Monday, December 12, 2011

Birds & Bees



SPENCER LAW FIRM LEGAL PRATTLE
“Superfluity Does Not Vitiate!”

"She was not quite what you would call refined. She was not quite what
you would call unrefined. She was the kind of person that keeps a parrot."
(Mark Twain)

“But you have retired, Holmes. We heard of you as living the life of a hermit among your bees and your books in a small farm upon the South Downs.” “Exactly, Watson. Here is the fruit of my leisured ease, the magnum opus of my latter years!” He picked up the volume from the table and read out the whole title, Practical Handbook of Bee Culture, with Some Observations upon the Segregation of the Queen.

“His Last Bow” (The Complete Sherlock Holmes)

BIRDS & BEES have on occasion winged their way onto the jurisprudential landscape. Casanova, a loquacious parrot, starred as the key witness in “The Case of the Perjured Parrot” from the (original) Perry Mason TV Series based on Erle Stanley Gardner’s 1939 murder mystery of the same name. (Yes, Perry won.) Murder victim’s pet African Gray parrot yclept Max played a similar role in a true life California homicide. Jane Gill (age 36) was found smothered to death in her bedroom. Her business partner (and beneficiary of three life insurance policies for the deceased totaling Two Million Dollars) Gary Rasp was charged with murder. However, Max the parrot caste some doubt on things as, post mortem, he kept repeating, Richard, no, no, no. Richard, no, no, no.” Defense counsel jumped all over this but the judge didn’t want the jury “poisoned” by such bird brained chatter. Gary Rasp was convicted. (Where’s Perry when you need him?)

AN UNNAMED PARROT played a minor role in People v. Paul (1957) 147 Cal.App.2d 609 (disapproved by In re Culver (1968) 69 Cal.2d 898). Just after 1:00 a.m. on January 3, 1956 Ruston Paul entered a Los Angeles liquor store. The clerk said Paul had a “fierce” look on his face as he walked to the very back of the store which housed the owner’s living quarters. “You can’t go back there,” said the clerk. Cops were summoned. One of them said that Paul “looked like a fairly good robbery suspect.” When questioned Paul answered incoherently. So, the deputy decided—though the logic of his decision is unexplained—the deputy decided to try “slang.” He told Paul, “There is no use shucking and jiving. We know what has been happening around here. Let’s see what’s shaking.” Paul replied, “Let’s dance!” and volunteered, “I was looking for a preacher in a C-47 Cadillac.” Deputies informed Paul that he was under arrest for suspicion of robbery and narcotics. They tried to handcuff him. There was a scuffle. Shots rang out. Paul was wounded. When asked what he had been doing in the back of the store, he answered, “Looking at the parrot” (which the owner kept on the premises). Unclear whether the parrot saw the events at hand, but the bird didn’t testify at Paul’s trial for “escaping from the lawful custody of a deputy.” Guilty as charged.

AS TO BEES. Not exactly the Bates Motel but this Louisiana case is nonetheless right out of a horror movie. Innkeeper held liable for injury caused when a guest slipped and fell in a shower while trying to avoid being stung by bees coming out of a shower head! (Liability based on facts that defendant knew bees were outside motel, had hired beekeeper to remove bees, and failed to warn plaintiff of bees near his room. Brasseaux v. Stand-By Corp. (La.App.1981) 402 So.2d 140, cert. den. (La.1981) 409 So.2d 617. (For some California insect attack law see Brunelle v. Signore (1989) 215 Cal.App.3d 122.)

All Nature seems at work. Slugs leave their lair –
The bees are stirring – birds are on the wing –
...
And I, the while, the sole unbusy thing,
Nor honey make, nor pair, nor build, nor sing.

(Samuel Taylor Coleridge “Work Without Hope”)

☆☆☆☆☆

John S, Spencer
SPENCER LAW FIRM
217 Second St. Sausalito CA 94965
PO Box 2300 Sausalito CA 94966 (mail)
415-331-2400
877-999-5200 (toll free)
johnspencer@spenlaw.com

Friday, December 9, 2011

The Devil Made Me Do It

SPENCER LAW FIRM AUTUMNAL DRIVEL
    “Superfluity Does Not Vitiate!”

Now the serpent was more subtile than any beast of the field which the Lord God has made.  And he said unto the woman, Yea, hath God said, Ye shall not eat of every tree of the garden? (Genesis 3:1)

            “Oh,” cried the farmer, “Why did you bite me after I saved you?”
            “You knew I was a snake when you picked me up,” answered the snake.
                                                                                     (The Farmer and the Snake)

                  “NEVER GIVE A SUCKER AN EVEN BREAK”    
                             (Otis Criblecoblis)
                                                               
On Oct. 4, 1938 a young New Jerseyite named Harry Yadkoe sent W.C. Fields: “some scenes and dialogue for your next picture ‘You Can’t Cheat an Honest Man.’” The film debuted the following year starring Fields (funniest man ever) as Larson E. Whipsnade (with a comedic assist from Edgar Bergen & Charlie McCarthy). Yadkoe was upset about lack of monies for a scene where a woman fainted each time Whipsnade mentioned snakes; booze was then called for and produced, ostensibly to treat the lady, but really just to be imbibed by Whipsnade. A lawsuit ensued. (Yadkoe v. Fields (1944) 66 Cal.App.2d 150) Yadkoe testified that “I sent ... [Fields] this snake story ... [and] some ‘Snake-isms’ [where] ... I have him coming home and ... [he’s] boasting how he conquered the snake, how he beat it wrestling and ... this women hears the mention of snakes and faints, as she faints he gives her a drink of liquor and takes a drink of liquor himself and goes right on talking about snakes and the same thing happens and he takes another drink ...” Young Mr. Yadkoe won eight grand at trial; affirmed on appeal. As he was leaving the courthouse Fields (who averaged three quarts—yes, quarts—of gin a day) undoubtedly uttered (one of his favorite exclamations): “Godfrey Daniels!”

        IN CASE I RUN INTO A SNAKE

Snakes appear quite often in the law as a reason for exercitation of 2nd Amendment rights. Here are two (of many) examples: The gun in my backpack? Only used to shoot snakes, officer, it had nothing to do with my marijuana farm. (United States v. Fernandez (9th Cir. 2008) 526 F.3d 1247) Honestly, officer, I wasn’t in a “gunfighter stance” and I only “put the clip in the weapon because of snakes, rats and  skunks which inhabit the area.” I had no intention of drawing my gun on you, officer, really, believe me ... (People v. Mercer (1980) 113 Cal.App.3d 803)

        HERDING MONGOOSES?

Woods-Leber v. Hyatt Hotels of Puerto Rico, Inc. (1st Cir. 1997) 124 F.3d 43 stemmed from, “an unwanted intrusion by a rabid mongoose into the opulent environs of a posh luxury hotel.” The evil little brute “scurried into the pool area and bit” a sunbathing guest. She endured painful anti-rabies inoculations.  She sued. She lost. Trial court granted, appellate court affirmed, Hyatt’s motion for summary judgment: “[U]ncontradicted evidence indicates that Hyatt had no inkling of the mongoose’s existence, had no reason to suspect that mongooses were lurking nearby ... In the utter absence of any evidence of either knowledge or control ... summary judgment” was appropriate. No one bought plaintiff’s argument, “that a symbiotic relationship existed between Hyatt and the mongoose population in the [nearby] mangrove swamp” or her “suggestion that Hyatt must have benefitted from the mongooses’ natural affinity for devouring snakes and rodents, and that this benefit is legally tantamount to control. The record is devoid of any evidence that mongooses patrolled the perimeters of the hotel’s grounds, performing pest control functions.”

        TASTES LIKE BALD EAGLE

An Internet gourmand claims: Rattlesnake has a very gamey flavor. Almost  a  delicate  seafood-like  taste.
A little like alligator, a little like quail, a little like frog legs. Good eating? Let me know. Mix 1/4 cup olive oil, three large garlic gloves, some Italian spices, peppers, some other stuff. Simmer a (presumably dead) rattlesnake in water and lemon juice for one hour, remove and separate meat from bones. Combine de-boned meat with sauce, simmer for half an hour. Pair with pasta of choice.

☆☆☆☆☆

John S, Spencer
SPENCER LAW FIRM
217 Second St. Sausalito CA 94965
PO Box 2300 Sausalito CA 94966 (mail)
415-331-2400
877-999-5200 (toll free)
johnspencer@spenlaw.com

Wednesday, December 7, 2011

Call Any Vegetable

    SPENCER LAW FIRM FINEM ANNI MMXI
    “Superfluity Does Not Vitiate!”
                                                                                                                                                                    
   ♪♬     Call any vegetable / And the chances are good 
              That the vegetable will respond to you
              Rutabaga, Rutabaga, Rutabaga, Rutabaga, Rutabay-y-y-y-y   ♪♬

    “Call Any Vegetable” by Frank Zappa (Mothers of Invention)

    EAT A VEGETABLE: GO TO JAIL

Death by Spinach. So some subtitled headlines reporting the relatively recent and horrific e-coli mini-epidemic nurtured and spread by tainted leafy greens. Now comes a case which might make you further re-think the (oft touted) positive effects of La Vie V├ęg├ętarienne.

Los Angeles. Mid-winter. Mid-morning. Probation officer Mark Anthony Young was “driving his truck to the gym, wearing workout clothes and enjoying a snack of broccoli and tomato.” Sheriff’s Deputy Richard Wells pulled Young over for not wearing his seatbelt.  Young couldn’t  immediately find his vehicle registration, but soon did, and carried “the registration and his vegetables” to Deputy Well’s motorcycle.

     “[J]ust have a seat in ... [your] truck,”said Wells.
 
     “I don’t feel like sitting in my truck, man,” Young responded.

Young sat down on the “sidewalk curb, and resumed eating his broccoli.”

More words were exchanged, some of which apparently weren’t to the deputy’s liking (or maybe it was just the %#$@&% broccoli), because Deputy Wells pepper sprayed Young, then smacked him around with his baton because he believed Young “was about to throw the broccoli at [him] in order to cause a distraction before assaulting him.”

Young sued claiming excessive force under the Fourth Amendment, false imprisonment and negligence. The deputy prevailed in District Court per summary judgment but the appellate court reversed in part, affirming only as to the false imprisonment claim and remanding the other two. Young  v.  County  of  Los  Angeles (2011) U.S. Court  of Appeals, Ninth Cir. No. 09-56372.

    SNAKE—I MEAN VEGETABLE—OIL ANYONE?
   
Adolphus Hohensee and Donald Kenneth Smith were convicted of conspiracy to cheat and defraud based on proclamations of reputed disease panaceas made during health lectures held in the Continental Room of the San    
Diego Hotel. They asserted that, “a twenty-eight day diet of onion and water will eliminate arthritis [and] hardening of the arteries ... a diet of apple juice and olive oil will eliminate gall stones; ‘Elixir of the Gods’   (honey) will eliminate arthritis, cleanse the heart of moucous [sic] and pus ...”  They appealed. They lost. People v. Hohensee (1967) 251 Cal.App.2d 193.

    YOU SAY TOE-MAY-TOE, I SAY TOE-MAW-TOE

Almost a 120 years ago the United States Supreme Court addressed the age old question of whether a tomato is a vegetable or a fruit; and answered: “Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans, and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery, and lettuce, usually served at dinner in, with, or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert.” Nix v. Hedden (1893) 149 U.S. 304.

    IT'S HARD TO MAKE VEGGIES INTRIGUING, BUT

Richard Brautigan (probably best known for Trout Fishing in America) gave it a good shot —       


            Three crates of Private Eye Lettuce,
            the name and drawing of a detective
            with magnifying glass on the sides
            of the crates of lettuce,
            form a great cross in man’s imagination
            and his desire to name
            the objects of this world
            I think I’ll call this place Golgatha
            and have some salad for dinner.

        ☆☆☆☆☆

        John S. Spencer
        SPENCER LAW FIRM
        217 Second St. Sausalito CA 94965
        PO Box 2300 Sausalito CA 94966 (mail)
        415-331-2400  
        877-999-5200 (toll free)
        johnspencer@spenlaw.com