that Johnson then killed the man. Barbara Hale testified that at Michael’s wedding reception she heard Franklin tell three men that he had just flown to Seattle from California, had “taken care of it for Joe,” and they should watch the newspapers and they would see it. She further testified that in May or June 1959 she saw Franklin at a tavern in Seattle and that he started bragging about things he had done and “gotten away with.” He first mentioned robbery and then said that when he was in California in February, he had shot and killed a man and shot the arms off a woman. He also told her he had done it for Bosoto, who had paid him to do it. In a conversation with Charles Harrelson, another inmate of the jail, while awaiting trial, Ylahovich offered to kill a man for $35,000. In assuring the inmate he was the man for the job, he said: “Well, there is this one. There have been several others and I haven't missed yet. ’ ’ On September 11, 1957, Bosoto was injured in an automobile accident in Tacoma. He was driving the car of his attorney (Mr. Ursich) and was struck by a truck driven by one Hickman and was injured, spending 64 days thereafter in a hospital. Hickman testified that he was paid $500, and promised $5,000, to strike the car from the rear and that Bosoto and Ylahovich conducted the negotiations. Similar testimony was given by Michael. In the conversation with Michael at the Skyway Motel, Bosoto said that he had beaten his ease by stalling. This evidence clearly supports the inference that the accident had been arranged to prevent Bosoto’s extradition to California. His attorney, now deceased, represented at the extradition hearing that Bosoto was not well enough to return to California, when, in reality, he had driven his family from Tacoma to California prior to that time. The foregoing evidence was sufficient to sustain the verdicts as to each count upon which defendants were found guilty. Second. Was Franklin denied the right to counsel? No. Franklin contends that by refusing him a continuance of trial, the court denied him the effective services of court-appointed counsel. The indictment was filed April 7, 1960. Franklin appeared without counsel April 11. Samuel Dreizen was appointed April 12 to represent him upon his arraignment and on April 15 was appointed to represent him throughout the proceedings. On April 25 Franklin demurred to the indictment. His demurrer was argued and overruled April 29. He then made a motion under section 995 of the Penal Code, the motion being argued and denied May 6. On this date he pleaded not guilty and made a motion for a separate trial, which motion was taken under advisement. The matter was set for trial May 23 over his counsel's representations that he needed until July to prepare his case. His codefendants had urged “as speedy a trial as is possible.” On May 12 Judge Shea denied Franklin’s motion for separate trials and confirmed the trial date. On May 23 Franklin asked Judge Crookshank for a continuance. The motion was denied without prejudice, and the ease was assigned to Judge Morrison for trial. Franklin then renewed his motions for a continuance and separate trials, which motions were denied. Mr. Dreizen told Judge Shea on May 6 that his client’s witnesses were in the State of Washington and he would be constantly engaged in trial or preparations for trial until May 23. He renewed his representations to Judges Crookshank and Morrison on May 23, explaining that although he had hired an investigator, there had been insufficient time either to complete the investigation or to subpoena the Washington witnesses. Franklin was entitled as a matter of right to five days’ preparation. (Pen. Code, § 1049.) The selection of a jury began May 23 and ended July 12. The People began presentation of their case July 13 and rested August 3. Franklin’s first witness testified August 23. From May 6, the day trial was set, to July 13, when testimony was first taken, over nine weeks had elapsed. From May 6 to August 23, when Franklin opened his case, over fifteen weeks had elapsed. Furthermore, on August 15 the trial was recessed until August 22 to enable Franklin’s witnesses to fly in from Seattle. Franklin received a vigorous and able defense. It is not now claimed, nor was it claimed upon his motion for a new trial, that he was unable to consult with counsel or that he was prevented from securing any witness whose testimony he wished to present or any physical evidence he wished to introduce. Of the nine persons mentioned to Judge Morrison on May 23 as prospective out-of-state witnesses, three were members of Franklin’s family, one of whom did not testify. Of the others, all appeared except one Shryne, whose name was removed by stipulation from Franklin’s formal request for their attendance. , In view of the foregoing, it is evident that there was no deprivation of Franklin’s right to counsel. (People v. Dorman, 28 Cal.2d 846, 850 [1] [172 P.2d 686].) Third. Did the trial court err in denying Franklin’s and Vlahovich’s motions for separate trials? No. Franklin and Vlahovich were not entitled to separate trials as a matter of right. (Pen. Code, § 1098.) Upon the face of the indictment the nine counts were properly joined, and it is not contended that they were not. There was “a common element of substantial importance in their commission, ’ ’ Rosoto’s participation in the South Seas robbery, and the joint effort to immunize him from prosecution. The fact that Franklin was charged in only two of the nine counts, and Vlahovich in only three, did not entitle either to a severance. (Pen. Code, §§ 954, 1098; People v. Chapman, 52 Cal.2d 95, 97 [1] [338 P.2d 428].) Count VI charged Franklin and Vlahovich with complicity in Simpson’s murder. Count VIII charged Vlahovich with perjury as a witness at Rosoto’s trial in April 1959. Count IX charged Franklin and Vlahovich with membership in a conspiracy to obstruct justice in Orange County, alleging among the overt acts the vehicle collision with Hickman on September 11, 1957, the murder of Simpson on February 7, 1959, and the respective perjuries of Rosoto and Vlahovich in April 1959. In a separate trial of Franklin for murder and conspiracy, once there had been established the fact of the murder and the existence of the conspiracy, the People would have been entitled to prove not only Franklin’s admissions to Barbara Hale and Michael, but the perjuries of his codefendants and the circumstances of the collision as well, for they involved acts and declarations of Rosoto and Vlahovich in furtherance of the original agreement. (Code Civ. Proc., § 1870, subd. 6; People v. Weiss, 50 Cal.2d 535, 563 [18] et seq. [327 P.2d 527] ; People v. Calhoun, 50 Cal.2d 137, 143 [2] [323 P.2d 427].) Likewise, the People would have been entitled to prove Rosoto’s participation in the South Seas robbery, not only to show the reason for the murder but also to show that Rosoto and Vlahovich gave false testimony at Rosoto’s trial in April 1959. Similar considerations apply to Vlahovich. The trial court instructed the jury at the close of the trial, and admonished the jurors on many occasions during it, that evidence admitted against one defendant was not to be considered against the others. It must be presumed that the jury followed the court’s instructions; we hold that the instructions were adequate to protect each defendant from the effect of evidence admitted against the others. (People v. Isby, 30 Cal.2d 879, 897 [19] [186 P.2d 405] ; People v. Santo, 43 Cal.2d 319, 332 [19] [273 P.2d 249].) Franklin contends that his motion for a separate trial was unfairly decided. His original motion was made May 6, 1960, before Judge Shea. Although the judge had evidenced an inclination to allow Franklin a separate trial, he specifically stated that the matter would be set down for a joint trial unless he ruled to the contrary. Counsel for Franklin knew that the deputy district attorney intended to file written opposition to the motion and that since the trial was set for May 23, the motion would be determined quickly. Although Franklin claims that the deputy’s memorandum in opposition to the motions for severance contained questionable and misleading representations, which he had no time to answer, he has not indicated in his brief what they are. No argument was presented on May 12, 1960, when Judge Shea denied the motion. In fact, the deputy district attorney was not even in court. This contention of Franklin is clearly without merit. Fourth. Did Bosoto’s acquittal of the charge of robbery of Simpson, Sowe and Allen at the South Seas bar constitute a conclusive adjudication that he did not commit robbery at the bar, and was it prejudicial error for the trial court to withdraw from the jury the question of res judicata? No. In count I Eosoto was accused of conspiring with Suboter, Jenkyn, Larson and Michael to commit burglary and robbery at the South Seas. Count II accused him of burglary in entering the South Seas with intent to commit theft. Count IV accused him of kidnaping Mrs. Simpson to commit robbery. Count V charged him with kidnaping Mr. Welch to commit robbery. He was found guilty on all four counts. At the prior trial he had been acquitted of robbing Simpson, Howe and Allen. Eosoto argues that the only question at his prior trial was that of his identity as the unmasked bandit; that the acquittal constituted a necessary determination that he was not the unmasked bandit and barred his prosecution upon counts II, IV and V; and that since the only physical activity alleged as an overt act in the conspiracy charge consisted of entering the South Seas bar and robbing its occupants, the acquittal also barred his prosecution upon count I. Under the facts as alleged in the indictment and found by the jury, Mr. Simpson was killed to prevent his testifying at the trial and as an example and warning to others. The murder of Mr. Simpson and the mutilation of Mrs. Simpson, both of whom had identified Eosoto at the preliminary hearing, were clearly intended, under the finding of the jury, to be for the purpose of barring their identification of Eosoto at the robbery trial. Proof of Eosoto’s direct participation in the South Seas robbery was admissible under count VI charging him with the murder of Simpson (to show motive), count VII charging him with perjury, and count IX charging him with a conspiracy to obstruct justice, in which the murder and the perjury were alleged as overt acts. With respect to these counts, it is therefore immaterial whether his acquittal of robbery barred his prosecution upon counts II, IV and V. With respect to the latter counts, a reversal of the judgment on them would serve no useful purpose in light of our affirmance of the judgment on count VI. (People v. Chessman, 52 Cal.2d 467, 496 [341 P.2d 679]; People v. Wein, 50 Cal.2d 383, 409 [42] et seq. [326 P.2d 457].) In any event, however, there is no constitutional prohibition against the state’s prosecuting different offenses at consecutive trials even though they arose out of the same occurrence, unless such a course would lead to fundamental unfairness. (Hoag v. State of New Jersey, 356 U.S. 464, 467 et seq. [78 S.Ct. 829, 2 L.Ed.2d 913].) Under the facts of the present case, no showing of fundamental unfairness has been made. In the Hoag case the defendant, after being acquitted on charges of robbing three persons in a tavern, was indicted for robbing another person during the same occurrence. Under a New Jersey statute, each of the four robberies, though taking place on the same occasion, constituted a separate offense, and the United States Supreme Court held that under the facts of that ease the defendant was not deprived of due process by consecutive trials. (P. 469 et seq.) The defendant in the Hoag case contended that the sole disputed issue in the previous trial related to his identification as a participant in the robberies and that his conviction was therefore barred by collateral estoppel. Pointing out that the state had recognized the rule and considered its applicability to the facts of the case, the United States Supreme Court held that whether collateral estoppel is to be applied to successive prosecutions for the same act is a question for the state courts and does not involve a matter of federal due process. (P. 471 et seq.) In support of his position that his acquittal in the prior trial barred his prosecution under the charge of conspiring to commit burglary and robbery of the South Seas bar, Rosoto cites Oliver v. Superior Court, 92 Cal.App. 94 [267 P. 764]. In that case the petitioners had been charged with 33 counts of larceny and embezzlement and were acquitted by a jury, but the jury failed to agree upon a thirty-fourth count charging conspiracy, in which the 33 thefts were the sole overt acts alleged. Prohibition was granted to prevent a retrial upon count 34, the court holding that acquittal of the substantive offenses was necessarily a holding that the petitioners were not guilty of conspiracy to commit those specific offenses. Oliver v. Superior Court, supra, is not applicable to the facts of the present case, for the reason that in the instant case there were acts by five conspirators, and only the acts committed by Eosoto were in issue at the former trial. None of his confederates were tried at that time. Since it is sufficient that one conspirator commit one overt act, Eosoto’s guilt of conspiracy would follow from proof that, pursuant to an agreement with him, any of his confederates entered the South Seas and committed the robbery. (People v. Robinson, 43 Cal.2d 132,139 [10a] et seq. [271 P.2d 865].) Fifth. Was Mickey Sevester an accomplice? Eosoto requested the court to instruct the jury that Mickey Sevester was an accomplice of his as to counts I, II, IV and V. This request was denied. The ruling was correct. Mickey Sevester was not one who was “liable to prosecution for the identical offense charged" against the defendant on trial in the cause in which” her testimony was given. (Pen. Code, § 1111.) She once handed Eosoto an envelope, upon which he drew a diagram of the South Seas. Upon an unspecified occasion she drove with Jenkyn (her husband) and Eosoto to the restaurant, and the latter pointed out the parking lot and the rest room window; and she picked up Jenkyn at Suboter’s house after the robbery. These activities, relied upon by Eosoto, did not establish her complicity as a matter of law. (People v. Santo, supra, 43 Cal.2d 319, 326 [1]; People v. Means, 179 Cal.App.2d 72, 85 [16], [17] [3 Cal.Rptr. 591].) Since it could be inferred that she was not an accomplice to the robbery, and the question whether she was an accomplice was left to the jury under proper instructions, it must be presumed in support of the judgment that the jury found she was not an accomplice. (Cf. People v. Santo, supra.) Sixth. Was evidence of other crimes properly admitted against Rosoto? Yes. Evidence of Eosoto’s complicity in 11 offenses other than the South Seas robbery was introduced for the purpose of establishing “a plan, scheme, system or design, into which fitted the commission of . . . the conspiracy alleged in Count I of the indictment.” Rosoto contends that the evidence was improperly received because the other crimes did not resemble the South Seas robbery and were proved by the testimony of his accomplices. In a prosecution for conspiracy evidence of other crimes may be received if it tends to show the existence of a common plan or system of the accused. (People v. Bompensiero, 142 Cal.App.2d 693, 707 [6] [299 P.2d 725] ; People v. Darnell, 97 Cal.App.2d 630, 634 [2] et seq. [218 P.2d 172]; People v. Cossey, 97 Cal.App.2d 101, 112 [4] [217 P.2d 133].) The test of admissibility is whether the offense charged and the other offenses exhibit a common modus operandi; whether they do so is primarily a question for the trial court. (People v. Baker, 183 Cal.App.2d 615, 622 [7] [7 Cal.Rptr. 22]; People v. Grimes, 113 Cal.App.2d 365, 371 [3] [248 P.2d 130].) Rosoto has incorporated in his brief a chart purporting to show the absence of significant similarities between the South Seas robbery and the other crimes. This chart, however, emphasizes insignificant points of divergence and does not point out the vital similarities. For example, the ninth item on the chart shows that two of the three participants in the South Seas robbery wore silk-stocking masks, whereas masks were not worn during the other offenses. However, in seven of the robberies and burglaries make-up and/or chest padding was used as a disguise. Furthermore, Michael testified that in one of the other robberies stocking masks were used. In each instance there was a conspiracy involving Rosoto and two or more accomplices. In all but one of the other robberies Rosoto provided the guns. In each instance there was either prior surveillance or “inside” knowledge or both. With only two exceptions, the establishments preyed upon were restaurants or markets. The robbers used their own cars or stolen cars or both. In most of the other cases the driver did not enter the premises. Except for Larson, the “inside” man, the participants in the South Seas robbery had also participated in committing the other crimes. They constituted a well-organized gang, with Rosoto as their leader. It is true that Rosoto entered the South Seas, but did not enter the other establishments. He explained, however, to Mickey Sevester, “It is the first time I have gone in on one of the jobs in about ten years and I really had a ball.” It was not necessary for the People to prove Rosoto’s complicity in each and every element of the other offenses beyond a reasonable doubt. It was merely incumbent upon the State to offer substantial proof. (People v. Albertson, 23 Cal.2d 550, 579 [8] [145 P.2d 7]; People v. Lisenba, 14 Cal.2d 403, 429 [7] [94 P.2d 569].) Rosoto claims that the only proof of his guilt consisted of accomplice testimony. Assuming that such testimony would have been insufficient to establish his guilt had he been charged with the other offenses, such evidence nevertheless constituted substantial proof, for had he been so charged it would have required only slight corroboration to sustain a conviction. (People v. Griffin, 98 Cal.App.2d 1, 26 [9] [219 P.2d 519].) Seventh. Was evidence of other crimes properly admitted against Vlahovich? Yes. Vlahovich was implicated in five of the other robberies and burglaries which were proved against Rosoto. The trial court on several occasions instructed the jury that this testimony was not offered against Vlahovich and was not to be regarded as evidence against him. At the close of the People’s case, however, the deputy district attorney made a motion “to expand the purpose” for which evidence of the other crimes had been admitted. He said; “I believe at the time those witnesses testified with relation to the activities in connection with a series of robberies that occurred in late 1956 and early 1957, that counsel interposed an objection that the evidence was not to be used against the defendant Vlahovich as to any offenses he was charged with, and I believe that at that time I agreed with counsel’s statement. “I have since re-examined my own position and the position of the law in regard to this and I am satisfied, your Honor, that the evidence of those witnesses in the matter in which it alludes to the activities of the defendant Vlahovich is material to the charge of perjury, only perjury, but is material to the charge of perjury in this indictment for this reason: The testimony of these witnesses establishes that the defendant Vlahovich was tied in, was connected with, was a party to a series of robberies that occurred—robberies, burglaries, thefts, whatever series of approximately a dozen that took place. He is not only [sic] on trial for any of those things but he is on trial for perjury. And it would seem to me that his association. with the defendant Eosoto is material to the issue of perjury. That is, how well did he know him ? How closely tied to him was he? How closely connected to him was he? That would be material to the issue of the perjury charge. "Similarly it would tend to establish a motive all his own to the charge of perjury in that it would show that the defendant Vlahovich had a reason for testifying falsely. He did not want the defendant Eosoto convicted because if other people came forward, if other people participated in a trial, it would involve him. Not necessarily in the South Seas, which we were concerned with in Eosoto’s trial, but within the series—in the series of robberies and perhaps trials in other areas or in other counties on those charges. "So that my motion, your Honor, and I make it only with in mind that at an appropriate time your Honor would instruct the jury along this line, that that evidence is admissible against the defendant Vlahovich for the sole purpose of establishing what motive, if any, he had to commit perjury and to establish his relationship with the defendant Eosoto who was on trial in April of 1959 in the Superior Court in Orange County.” The motion was granted, and the evidence of Vlahovich’s participation was submitted to the jury under an instruction limiting its purpose to whether it showed he had a motive to commit perjury in Eosoto’s behalf. Vlahovich contends that the court erred in granting the motion and argues that the evidence was inadmissible against Eosoto and himself and should not have been admitted at the close of the People’s case. We have pointed out above that the evidence was properly admitted against Eosoto. It likewise appears that it was properly admitted against Vlahovich to show that he had a motive to lie for his codefendant, Eosoto. Motive may be proved in a prosecution for perjury. (Harris v. State of Georgia, 69 Ga.App. 872 [27 S.E.2d 51, 52 [2, 3]].) It cannot be doubted that if Eosoto was the leader of a gang of robbers and Vlahovich a member of the gang, there existed between them a bond of mutual interest and a desire for mutual security closer and more exacting than a bond of friendship. Vlahovich contends it was improper to grant the motion to expand the purposes for which the testimony had been admitted, since he had not cross-examined the witnesses at any length and did not have an opportunity to cross-examine them at all after the granting of the motion. He may not urge this proposition before this court, because at the time the motion was granted he did not request that any of the People’s witnesses be called for further cross-examination. Had he made such a request, we must assume the trial court would have granted it. Eighth. Was it proper for the district attorney to have the recordings of the Skyway Motel conversations played to the fury and then refer to them in argument? Yes. The People introduced in evidence, and played to the jury, two tape recordings comprising a February 6, 1960, conversation at the Skyway Hotel between Rosoto and Michael, in which Joseph Rosato, a cousin of theirs, also participated. Rosato testified that during the conversation Rosoto said to Michael: “The only time you ever contact me is when you are in trouble” and “Every time I help you I end up getting myself in trouble.” Rosato had told the police that “Mike had run away and he wanted his brother to help him get out of a jam,” and that “Mike stated that he didn’t have any money, and Joe stated to him that the best thing for him to do was to go back to Seattle and give himself up.” Rosoto testified to the same effect, as follows: Michael told him he was involved in a robbery with Gino Pinto and Sonny Connors and needed his help; he told Michael he wanted no part of him and not to bother him any more and “it seemed like the only way I could make him understand me, that I wasn’t kidding, I had to cuss at him all the time so he would understand the point that I didn’t want nothing to do with him.” He admitted telling Michael that he could keep Gino in line by threatening him with “that Western Union deal” and he guessed he said: “That is your weapon. Use it.” He might also have told Michael that Chilfone was lucky he was not at the bottom of a creek somewhere. Rosoto’s statements about Chilfone and using a “weapon” against Gino are in the transcription of the recordings. Rosoto claims it was error to play the recordings because there was insufficient proof of their authenticity and because they were mainly unintelligible. He argues that there was no evidence to identify the voices and that the deputy district attorney committed misconduct in attributing in argument certain statements to particular speakers. Sergeant Cook described the placement of a microphone and transmission pack under a bed in Michael’s room at the motel on the night of February 5,1960, and a receiver and recording and monitoring equipment in an adjoining room occupied by himself, Moyle and other officers. About 8:30 a. m. on the 6th, Cook observed Rosoto arriving in the company of a man he later learned was Rosato, and the recorder was turned on. Two tapes were recorded. Rosoto and Rosato left Michael’s room, and Michael entered the room occupied by the officers. Michael then went back to his own room, whereupon Rosoto returned alone. Cook was shown the tapes, testified that he had listened to them, and described them, to the best of his knowledge, as true and accurate reproductions of the conversations and activities that took place in Michael’s room. Over Rosoto’s objection to their introduction upon the ground of improper foundation, the court admitted them in evidence. Upon cross-examination, Cook testified as follows: The tapes had been in his possession four days; he could identify them only by hearing them; he first listened to them February 7 in the district attorney’s office; he listened to them on two later occasions in the district attorney’s office; and he did not know if they had been rerun and amplified, but he did not recall that they sounded louder the third time than they did the first. The testimony of Cook was plainly sufficient to establish the accuracy of the recordings, the place where they were kept, and the absence of alterations and deletions. It is obvious that the beginning of the conversation was difficult to comprehend, as is evidenced by the colloquy between the court, the jury, counsel, and the technician, set out in Rosoto’s brief. However, after counsel had entered an objection that the recording was unintelligible, the court said: “Well, let’s continue and see if we can’t begin to work that into a little plainer as far as the voices are concerned. You go ahead.” Counsel replied: “For the record, then, I assume the motion is overruled?” The court answered, “Yes, for the present. ’ ’ Counsel’s ensuing actions are highly significant. At one point during the playing of the second tape he objected that the conversation was immaterial and irrelevant, and after the tapes had been played he moved to strike them as immaterial, irrelevant and prejudicial. The court had overruled his initial objection “for the present,” clearly contemplating that if the recordings were incomprehensible, the objection could be renewed and would then be reconsidered. However, it was never renewed. This failure to complain, together with counsel’s assertion that what he had heard was prejudicial to his client, must be deemed a concession that the recordings were sufficiently intelligible to be understood by the jury. With the exception of the first 176 feet, which were not played to the jury, the first tape consists of conversation among Michael, Bosoto and Bosato, and the second of conversations between Michael and Bosoto. The jury had heard testimony from Michael and Bosato and was familiar with their voices. Knowing Bosoto was also in the room, they could identify his voice by a process of elimination. Bosoto has had no difficulty in identifying the voices in his brief. When reading the statements to the jury, the deputy said that he was relying upon his own recollection and notes, but that what he was saying was not evidence and need not be accepted as evidence; and he expressly invited the jurors to replay the tapes. Had the jurors entertained any doubt that what the deputy said coincided with what they had heard, they would surely have done so. Franklin contends that all references to him should have been stricken from the recordings. This contention is devoid of merit, since the court admonished the jury at the time that statements in his absence were not evidence against him, and a formal instruction to this effect was given. (People v. Grace, 166 Cal.App.2d 68, 75 [12] [332 P.2d 811].) Ninth. Was evidence of the telephone conversation on March 4, 1960, between Bosoto and Michael admissible? Yes. It was stipulated that with one immaterial exception the transcript was an accurate reproduction of a tape recording of the same conversation. Michael testified that he listened to the recording and “it was the same when I was talking to Joe over the phone.” On voir dire, Michael testified as follows: Captain Bouse was present when the conversation took place and the recording was made; the machine was already set up, and he did not know who operated it; no mark was made on the tape; and he had heard the tape and read the transcript. When asked whether he remembered “the complete conversation” and “all of the contents,” he replied: “Not every little detail but I remember what I said. ’ ’ The transcript was read to the jury, and the recording was played during rebuttal. Bosoto contends it was error to admit the transcript and the recording because there was insufficient proof of the latter’s authenticity. This contention is devoid of merit, since Bosoto himself testified he made the incriminating admissions that appeared on the tape. He told his brother, “I am the guy that did it, ’ ’ respecting the South Seas robbery, and “They can’t touch me with a ten-foot pole,” respecting Simpson’s murder; and his evasive answers constituted an admission that he had said: “That’s the way you go when you play the game. You don’t play it for fun, you play for keeps’ ’ and “No, that’s just the start of it. I’m going to have to take care of about a half dozen more one of these days.” Franklin contends the court should have stricken the references to him from the transcript and the recording. This contention is devoid of merit. Although the references could well have been stricken, there was nothing in the conversation that Franklin had engaged in any criminal activity or was about to do so. Therefore, he could not have been prejudiced by the jury’s hearing the statements. Under article VI, section 4%, of the California Constitution, any technical error in this respect must be disregarded. Tenth. Was evidence of Bosoto’s automobile accident properly admitted? Yes. The People alleged in count IX, and proved upon the trial, that on September 11, 1957, Eosoto, while driving an automobile belonging to Ursieh, his attorney, in Tacoma, was injured in a collision with a truck driven by one Hickman. Eosoto told Oxandaboure, an investigator for the district attorney’s office, that his injuries prevented his returning to California to stand trial for the South Seas robbery until December 1958. Hickman testified that he was paid $500, and promised $5,000, to strike the car from behind and that Eosoto and Ylahovich conducted the negotiations. Michael gave similar testimony. There can be no question that if the accident had been staged for the purpose of delaying Eosoto’s extradition, it was properly pleaded as an overt act in the count charging a conspiracy to obstruct justice and properly shown upon the trial. There was evidence from which it could be inferred that the accident was legitimate or was staged in order to defraud Hickman’s insurance company. However, those inferences were not the only reasonable ones to be drawn from the evidence. September 10, 1957, the day before the accident, Ursieh wrote to the Orange County authorities, and read to Eosoto, a letter offering to surrender him upon $3,500 bond without seeking a continuance of the extradition hearing set for September 20, 1957. It was not shown to the exclusion of all other tenable inferences that the collision was really accidental or that Eosoto arranged it merely to raise bail. In August of the following year (1958) Ursieh represented to Judge Shackle-ford in the final extradition hearing that Rosoto was physically unable to return to California, although he had actually driven his family from Tacoma to Hawthorne, California, in the month of June 1958. Further, in the Skyway Motel conversation in February 1960 Rosoto gave Michael the following advice as to his defense on a fictitious robbery charge: “Here’s the thing, Mike, be smart. You stay away long enough, they’ve got to try them guys. ’ ’ The foregoing evidence is sufficient to warrant an inference not only that Rosoto made use of the accident to delay extradition but that it was conceived and carried out for that purpose. Eleventh. Was the cross-examination of Rosoto proper? Yes. When the transcript of the March 4, 1960, telephone conversation was read in evidence, two passages were omitted on motion of the defense. In the first omitted passage, Rosoto told Michael he was waiting for a telephone call and then would make arrangements “on the spur of the moment.” In the second passage Michael said, “You know the cops got my gun”; Rosoto said he would get one; Michael offered to get one; and Rosoto told him not to “because you guys ain’t going to travel with no heat on you. ’ ’ Upon cross-examination and over objection, the deputy district attorney called to Rosoto’s attention the passage about obtaining guns. When asked whether he made the statement last quoted, Rosoto replied: “Well, that answers the question, sir, Mr. Hicks, because there was three people there and they had to have a gun apiece-” and when the question was repeated he replied: “I believe so.” Rosoto contends that it was error to permit cross-examination regarding the second passage, which had been stricken from the transcript. In view of his testimony on direct examination, however, the cross-examination was proper. He testified on direct that the telephone conversation had been prearranged, Michael told him what to say, and he understood Gino Pinto was listening in. He testified: “He told me to tell Gino that there was a big future ahead, that there was going to be a big job going to be pulled, to promise Gino anything pertaining to crime, so he would leave Michael alone. And I went along with it. I lied.” The jury had to choose between two interpretations of the conversation, the one which would naturally be placed upon it by any rational person and the one advanced by Rosoto. It contained devastating admissions of his complicity in the South Seas robbery and the Simpson murder, and it was for the jury to determine whether they were legitimate or feigned, whether Rosoto made them for the purpose of protecting his brother from Pinto, and whether he made them knowing them to be true or believing them to be false. If Rosoto’s explanation was valid, the statements that he urges should not have been called to his attention on cross-examination were statements which, on direct examination, he said Michael told him to make. If Rosoto made the statements about the guns that he admitted making, his explanation that he was admitting his guilt of crimes he did not commit is reduced to hopeless absurdity. Twelfth. Was it proper to cross-examine Franklin about his acquaintance with Rosoto ? Yes. Franklin contends that the court committed error in allowing his cross-examination upon matters untouched on direct. More specifically, he challenges the questioning about a statement he gave in Ursieh’s office in May 1959 and a conversation he had with Oxandaboure after his arrest. Franklin’s testimony on direct consisted almost entirely of a description of his activities on February 6 and 7, 1959, and of denials that he made to Michael and Barbara Hale the admissions that they attributed to him. He argues that it was improper to cross-examine him on other matters. At the end of his direct examination, however, he was asked whether he killed Simpson and whether he had “anything to do with, participate [d] in, or in any way conspire [d] to obstruct justice as alleged in Count 9 of the Indictment.” This he denied. Franklin having denied in general terms his guilt of conspiracy, as well as his guilt of murder, the scope of cross-examination was necessarily wide. (People v. Sykes, 44 Cal.2d 166, 171 [7] [280 P.2d 769]; People v. Zerillo, 36 Cal. 2d 222, 228 [6] [223 P.2d 223] ; People v. Williams, 164 Cal.App.2d 285, 289 [4] [330 P.2d 942].) The prosecution was entitled to ask questions designed to show that Franklin was acquainted with his eoconspirators. Franklin was asked when he first met Rosoto, and replied that he first saw him “in the condition he is right now” in Ursich’s office in May 1959. Then he was asked whether Rosoto was present when he and Michael gave a statement in Ursich’s office, and he replied: “I don’t know. I didn’t—didn’t—nobody said Joseph Rosoto was there. That man there was there, though.” Upon being asked, “You don’t know yet that he is Joseph Rosoto ? ’ ’ Franklin replied: “ Well, he said he is Joseph Rosoto. I will believe him.” Franklin was shown a document that was represented to him as a transcript of the statement he gave in Ursieh’s office, and although he admitted “it sounds familiar,” he recalled none of the questions he had been asked or the answers he had given. Over objection, the questions and answers were read to him, and he was asked whether the statements he allegedly made were true. By this means the deputy elicited a narrative about the financial aftermath of the Hickman accident that did not implicate Franklin in the collision and did not involve him in Michael’s machinations except as a spectator. He was shown one question beginning, “Let me ask you again just like Joe did ...” and was then asked whether anyone named Joe asked him any questions. He replied: “I haven’t the slightest idea.” No doubt this line of cross-examination was designed to bring out the presence in Ursieh’s office of someone named Joe, i.e., Rosoto. Franklin was then asked, “That same person whom we now agree was Joseph Rosoto, he was in the office at the time this statement was given, wasn’t he?” Franklin replied: “I said I believe so. I don’t remember. I know it was—I forget what the answer was. I know it was a vague one anyway.” Since he had already admitted in a grudging and evasive manner that he saw Rosoto in Ursieh’s office in May 1959, further questioning calculated to draw the same information from him could not have harmed him. Franklin was also asked whether he and Oxandaboure had a conversation to which the latter had testified during presentation of the People’s case. On April 12, 1960, Franklin entered the courtroom. As a police officer escorted him to the front, he passed Rosoto, who was sitting on the aisle, and touched him on the shoulder, saying to Oxandaboure after he sat down, “Are you still trying to prove that I know Joseph Rosoto?” When Oxandaboure pointed to Rosoto and asked, “Have you ever seen that gentleman in the white sweater?” Franklin replied in the negative. Franklin was asked whether he had asked the question of Oxandaboure, and he admitted having done so. However, he said that he saw Rosoto in the courtroom, and the person to whom Oxandaboure had pointed was Rosoto’s attorney. It is contended that the questioning was improper because the answer given did not contradict Franklin’s previous testimony. This contention is devoid of merit. Having testified evasively that he saw Rosoto in Ursieh’s office but did not know whether it was Rosoto whom he had seen, it was proper for the deputy to question him about conduct from which it could reasonably be inferred that he knew who Rosoto was.. Thirteenth. Did the court err in admitting evidence of Michael’s prior consistent statements? No. During cross-examination, Michael admitted robbing a market in Seattle on February 13, 1960, following the Skyway Motel conversation. At the time of trial, he was facing a charge of armed robbery. James Makos, a witness for Franklin, testified that in a conversation at the Hitching Post with Connors, Monson and himself, Michael said that “he had a deal made” with the Seattle Police Department; that “he had his self to worry about now, pertaining to this Ralph’s robbery”; that his testimony was false; and that he was willing to repudiate it. In rebuttal and over objection, Captain Rouse testified that at 9 :40 p. m. on May 13, 1959, Michael informed him over the telephone as follows: He had been with his wife, Rosoto and Ylahovieh at the Roma Café; Rosoto and Ylahovieh told him “they had brought about the death of Mr. Simpson,” but they gave him no details; and Rosoto and Ylahovieh laughed and bragged about Mrs. Simpson’s appearance “without her extremities. ’ ’ Rouse’s testimony was admitted for the limited purpose of rehabilitating Michael by showing that he made statements consistent with his testimony at the trial “prior to any time or any indication of any pressure being put on the witness to make those statements at the time.” Rosoto contends that the court erred in permitting Rouse to rehabilitate Michael, because Michael’s statements were made at a time when he was controlled by motives of interest and bias, and the statements were inconsistent with his testimony at the trial. It is settled that when the testimony of a witness has been assailed as being of recent fabrication, evidence of his statements or conduct prior to the claimed fabrication consistent with his testimony at the trial may be admitted under an exception to the hearsay rule, not to prove the facts of the case but to show that the testimony of the witness was not a fabrication and he was not controlled by motives of interest. (People v. Walsh, 47 Cal.2d 36, 41 [2] [301 P.2d 247].) Fourteenth. Was the testimony of Esther BesnicJc properly received in evidence? Yes. Raymond Allen died after Rosoto’s robbery trial. Pursuant to stipulation, his former testimony was read in evidence as part of the latter’s ease. In rebuttal, Esther Resnick, the court reporter, testified that Allen shook visibly while testifying, and told her during recess and as he was leaving the stand: “I had to testify that way. I was threatened. They would have shot me.” The testimony of Mrs. Resnick was properly received for the purpose of impeaching Allen by proof of subsequent inconsistent statements. (People v. Collup, 27 Cal.2d 829, 836 [2a] [167 P.2d 714].) Allen’s remark, as related by Mrs. Resnick, was inconsistent with the testimony he had just finished giving. Therefore, it was properly admitted. Fifteenth. Were Harrelson’s testimony and the Harrelson-Vlahovich recordings properly received in evidence? Yes. Ylahovich contends that it was error to allow in evidence Harrelson’s testimony regarding their conversations in the Orange County Jail and to permit tape recordings of their conversations of July 8, 14, 25, 28 and 30 to be received in evidence. When Ylahovich was cross-examined August 15 about his statements to Harrelson, the deputy district attorney explained his theory of admissibility as follows: “Your Honor, if the evidence tends to show that this witness is available to kill for hire, I think that that would be a vital, a most important, inquiry for this trial for the benefit of the jury. It does contribute. We are not just talking about prejudice. It contributes to his guilt or innocence of these charges. ’ ’ Harrelson testified, as a rebuttal witness, on direct, cross, and redirect examination during the afternoon of August 30 and the morning of August 31 with no opposition to his testimony other than scattered objections that certain answers were conelusional or unresponsive. At the commencement of the afternoon session of August 33, Ylahovich made a motion to strike. The deputy said in opposing the motion: “The evidence that we have here is offered on the theory that it shows intent or state of mind Avhieh is always material to a charge of this character where intent or frame of mind is an issue.” He also said: “The witness, Harrelson, has testified that Mr. Ylahovich on one occasion . . . in discussing the killing of this other person, Roy, that the defendant Ylahovich said ‘Well, there was this one and there was several others’—words to this effect—‘Several others and I haven’t missed yet.’ Now, that is of course evidence that the People are entitled to introduce and we couldn’t introduce it in a vacuum, anyway. We would have to introduce it under the circumstances in which that conversation came about. ’ ’ The motion was denied. Harrelson’s testimony was submitted to the jury under a People’s instruction limiting its application to whether it showed Ylahovich was familiar with or possessed the means-allegedly used in the Simpson murder, showed he possessed knowledge that may have been useful or necessary to its commission, and showed the circumstances under which he made admissions, if any, to Harrelson. Harrelson testified as follows: He told Ylahovich he and an associate named Roy, who was in a federal penitentiary, had placed $197,000 in a safety deposit box in Rio de Janeiro. Ylahovich told him he would be foolish if he did not have Roy “rubbed out,” and offered to split the money with him. He offered to kill Roy first for $47,000 and then for $35,000, half to be paid in advance, the remainder to be paid after the murder. When Harrelson asked Ylahovich if he thought he could take care of the job, Ylahovich replied: “Well, there is this one. There have been several others and I haven’t missed yet.” Ylahovich said he had a man in town whose fee would be $500 even if he did not kill Roy. During a discussion on July 14 regarding payment of the money, Ylahovich said, “The guy’s already killed.” In the same conversation Harrelson said, “If the son of a hitch is just shot down in the street or something like that, it is going to be pretty obvious,” and Ylahovich replied, “You leave that to us.” On July 28 Ylahovich said: “My motto is satisfy the customer.” “It’s not a favor I am doing. I am getting paid for everything.” “You will be satisfied. Don’t worry about it. The way this disappearance act—you know what I mean.” When Harrelson sought assurance he was the man for the job, Ylahovich answered, “You have my word for it.” On July 30 Harrelson exhibited to Ylahovich what purported to be a certified cashier’s check for $17,500 and told him that “If this thing goes off right, and God help you if it don’t,” he would earn his money. Ylahovich replied: “Don’t worry about God helping me. I ’ll help myself. ’ ’ Ylahovich told Harrelson he- never “talked on the guys that he worked for, that he would go to the gas chamber first. ” He also said: ‘ ‘ But these things really cost you. Every Tom, Dick and Harry can’t do it." Ylahovich argues, first, that he was entrapped into making the statements attributed to him by Harrelson. This contention is unsound, for it was he who suggested that Eoy be “rubbed out." It cannot, therefore, be said that he was entrapped. (People v. Benford, 53 Cal.2d 1, 10 [7, 8] [345 P.2d 928]; cf. People v. Atchley, 53 Cal.2d 160, 171 [346 P.2d 764].) There is likewise no merit in Ylahovich’s contention that Harrelson’s testimony was improperly received in rebuttal. He did not object in the trial court to its reception on this ground; therefore he may not do so on appeal. (People v. Wein, supra, 50 Cal.2d 383, 407 [37]; People v. Carter, 48 Cal.2d 737, 754 [20] [312 P.2d 665] ; cf. People v. Fitzgerald, 56 Cal.2d 855, 861 [4] [17 Cal.Rptr. 129, 366 P.2d 481]; People v. Chessman, supra, 52 Cal.2d 467, 493 [15].) Finally, Ylahovich contends that the tape recordings were inaudible and unintelligible. The jury had heard the testimony of Ylahovich and Harrelson and were in a position to identify their voices. The recordings were received for the proper purpose of corroborating Harrelson’s testimony. (People v. Vetri, 178 Cal.App.2d 385, 395 [9] [2 Cal.Rptr. 795].) Therefore, it was not a proper ground to exclude them for the reason that they were partially inaudible. (People v. Jackson, 125 Cal.App.2d 776, 779 [4a], [5] [271 P.2d 196].) Sixteenth. Was there any prejudicial error in the redirect examination of Michael? No. It was developed on cross-examination that Michael had once been committed to the Northern State Hospital, Sedro Woolley, Washington, for 90 days’ observation, and that his sister Della and Eosoto had assisted him financially on a number of occasions, the latter providing bail when he was extradited to California for the Safeway robbery. On redirect, Michael was asked whether prior to March 1957 he had committed any offenses with Eosoto. He testified, over objection, that in 1950, when he was 14, he went to a restaurant where Eosoto was working; that Eosoto gave him $300 or $400; and that he took the money home and they divided it. Upon being asked whether he had met a Seattle police officer named Pallimini, Michael testified, over objection, that Eosoto introduced him to Pallimini in 1950 and “He used to come pick me up at school, and I used to help him on burglaries." Upon motion of Eosoto, the answer was stricken, and the objection sustained. Michael then testified that it was “right after the occasion” in 1951 that he was sent to the hospital. He testified: “Well, the Court just sent me there. They wanted to know why I was hanging around with men, when I was only a youngster, with grown men. That is all. That is what they told me.” Rosoto contends that Michael should not have been questioned about the restaurant and Pallimini incidents. With respect to the former, the contention would seem meritorious; the deputy was attempting to relieve Michael of a charge of ingratitude by insinuating that his brother led him into a life of crime. However, the questions about Pallimini are not subject to this criticism. Michael’s commitment was brought out in an effort to show that he was mentally incompetent in 1951, hence mentally incompetent at the time of trial. In final argument counsel stated: “Michael Rosoto is sick. He has a diseased mind.. . . They had him committed to a mental institution for observation. ’ ’ Since Michael testified he was sent to the hospital because of his association with Pallimini, it must be presumed that it was to establish this fact that he was questioned about it. The veracity of his explanation was later confirmed by Rosoto, who admitted on cross-examination that he had suffered a prior conviction of grand theft in 1951; that he, Michael and Pallimini were involved; and that it was because of Michael’s involvement that Michael was sent to the hospital. In view of the admissions, there was no prejudicial error in the reception of the testimony, and under article VI, section 4%, of the California Constitution, the error, if any, must be disregarded. Seventeenth. Was it prejudicial error to allow in evidence an unsigned letter of Dr. Jones? No. Over objection, the People introduced in evidence an unsigned carbon copy of a letter from Dr. Charles Jones, Superintendent of the Northern State Hospital, Sedro Woolley, Washington, to the Supervisor of the Department of Public Institutions, Olympia, Washington, dated April 26, 1951. In the letter Dr. Jones stated that Michael Rosoto was neither mentally ill nor mentally deficient, although he was an habitual delinquent “whose delinquency is such as to constitute him a menace to the health and. safety of others.” The letter was offered to substantiate Michael’s testimony that he was not mentally ill in 1951 and was not committed to the hospital for mental illness. The letter should not have been received in evidence, since it was hearsay. Nevertheless, the letter did not prejudice Eosoto. It was established by his own testimony that Michael was sent to the hospital for observation,