213 P. 61 | Cal. Ct. App. | 1923
The defendants were convicted of conspiracy and prosecute this appeal from the judgment of conviction and the order denying their motion for a new trial. The indictment charges that the defendants conspired to bribe one of the supervisors of El Dorado County to influence his vote upon the question of adopting a prohibition ordinance, and that they, "in pursuance of said conspiracy and to effect the object thereof, did each contribute . . . the sum of twenty dollars . . . and did solicit money from one E. J. Barrett and from other persons to the grand jury unknown; and . . . did collect and receive . . . the sum of twenty dollars . . . from one John Zugnoni."
The defendant Beck was the proprietor of a hotel and the defendant Calvert of the Klub Cafe in Placerville. Barrett and Zugnoni were in business in Camino, a few miles above Placerville, and Seymour Hill, a witness at the trial, conducted a business at El Dorado, a few miles below. It is to be inferred from the evidence that these five persons sold soft drinks at their respective places of business. In November, 1921, the board of supervisors had under consideration the adoption of an ordinance prohibiting the unlawful manufacture, possession, transportation, and sale of intoxicating liquors. The proposed ordinance was defeated by a majority vote of the supervisors on the 8th of November. Appellants' main contention is that the evidence is insufficient to prove such conspiracy. Some of the evidence was admitted generally as bearing upon the charge against both defendants, some parts thereof were expressly limited by the prosecuting attorney and the court to the charge against Beck and other parts to that against Calvert. The testimony will be stated accordingly under three heads.
Zugnoni testified that some time prior to November 11th Beck called at his place of business and asked for money; that he did not remember for what purpose Beck desired the money, but thought it was for a bill which Mrs. Zugnoni *420 owed; that Beck did not state the amount he desired; that he, Zugnoni, did not have the money at the time but paid Beck twenty dollars November 11th. Zugnoni was apparently an unwilling witness for the prosecution. He testified that his memory was very poor and most of his answers were: "I don't remember." It was for the jury to determine whether the witness was deficient in memory or willfully evasive.
If it be conceded that the statements of Beck and Calvert, as related by Barrett and Hill, were admissible as evidence against both defendants, on the theory that they were statements made in furtherance of the alleged conspiracy, such evidence can be considered only with relation to the charge against the defendant to whose case it was expressly limited, because the other defendant might possibly have been able to disprove such testimony if it had been admitted as evidence against him. Keeping in mind such limitation, it is fairly to be inferred from the evidence of Calvert, which was not limited, that on the 5th of November the defendants agreed to raise money for the defeat of the proposed ordinance, either by influencing the supervisors to vote against its adoption or by bringing about a referendum in case of its passage. On the 7th of November they both went out to raise the necessary funds. The fact that they solicited money prior to the time at which the supervisors were to *422
vote upon the ordinance, at a time when they did not know whether a referendum would be necessary, is a circumstance to be considered in determining what use they intended to make of the money. Zugnoni's testimony, which was not limited, shows that Beck solicited and was paid twenty dollars for some purpose and, still keeping in mind the limitations upon the testimony, the jury was warranted in believing from the evidence admitted against either defendant that this money was solicited and received for the purpose of carrying out the agreement of November 5th. In view of the manner of his testifying and the character of his testimony, the jury may well have believed Zugnoni's statements as to the solicitation and payment of the money and refused to accept his statement that he thought the money was given in payment of a bill which his wife owed to Beck. Then particularly as to the charge against Beck, the testimony of Barrett is sufficient to show that Beck was endeavoring to raise money to bribe one of the supervisors. Calvert's interview with Hill and Barrett and his admissions to the sheriff are amply sufficient to show that he was endeavoring to accomplish the same purpose. It is true that Calvert denied the incriminating statements attributed to him, but this court has to do only with the sufficiency of the evidence, not its weight. The criminal purpose of the defendants was not proved by direct evidence, but may be inferred from their acts and declarations. In cases such as this the prosecution is usually under the necessity of relying on the testimony of unwilling witnesses for a conviction. As said in Jenkins v. Commonwealth,
[1] Section
[2] Appellant contends that the court abused its discretion in permitting proof of declarations by defendants without first requiring independent evidence of the alleged conspiracy. "Generally conspiracies cannot be proved as an independent fact, such as the execution of a promissory note, but are shown from circumstances, some testified to by one witness and others by other witnesses. It is largely in the discretion of the court as to how much evidence of the existence of the conspiracy shall be required before receiving evidence of the acts and declarations of one of the alleged conspirators in the absence of the other." (People v. Daniels,
[3] In answer to a question whether Beck had asked him to contribute money, the witness Barrett replied: "He told me it would take twenty dollars apiece and I took it for granted he was asking me for that amount, but the exact words he used, I can't relate." Counsel for defendants moved the court to strike out the answer. The motion was denied. The motion was directed to the answer in its entirety. The only objectionable part of the answer at most is the statement, "I took it for granted he was asking me for that amount." The motion to strike out should have been directed specifically to the objectionable part since the other parts were entitled to stand. (People v. Ho Kim You,
The judgment and order are affirmed.
Burnett, J., and Hart, J., concurred. *425
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 12, 1923.
All the Justices concurred.