295 P. 898 | Cal. Ct. App. | 1931
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *220 The defendants were tried jointly on an indictment framed in four counts, the first of which charged conspiracy to ask and receive bribes, the other three charging completed acts of bribery. During the course of the trial the offense charged in count three was dismissed and the jury returned its verdict finding the four defendants guilty on the first count and not guilty on counts two and four. From the judgment on the verdict and from the orders denying their motions for a new trial the four defendants appeal upon a typewritten record. Each defendant was represented by individual counsel at the trial and each has filed separate briefs on this appeal requesting that any point raised by others be available to him. Upon some of the issues presented on the appeal the legal considerations are applicable to all appellants, but in most instances the circumstances are such that each appellant must be treated separately.
The story of the conspiracy originates in the testimony of Fred Smith, a co-conspirator. In the general election of 1926 a bitter contest was waged in Alameda County between B.F. Becker and Barnett, the incumbent, for office of sheriff in which Becker was successful. In January, 1927, Becker, *221 who had been chief of police of the city of Piedmont, brought with him to the sheriff's office the defendant John L. Davis, who had been associated with him in the Piedmont office. Davis was made a deputy sheriff. Collier, who had occupied that position for many years under the former sheriff, was retained. Shurtleff, who had formerly been a federal prohibition officer, was appointed by Becker as chief criminal deputy and Davis and Collier were assigned to work under him as a "raiding squad" to enforce the provisions of the Wright Act (Stats. 1921, p. 79) relating to the manufacture and sale of intoxicating liquor. The defendant Gardella was a confessed "bootlegger" operating in the eastern section of Alameda County.
Fred Smith met Becker and Davis while they were in the Piedmont office and became very active in Becker's campaign for sheriff in the fall of 1926. Soon after Becker assumed the office of sheriff in January, 1927, Davis sought out Smith and proposed his plan to force the bootleggers of the county to pay tribute for protection against arrest for violation of the prohibition law. In the latter part of January, 1927, Davis, accompanied by defendant Collier, appeared at Smith's place of business in San Leandro and, in the presence of Collier, told Smith that there were several bootlegging places operating in Livermore and vicinity which would "have to lay it on the line or get knocked off", and proposed that the three drive into Livermore, where he, Davis, would introduce Smith to the Gardellas. Davis then drove Smith and Collier to the Gardellas' bootlegging establishment, where all had drinks of liquor and where Davis introduced Smith as "the closest man in the county to the sheriff" and "the man to talk business to with regard to protection". Gardella replied that he had not been active in Becker's campaign; that he had been a "Barnett man", "but that if it was going to be necessary to pay for protection, if the business would afford it, why, he would do so". Gardella then said that under present conditions he could probably pay around $75 a month if he were assured of proper protection. Smith assured him that "that was all right", whereupon Collier left the party, saying that he would wait for them out in the car. Davis then went into the "barroom" while Gardella procured $75, which he paid to Smith. These two then joined Davis, who then said to Gardella: *222 "If you got any other of your friends down here who are all right we can arrange the same thing for them." Gardella replied: "All right, I will have a talk with them." He, Gardella, then mentioned Croce, Duarte, Valponi and another as bootleggers who could be expected to pay monthly sums for protection and the rate to be charged each was discussed among the three. They then agreed that Smith should return to Gardella in two or three days to receive the money which Gardella promised to collect from those mentioned. Davis and Smith then joined Collier in the car and Smith divided the money he had received from Gardella — $25 to Davis, $25 to Collier and $25 to himself.
A few days later, according to the arrangement made at the time, Smith returned to Gardella and received two envelopes, one containing $50, the other $25, which Gardella told him had been collected from two of the bootleggers and which Smith divided with Collier and Davis. From this time on to the early part of August, 1927, Smith continued the collection of monthly tribute from those engaged in the violation of the Prohibition Act, either in the operation of stills or in the transportation and sale of illicit liquor. These sums were divided one-quarter to Davis, one-quarter to Collier, one-quarter to Smith, and the remainder was held by Smith as a "trust fund" for campaign purposes, out of which he testified he paid a portion to Shurtleff.
During all this time the district attorney of the county maintained a staff of special detectives engaged in investigating violations of the Prohibition Act and the practice of the two offices was that when the district attorney's staff discovered violations of the act search-warrants were delivered to the sheriff's office for service. These warrants came into the hands of Shurtleff, who handed them to Collier and Davis for service. From the testimony of Collier and Davis it appears that during the period in question they found liquor and made arrests in ninety per cent of the raids made by them, but that they were unsuccessful in their raids upon the bootleggers in the vicinity of Livermore because they were always "tipped off" before they arrived. It was the theory of the state throughout the trial that this was the "protection" given to those who paid the conspirators and that information was always given in advance of a raid upon their friends, this information coming directly from *223 Davis before he and Collier left the sheriff's office or coming to the bootlegger from Smith through information furnished him by Davis, Collier or Shurtleff.
[1] The foregoing statement of facts, which is taken mainly from the testimony of Smith, is sufficient, if corroborated in the particulars required by law, to involve all four defendants in the conspiracy charged. It is apparent from this evidence that the conspiracy was formed in the latter part of January, 1927, to ask and receive bribes for the purposes alleged in the indictment and that Davis, Collier, Smith and Gardella were the instigators of the conspiracy. The precise date when Shurtleff joined in the conspiracy does not appear. Hence, aside from the matter of corroboration, which will be treated later, the evidence is legally sufficient to sustain the verdict unless the testimony of Smith was incompetent for the reasons assigned by the appellant Collier.
[2] The point raised by this appellant is that Smith, being an accomplice, was incompetent to testify regarding any of the agreements or conversations had between his co-conspirators untilafter the conspiracy was proved — that is to say, that evidence of these conversations was inadmissible to prove the corpusdelicti. In this connection the appellant relies on subdivision 6 of section 1870 of the Code of Civil Procedure, which provides that "After the proof of a conspiracy the act or declaration of a conspirator" may be given in evidence "against his co-conspirator". From this it is argued that no evidence of the act or declaration of a conspirator can be received for the purpose of proving the conspiracy. The argument is based on what we deem to be a misconception of the meaning of the code and upon disconnected excerpts from decisions where the language has not been carefully chosen. The code section is an exception to the well-known hearsay rule which is stated in section
If this were not so let us see to what limits appellants' argument would carry us. A, B and C are charged with conspiracy to commit murder. A carries out the act and numerous eye-witnesses are called to testify concerning the acts of A in the commission of the homicide. Certainly their testimony would not be barred under this section because A is charged as a conspirator with B and C because such testimony would cover facts of the witnesses' own knowledge within the meaning of section
The application of the rule to the instant case seems plain in so far as it relates to appellants Collier and Davis. They *225
were both sheriff's deputies assigned to the enforcement of the prohibition law. The conspiracy charged to them was their agreement to refrain from making raids upon violators of that law until information had been given permitting the destruction of evidence. In the formation of the conspiracy in January, 1927, no act or declaration was required from these two — all that was needed, and all that was done — was the lending of their presence in the company of Smith, who assumed the role of soliciting and collecting the bribe funds. This was the conspiracy which the prosecution sought to prove at that time — the res gestae was the conversations between Smith and Gardella in the presence of Davis and Collier and it is of no moment that, before the money was passed, Collier stepped outside. If he had then notified the others that he would not be a party to the transaction, or had later refused to co-operate, he might now complain, but his subsequent actions show a full acquiescence in the arrangements made by the others. Hence, these conversations were not hearsay under any possible theory, and were admissible against all the co-conspirators even though it might be said that the conspiracy was not "proved" until later on in the trial. The order of proof is not material. (People v. Stokes,
[3] Neither Collier nor Davis denied their association with Smith and Gardella. They denied that they received any bribes from them and explained that they "worked" with Smith under instructions from the head of the office. We accordingly hold that Smith's testimony was admissible as tending to establish the formation of the conspiracy alleged in the indictment, and was competent proof of the acts and conduct of appellants Collier and Davis which made it possible for Smith to approach Gardella in the role he assumed as one of the conspirators. Whether this testimony had sufficient corroboration so that the "fact" of the conspiracy was proved is a question to be treated later.
[4] Much is said in the brief of the appellant Collier regarding the bad reputation of Smith for truth, honesty and integrity. From this it is argued that his testimony should not be believed, but that, of course, was for the jury to decide. It is significant, however, that notwithstanding the reputation of this witness these two deputies associated with him constantly, calling at his home at least twice a *226 week over a period of six months and frequently, with their wives and other members of their families, joining Smith and his wife in drinking parties at the bootlegging places named by Smith as having paid for protection.
This appellant also urges the "improbability" of Smith's story of the conspiracy because Collier had met Smith but three weeks before the time testified to. But it does not appear how long Collier had known Davis and it is apparent from the record that Davis was the instigator of the entire plan and brought Collier to Smith with the proposal that Smith act as the go-between to make the collections from the bootleggers, leaving the deputies in the clear to deal with Smith alone. [5] We understand that an appellate court can reject the positive testimony of a witness only when that testimony is "inherently improbable". It is not sufficient that the testimony may disclose circumstances which are unusual. Where the testimony is such that within the knowledge of reasonable men it cannot be true the appellate court might assume that knowledge and hold the testimony legally insufficient, but to do so the court must act on what is equivalent to judicial notice. We are not advised of any precedent which would sanction our taking judicial knowledge of the extent of the acquaintance which must be had with the modern bootlegger before he could be asked to pay for protection. All the appellants devote much time and space in their attacks upon the credibility of the witness Smith, and lest they feel that their arguments have gone unnoticed let it be said here that the appellate court does not sit as a jury to determine the issues of fact upon the credibility of the testimony of the witnesses but, when the attack is made on these grounds, it is necessary for the appellant to go further and show that the testimony which we are asked to reject is inherently improbable or that it was incompetent, or for some other reason, not legal evidence upon which the jury could rely.
[6] The appellant Collier argues that the evidence was insufficient to prove an overt act. Ten overt acts are alleged in the indictment. Number 1 is merely a repetition of the acts leading to the formation of the conspiracy. Number 2 covers the same matters alleged in count three of the indictment which was dismissed. Numbers 4 and 9 cover the same matters alleged in counts two and four of *227 the indictment upon which the appellants were acquitted. The remaining charges covered specific acts of bribery similar to those alleged in counts two and four but involving different bootleggers. From the fact that count three was dismissed and from the fact that the jury acquitted on counts two and four it is argued that it is not unreasonable to say that "had the prosecution seen fit to mold each of these overt acts (3, 5, 6, 7, 8 and 19) into separate charges of bribery as they did with three of them, the jury would have acquitted the defendants on them also". This is a conjecture in which we are not permitted to indulge. Counts two and four were specific charges of bribery. Evidence of the bribery came from the testimony of Smith who was an accomplice. Hence, his testimony on the specific act of bribery required corroboration. But, on the first count for conspiracy, it was not necessary that the testimony of the accomplice be corroborated in every particular. Thus the jury may have been satisfied with the testimony of Smith on some one of the overt acts, other than Numbers 2, 4 and 9, and may not have been satisfied that this testimony was corroborated on the specific acts alleged in counts two, three and four. The acquittal of appellants on these two counts can mean nothing more than that the jury did not believe the evidence sufficient to convict, but such acquittal can have no bearing upon the other matters alleged, and we must assume in support of the verdict that the jury found them guilty of one of the alleged overt acts, and that is all that is needed.
[7] The heavy attack of all the appellants is based on the common ground that the evidence of corroboration is insufficient. In these attacks the appellants find much comfort in the recent decisions of the appellate courts, particularly People v.Davis,
The foregoing quotation was quoted with approval by the Supreme Court in People v. Davis, supra, with the explanation that it was not intended to hold that the corroborating evidence was sufficient if it merely raises a suspicion of defendant's guilt. But, though evidence which merely creates a suspicion is insufficient because of the statutory presumption of innocence of crime, we must not overlook the weight of an inference which is "a deduction which the reason of the jury makes from the facts proved" (Code Civ. Proc., sec. 1958). Hence, when the question of the sufficiency of the corroborating evidence is before the appellate court we cannot approach it in the same manner the jury would do, but we must assume that the jury drew all inferences from the facts proved as "the reason of the jury" might sanction. If, therefore, facts are in evidence which would reasonably support an inference that defendant was involved in the conspiracy alleged and the jury so found it is not the province of the appellate court to weigh the evidence or to determine in its mind what weight it would give to such evidence.
The code section expressly states that the corroborating evidence "shall tend to connect the defendant with the commission of the offense". This does not mean that such evidence shall connect the defendant beyond all reasonable doubt. Such is the rule of People v. Martin,
With this in view and bearing in mind that the alleged conspiracy consisted of the agreement to solicit bribes in consideration for the advancing of information of proposed raids so that the bribe givers might avoid arrest for violations of the law, we may examine the evidence of acts and declarations of the alleged conspirators to see if any of this evidence would tend to connect the appellants with the conspiracy.
[9] Addressing ourselves to the appeals of Collier and Davis, and referring to the issue of corroboration of accomplice Smith, we find in the evidence that these two appellants throughout the period of the alleged conspiracy called at Smith's home upon an average of twice a week and that frequently upon these calls they each received from Smith an envelope which Smith testified contained money received from bootleggers according to their prior agreement and which these appellants testified contained diagrams of stills operating in the county; that Mrs. Smith testified that on several occasions she saw her husband assorting money and placing it in separate envelopes immediately before Collier and Davis called, and that on one occasion she saw her husband deliver an envelope to each of these appellants; the witnesses Van Noy and Trevett testified that they saw Smith assorting money upon his library table and placing it in separate envelopes a short time before Collier and Davis called, and that Smith, Collier and Davis then went into a bedroom where they remained for five or ten minutes. The only explanation of these transactions given by the appellants was that upon those occasions Smith gave them diagrams of stills, but they gave no explanation why a separate envelope should be given to each while both were working together or why they had not at any time during this entire period of six months delivered any of this information to their superior officers but had on each occasion destroyed the location maps which they testified Smith had given them nor did they explain why during this entire period no still had been raided by them and no arrests made as a result of this information. By their denial that they had received any money from Smith on any of these *231
occasions the case differs from People v. Davis, supra, where the court held that the testimony that money had been seen to pass through the hands of the accomplice was insufficient to corroborate his testimony because it should be presumed that the money was delivered for a legitimate rather than for a criminal purpose. From the weak and unsatisfactory explanations of these appellants as to the contents of the envelopes the jury was warranted in inferring that money did pass as Smith and his wife testified, and this inference would corroborate the testimony of Smith in that respect. Then bearing in mind that the theory of the prosecution was that the object of the conspiracy was that the conspirators would either fail to arrest or would give to the bribe givers advanced information of proposed raids so that all criminal evidence could be destroyed we find the testimony of Mrs. Walker to the effect that habitually before these appellants started on a raid with a search-warrant procured by the district attorney's office, Collier and Davis would lag behind the other officers and the latter would put in a telephone call which was usually "`make it at 7 o'clock'; `it will be now' or the like". This information was generally conveyed to Smith who in turn relayed it to the party to be raided and his testimony that he received and conveyed this information was corroborated by other evidence. The explanation of the appellants of this testimony is nothing more than a complete denial, and here again the trial jury was called upon to weigh the evidence and if the jury believed the testimony of Mrs. Walker and these other witnesses and disbelieved the testimony of the appellants in this respect it follows, of course, that Smith's testimony of these transactions was fully corroborated. Aside from the testimony relating to what happened in the sheriff's office as to "tip offs" of these raids we find the direct evidence coming from Mrs. Smith that in the latter part of July she received a telephone call from Davis asking if her husband was in, and that upon being informed that he was not, Davis asked her to get in touch with her husband and tell him to telephone the Irvington Hotel and warn them to close up as the place was to be raided that night. It is also in the evidence that Mrs. Smith got in touch with her husband and he informed her that he could not telephone the hotel from where he was located, asked *232
her to do so, that she did phone the hotel and that on the same night the place was raided and no evidence of the sale or possession of liquor found. It is also in evidence, coming from the testimony of Collier and Davis, that during this period they made numerous raids upon bootlegging establishments in the eastern portion of Alameda County, and that in ninety per cent of such raids they found liquor and made arrests. It is significant, however, that during the entire period of the alleged conspiracy none of the bootleggers named by Smith as having paid for protection was raided excepting in one instance in which a federal raid was made against Schenone and another when a federal raid was made against Gardella, at which time he had been given advanced information and had destroyed all evidence of the sale or possession of liquor. In addition to this, there is the testimony of Pisani and Santucci of their conversations with Ormsby, an attorney at law, who urged the witnesses to construct and operate a still and assured them in the presence of Davis that they would be fully protected from the sheriff's office by the payment of a monthly sum for that purpose, and the testimony of Pisani as to the association of Collier with Ormsby in this enterprise. And then we find the undisputed evidence of the association of Collier and Davis with Smith and Ormsby throughout this entire period; their frequent gatherings with their respective families in bootlegging establishments where liquor was being drunk, these places all being on Smith's list of the protected. Aside from this direct evidence (which is but a small portion of the corroborating testimony relied upon by the state) the respondent urges the circumstance that when Collier and Davis were called before the grand jury when it was making its investigation of the alleged conspiracy both were informed of the accusations made against them by Smith and neither denied the accusations but both refused to testify upon the ground that their testimony might tend to incriminate them. The foregoing statement of the evidence is sufficient to corroborate the testimony of Smith as to the formation of the alleged conspiracy, and is such "as shall tend to connect the defendant with the commission of the offense", and it is unnecessary to outline the mass of other evidence which was offered for this purpose. *233
[10] It is strenuously argued by the appellants that we may not take the testimony of Mrs. Smith as corroborative of that of her husband because in relaying the "tip off" message to the Irvington Hotel she became an accomplice, but to hold her as an accomplice it would be necessary to hold that she was a party to the offense charged, which was a conspiracy to ask and receive bribes for certain purposes. But it does not appear that she had any knowledge of the conspiracy nor any knowledge of the relations between the conspirators or the proprietor of the Irvington Hotel. Her action in conveying the message to the hotel upon the request of her husband was consistent with an innocent obedience of her husband's commands, and though it is possible that the entire evidence may have been sufficient to warrant the jury in inferring an evil motive on the part of Mrs. Smith, such motive was certainly not presumed, and, therefore, the question of whether she was an accomplice was a fact to be left to the jury and not a question of law to be determined by the trial judge. [11] In this connection the appellants attack the refusal of the trial judge to give their proposed instruction advising the jury that it must consider Mrs. Smith as an accomplice, and likewise attack the instructions which the trial judge gave to the jury defining an accomplice and advising the jury what was sufficient corroborative evidence of the testimony of an accomplice. There was no error in either respect. (People
v. Ward,
[12] The appellant Collier criticises the action of the trial court in admitting the testimony of Smith relating to conversations had with Smith, Davis and Gardella in the absence of Collier. This testimony all related to matters occurring after the formation of the conspiracy and was clearly admissible under section 1870 of the Code of Civil Procedure, as interpreted in the cases heretofore cited. Smith's testimony relating to his conversations with Valponi, Croce, Peyser, Schenone and others who were maintaining bootlegging establishments were all evidence of the transactions of a co-conspirator in furtherance of the purposes of the conspiracy, and this testimony of Smith, like his testimony relating to the payments made by various bootleggers and his division of the proceeds among his co-conspirators, was *234 properly admitted. [13] Likewise there was no error in admitting the testimony of Van Noy, Trevett and Mrs. Smith relating to Smith's division of the money in his home prior to the visits of Collier and Davis, because this was evidence of "an act" of one of the conspirators performed after the formation of the conspiracy.
[14] Considerable space is devoted to an attack upon the admission of the testimony of Pisani regarding his promise to pay to Ormsby $3,000 a month for protection in the operation of an illicit still, such protection being assured him by Ormsby in the presence of Davis. Of a similar character are the objections to the testimony of Tognotti, Santucci and Roggi. The objections are two: That these transactions were not had in the presence of all the other alleged conspirators, and that they were evidence of separate and distinct offenses. The first objection is without merit as we have already said. [15] As to the second objection the rule seems to be fully settled. In People v. Arnold,
[16] The testimony of similar transactions occurring in the latter part of August and in early September of the year 1927 was not inadmissible under the rule excluding acts and declarations of a co-conspirator after the completion of the conspiracy. The indictment alleged the period of time of the conspiracy as from February 1, 1927, to August 20, 1927, but this was merely an approximation and was not a definite time limiting the period of the conspiracy. There was no evidence that the conspiracy ended precisely on August 20th, and, from the nature of the case, this was not such a conspiracy as would be "completed" by a definite overt act such as murder or robbery. Hence, evidence of transactions occurring within a few weeks following August 20th was not evidence of a separate isolated act or declaration of one of the conspirators occurring subsequent to the end or the "objective" of the conspiracy, within the rule of People v.Oldham,
[17] The application of the rule in the present case is that it was always the theory of the prosecution that the alleged conspirators were operating in the eastern section of Alameda County as a portion of a county-wide conspiracy headed by the sheriff of the county and involving many of his deputies and others officially connected with his office for the general purpose of collecting tribute from all those engaged in any unlawful business conducted in the county. Thus having proved the conspiracy alleged in the indictment it was competent for the state to offer in corroboration thereof the activities of Davis, Collier, Smith and others as evidence of the ordinary and probable effect of the common design of the conspiracy alleged.
[18] The question involved here is not whether this testimony was competent because the general rule is that evidence of the separate acts and declarations of one co-conspirator is admissible against all the other conspirators after the conspiracy has been established because each is criminally responsible for the acts of his confederates committed in furtherance of the common design. (People v. Kauffman,
[21] Objection is made to the admission of evidence relating to transactions between Smith and Sheriff Becker, Parker and Davis after Smith had fled to Los Angeles. This testimony was presumably offered for the purpose of corroborating Smith's testimony as to his criminal association with the sheriff's office of Alameda County. It was all stricken out and the jury was instructed to disregard it. There was nothing in this testimony that was prejudicial to *238
any of the appellants except as to appellant Davis, and as to him it was properly admitted. If any error occurred as to the other appellants through the admission of this testimony that error was cured by the order striking out the instruction to the jury to disregard it. Though the appellant Collier insists that the evidence was improperly admitted he does not show in what respect it was in any way prejudicial to him. This is not a case such asPeople v. Anthony,
[22] These two appellants complain of the ruling permitting the evidence in rebuttal of the witness Barnes. Appellant Collier on cross-examination had been asked if he had been served intoxicating liquor in the Newark Hotel during the period of the alleged conspiracy, and answered, no. Barnes, who was a cook at the Newark, testified that both Collier and Davis had been served drinks in the hotel during that time and that, on the occasions when they raided the place, the proprietor removed the liquor and slot-machine a short time before the raid occurred. The appellants insist that the impeachment was on a collateral matter. But it was not. The evidence disclosed that these two deputies, whose special duty it was to make arrests of those engaged in the illegal sale of liquor, frequented one of the bootlegging establishments which the witness Smith testified was on his list and that no arrests were made though violations of the law were known to these deputies. This testimony tended to corroborate the witness Smith and was relevant to that issue.
In so far as the appellants Collier and Davis are concerned we find no error in the record and the judgment and order as to them should be affirmed.
[23] Little need be said regarding the case of appellant Gardella, inasmuch as the case must be reversed as to him because of the lack of corroborating evidence and the general principles and the questions of law which will arise on a retrial are not different from the general principles which have heretofore been discussed. In support of the judgment the respondent cites as corroborating evidence the testimony of Pauline Walker that Gardella was frequently in and about the sheriff's office, having conversations with *239 Collier, Davis and Sheriff Becker, and that on one occasion she telephoned him asking him why he had a truck-load of liquor in front of his place, and that he told her not to worry because he was paying plenty of protection to the sheriff's office. The respondent cites as further corroborating testimony, this appellant's admission that he was raided by Collier and Stark of the sheriff's office but had received advanced information and had consequently destroyed all evidence; his testimony that Smith had tried to persuade him to buy stock in a paving company which was being organized by Parker who was a friend and associate of the sheriff; and the testimony of Mrs. Smith that she and her husband, in company with Becker and Parker and their respective wives, had been entertained by Gardella at which time intoxicating liquor was served. We are unable to find in this testimony any evidence which measures up to the requirements of the cases heretofore discussed, or that the testimony does more than create a suspicion of guilt of this appellant. For this reason the judgment and order as to him must be reversed.
For the reasons given it is ordered that the judgment and order in so far as they relate to appellants Collier and Davis are affirmed, and in so far as they relate to the appellants Shurtleff and Gardella, they are reversed with directions for a new trial.
Sturtevant, J., and Burroughs, J., pro tem., concurred.
Petitions for a rehearing of this cause were granted by the District Court of Appeal on February 4, 1931, as to defendant Shurtleff, and denied as to the other defendant, and the following opinion then rendered thereon:
THE COURT.
In his petition for a rehearing the appellant Collier finds fault with that portion of the opinion which relates to the admission in evidence of the testimony of the accomplice Smith relating to the acts and conversations of his co-conspirators leading to the formation of the conspiracy. He argues that what we have said in the opinion is contrary to the rule of People v.Irwin,
[24] Now it must be apparent that when an agreement is not in writing parol evidence is admissible to prove its contents. And, when the agreement is in parol, evidence of the conversations of the parties tending to disclose the agreement made is evidence of the very fact to be proved and hence is evidence of the resgestae. Hence, when the conspiracy charged in the indictment is an "agreement" to do or not to do a certain act evidence of the conversations and acts of the conspirators which constitute the agreement is admissible to prove the agreement. [25] Thus, when, as a part of the agreement, one or more of the conspirators undertakes to ask for a bribe, one or more *241 agrees to accept a bribe, one or more agrees to do or not to do some act for the purpose of effectuating the compact, and one or more of the conspirators gives his assent to the compact either by express words or by actions from which such assent might be implied, evidence of such facts, when the agreement is in parol, is competent evidence of the acts or declarations which form "a part of the transaction" which is in dispute, and, as such is admissible under the express provisions of section 1850 of the Code of Civil Procedure. [26] On the other hand, if a witness were asked to relate a conversation which he had had with one of the alleged conspirators such testimony would be hearsay and would not be admissible under section 1870, subdivision 6 of the Code of Civil Procedure, until after the conspiracy had been proved, and, by thus permitting evidence of the acts and declarations of a conspirator against his co-conspirator, this subdivision becomes an enlargement of rather than a limitation upon the ordinary hearsay rule.