People v. McGinnis

123 Cal.App.2d Supp. 945 (1953) THE PEOPLE, Respondent,

v.

RALPH B. McGINNIS, Appellant.

California Court of Appeals.

Nov. 23, 1953. John E. Glover for Appellant.

Ray L. Chesebro, City Attorney, Donald M. Redwine, Assistant City Attorney, and Dan J. Whiteside, Deputy City Attorney, for Respondent.

BISHOP, J.

The determination of this appeal depends upon the answer to this question: Was it error to admit evidence of the fact that, when arrested on the charge of driving a motor vehicle while under the influence of intoxicating liquor, the defendant declined to comply with the police officers' request that he submit himself to an intoximeter test? [1] We have concluded that it was not error, and that the judgment should be affirmed.

This case falls within the field already containing two well established types of cases: those in which, by statement or by silence in the face of an accusatory statement, the defendant made an admission that serves to establish his guilt (see People v. Simmons (1946), 28 Cal.2d 699, 712-713 [172 P.2d 18, 25], and cases cited); and those in which by some action he revealed a consciousness of his guilt. Illustrative of the latter type of case we have those in which evidence was received of flight (People v. Anderson (1922), 57 Cal.App. 721, 727 [208 P. 204]; the making of contradictory statements to conceal the true facts (People v. Gentekos (1931), 118 Cal.App. 177, 182 [4 P.2d 964, 967]; the use of a false name (People v. Liss (1950), 35 Cal.2d 570, 576 [219 P.2d 789, 793]). The facts of our case bring it close to the group of cases last cited, for it was not what the defendant said that was significant, nor his failure to say anything, but what he refused to do.

The fact that the defendant at all times denied his guilt does not require the conclusion that the evidence be excluded. If one on trial for any offense had endeavored to conceal his identity after the crime by use of an alias, surely that fact would not be inadmissible in evidence, because as he gave the assumed name he also declared that he was an innocent man. [2] Where actions may speak louder than words, the jury should be permitted to consider both. We do not find in People v. McGee (1947), 31 Cal.2d 229, 239 [187 P.2d 706, 712], any reason to abandon or modify the conclusion we have expressed. [123 Cal.App.2d Supp. 947]