People v. Abbey

FOX, P. J. Defendant was charged in Count 1 with intercepting a telephone communication between “Sylvene D. Happennie and persons at the Bank residence in Los Angeles.” In Count 2 he was charged with intercepting a telephone communication between Arthur W. Happennie and Ralph Walsh. He was found guilty of both counts. Defendant has appealed from the judgment. He has also attempted to appeal from the order denying his motion for a new trial but since such an order is not now appealable, the purported appeal therefrom must be dismissed.

In view of the nature of defendant’s attack upon the judgment, it is necessary to give the factual picture in considerable detail. On April 18, 1962, Peggy Bollard accompanied defendant in his 1962 Mercury to a position west of Cold-water Canyon off Mulholland Drive. They arrived at approximately 6:45 p.m. and remained there for some two and one half hours. Defendant told Peggy that he was going to listen to and record some telephone conversations and that he had been at this location many times before for the same purpose. Peggy had met defendant while he was working for her sister in a divorce action and had been advised that he was a private detective.

Around 7:30 p.m. Peggy heard a phone dial, then heard two men each say “hello” and discuss stocks and a court hearing that was to take place on April 23, 1962. The name “Ralph” was mentioned. This conversation lasted approximately 10 minutes. On April 18, 1962, Harry Happennie lived at 3141 Coldwater Canyon, North Hollywood. At around 7 o’clock that evening, Mr. Happennie placed a call from his telephone which had a Triangle number to Ralph Walsh at the Balboa Country Club. He told Walsh that he had asked or was going to ask the federal court to allow him to remain as a defendant in a pending lawsuit. This call lasted 5 to 10 minutes. Walsh testified that he received a telephone call from Harry Happennie during the evening of April 18, 1962. They discussed whether Happennie should withdraw from the federal court litigation. They also discussed the fact that someone was attempting to purchase 220,000 shares of stock of McMillan Petroleum Company. According to Walsh, this conversation lasted probably 10 minutes.

Between 7:45 and 8 o ’clock that evening, Peggy heard a conversation between a woman and a child. The child was asked if her mother was home and answered that she was not. [517]The woman inquired if the child was home for Easter and whether the family had moved. Peggy estimated that the conversation lasted only a couple of minutes. Happennie's wife, Sylvene, testified that she placed a telephone call during the early evening of April 18, 1962, using her Triangle number. She talked to a little girl at the Bank residence for some three minutes. According to Mrs. Happennie, the child, on being questioned, stated that her mother was not home. A move from one apartment to another, as well as the Easter holiday were among the subjects discussed. Mrs. Happennie and her husband testified that they did not give permission to defendant to listen to their telephone calls or to install a listening device on their telephone line. It was stipulated that no permission had been given by the telephone company.