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District Court of Appeal, Second District, Division 1, California.


Cr. 3228

Decided: April 11, 1940

Morris Lavine, of Los Angeles, for appellant. Earl Warren, Atty. Gen., and Eugene M. Elson, Deputy Atty. Gen., for respondent.

Appellant herein, Erwin P. Werner, an attorney at law, and his wife, Helen M. Werner, were charged in an indictment returned by the grand jury in count I thereof with soliciting one William McNeil, on or about August 27, 1937, to offer and join in the offer of a bribe to William E. Simpson, chief deputy district attorney of Los Angeles County, to corruptly influence the latter in respect to the prosecution of McNeil on charges of grand theft. In the second count, appellant and his wife were charged with the crime of attempted grand theft of $2,500 from said William McNeil.

The first trial ended in a disagreement of the jury. A second trial by jury was had, at which time appellants were convicted on both counts. On appeal, however, the District Court of Appeal of the Fourth District reversed the convictions as to each defendant on the ground that the two counts were inconsistent and that a verdict finding the defendants guilty on one count was necessarily inconsistent with a finding of guilt on the other count. See People v. Werner, 29 Cal.App.2d 126, 84 P.2d 168.

The Supreme Court denied a hearing and the cause was remanded for a new trial, resulting in the instant case, in which the jury returned verdicts finding defendant Werner and his wife not guilty as charged in count I (solicitation of a bribe), but guilty as charged in count II (attempted grand theft). Each of the defendants made a motion for a new trial, which motions were denied. Oral notice of appeal was given on behalf of both defendants; however, the appeal of defendant Helen M. Werner was subsequently dismissed.

Defendant Erwin P. Werner appeals from the order denying his motion for a new trial.

The facts as revealed by the record, relating them in chronological order as far as possible, are substantially as follows: Some time in the year 1933, said William McNeil became acquainted with a Mrs. Mabel Edith Bovell. The latter made her home with a Mr. and Mrs. Edward Bovshover, and, in fact, Mr. Bovshover was retained by Mrs. Bovell as her business manager and adviser. Commencing in 1934, and continuing until 1936, McNeil engaged in certain business transactions with Mrs. Bovell, during the course of which she delivered to McNeil the sum of $155,000 in cash and bonds.

Mrs. Bovell subsequently made certain efforts to compel McNeil to return the money, and, in the early part of the year 1936, employed one Albert G. Bergman, an attorney, to make further demands upon McNeil. In connection with this effort on the part of Mrs. Bovell, McNeil was represented by Mr. Werner. Thereafter, in the fall of 1936, McNeil delivered to Mrs. Bovell, through Mr. Werner, two trust deeds on a ranch of 520 acres located in Merced, California, which trust deeds were in the amounts of $14,000 and $2,000 respectively. Some time in April of 1937, according to Mr. Werner's testimony, Mr. Bovshover informed him that they were about to lose the ranch, and appellant thereupon filed an application, under his permit, with the Veterans' Welfare Board of the State of California requesting them to purchase the ranch, which they did. The board in turn executed a contract upon the terms of which Mr. Werner purchased the property from them.

On April 2, 1937, Mr. Werner filed a civil action against Mr. and Mrs. McNeil to recover the sum of $7,500 claimed by him as attorney's fees in connection with the Bovell settlement. McNeil disputed the claim and employed Paul Shapiro as an attorney to represent him in this action. It appears from the record that the institution of this suit by Mr. Werner, in which Mrs. McNeil was named as a party defendant, was the cause of some trouble between Mr. and Mrs. McNeil, and that McNeil harbored a feeling of resentment toward appellant by reason thereof.

In the early part of 1937 McNeil was visited by members of the Los Angeles Police Department in connection with Mrs. Bovell's representations. Several meetings were held between McNeil, the so-called bunco detail of the Los Angeles Police Department, and the district attorney's office, and on July 6, 1937, a criminal complaint was filed against McNeil by the district attorney's office, charging him with one count of grand theft in connection with the Bovell matter and six counts of grand theft relating to certain other transactions with a Mrs. Almand. A preliminary examination was held on August 2, 1937, at which time McNeil was represented by attorney Earl Newmire. At the conclusion of the examination McNeil was bound over to the superior court for trial on seven counts of grand theft.

McNeil and appellant, Erwin P. Werner, and Mrs. Werner, thereafter met and held several conferences, during the course of which certain alleged proposals were made, which later formed the basis of this action.

Mr. Paul Shapiro, McNeil's attorney in the civil action filed by Mr. Werner for attorney's fees, testified that some four or five days prior to, and also a few days after, McNeil's preliminary examination in the criminal action, Mr. Werner called him on the telephone and said that he had tried to contact McNeil and had been unsuccessful and further asserted, in substance, “You know, I can have that case of the People against McNeil dismissed.” Mr. Shapiro informed Mr. Werner that Mr. Newmire was representing McNeil in the matter and that Mr. Werner should call Mr. Newmire. Mr. Shapiro then informed McNeil of his conversation with appellant.

Mr. Earl Newmire, the attorney for McNeil in the criminal action, likewise testified that several days prior to the preliminary examination of McNeil, Mr. Werner called him by telephone and stated that he (Werner) would like to get in touch with McNeil, whom he had been unable to contact; that Mr. Werner then asserted, in substance, that he “wanted to get in touch with Mac because he was in a position to square the beef for Mac”. Mr. Newmire informed Mr. Werner that he would communicate with McNeil, and within a day or two thereafter Mr. Newmire did in fact repeat the conversation to McNeil. Some three or four days after the preliminary examination of McNeil, Mr. Werner again called Mr. Newmire and stated that he was returning to Merced that same evening, and that “if Mac wanted to get in touch with him to write him general delivery at Merced; that it was not too late yet to fix the matter”.

On Tuesday, August 17, 1937, McNeil sent a telegram to Mr. Werner, at Merced, California, which read as follows:

“Wire me immediately upon receipt of this if you can be in Los Angeles Tuesday or Wednesday of this week. Contact me personally at my home. Regard this strictly confidential.

“William McNeil.”

Mr. McNeil testified that his attitude toward Mr. Werner at the time he sent the telegram was one of dislike: “I didn't feel very good toward him, after he robbed me. He had robbed me, and you don't love a man that has robbed you.” His reason for sending the telegram was given by him as follows: “He (referring to appellant) had, as you know, tried to get in touch with me by coming to the house and by seeing Newmire and by seeing Shapiro, and I had discovered some of the things that he had done, and I was trying to find why he was still anxious to see me, and I sent the telegram.”

On Friday of that week, August 20, 1937, after receipt of the above-mentioned telegram, Mr. Werner visited McNeil at his home. McNeil testified that appellant told him that “* Mrs. Werner had some good ideas, and that he had some good ideas, as to how to handle it” (the criminal action against McNeil instituted by Mrs. Bovell) “in the District Attorney's office; * and he said that Mrs. Werner was very well acquainted with Mr. Simpson, the Chief Deputy District Attorney there, and that for about $2500.00 he could get Mr. Simpson to, as he said, kick this case out of the District Attorney's office; in other words, he could square it up, but it would be necessary, naturally, to satisfy Mrs. Bovell, so that she would not * have any complaint coming. And he began talking about what he thought would be necessary to handle the whole thing, all the way around, with Mrs. Bovell and with the Deputy District Attorney * and he (Mr. Werner) went ahead to say that he believed that if I would give him a deed to my house * He said I would have to trust him. That we could not have any memorandum of any agreements, at all, or any contracts; but if I would give him a deed to my house * and a bill of sale of the furniture, and an interest that I had in a couple of bungalows down towards Culver City, and $10,000.00, that he was satisfied that he could take care of it in the District Attorney's office, by paying Mr. Simpson $2,500.00, and * he went ahead to say that if there was anything saved out of the property, he would turn it back to me, and that I had to trust him and Mrs. Werner entirely.”

McNeil further testified that Mr. Werner stated he was returning to Merced and would telephone McNeil on the following Monday to get McNeil's decision as to whether he “wanted to do all that or not”. Before appellant left, McNeil drove him over to a street a short distance from the Bovshover home, where appellant left the car. McNeil called for Mr. Werner at the same place approximately two hours later, at which time, McNeil testified, Mr. Werner told him that he had gone over the Bovell matter with Mr. Bovshover and Mrs. Bovell, and that Mr. Bergman naturally represented Mrs. Bovell but that he, appellant, was working himself in the good graces of Mrs. Bovell and Mr. Bovshover and that he thought eventually Mr. Bergman would “get bounced out of the case, and he would be able to handle it”.

It appears that some time during that week McNeil had discussed with a Mrs. Daugherty, who was a friend of the McNeils, his “difficulties” with the Werners, and the belief on his part “that the Werners were trying to shake him down”. Mrs. Daugherty called upon the district attorney and was referred to Mr. Herman Arterberry, the deputy district attorney who was then handling the criminal action pending against McNeil, to whom Mrs. Daugherty related the story of McNeil's asserted mistrust of Mr. Werner. Mr. Arterberry thereafter called McNeil on the telephone and asked him to come in and see him.

The following Monday, August 23, 1937, McNeil called at the office of the district attorney and talked to Mr. Arterberry, and also Mr. Logan Lindley, chief of the corporate securities department of the district attorney's office. McNeil related to them his version of the incidents that had taken place between him and appellant. During the course of their conversation, Mr. Ted Allen, an investigator in the district attorney's office, was called into the room. Thereafter Mr. Allen accompanied McNeil to his home.

On the following Wednesday, August 25, 1937, appellant and Mrs. Werner arrived at McNeil's home. Previous to that time Mr. Allen had installed a dictaphone microphone in the furnace radiator in the McNeil living room. The rest of the device was placed in the basement directly under the microphone. At the time appellant and Mrs. Werner arrived, Mr. Allen and a stenographer in the district attorney's office were present in the basement. After a short conversation between McNeil and Mr. and Mrs. Werner, appellant went upstairs to shave. McNeil testified as follows as to the alleged discussions which ensued: that Mrs. Werner told him that “anything that was to be handled in the settlement of this matter in the District Attorney's office, she would handle, herself; and if she didn't get to handle the money she would not have anything to do with it * and that she could have this case dismissed in the District Attorney's office by paying to Bill Simpson, the Chief Deputy District Attorney, $2,500.00. * I asked her if she knew Mr. Simpson well, and she said yes, she did; that she used to office in the same building with him in Pasadena, when she was tax appraiser; * and that Mr. Arterberry would have to be willing to dismiss this case if Mr. Simpson told him to do it”. Mrs. Werner then stated that it would be necessary for her to go over and see Mrs. Bovell and Mr. Bovshover; that she being a woman could talk to Mrs. Bovell better than a man could and that she was going to propose that they go over that evening to the Bovshover home and have dinner.

McNeil testified that when appellant returned to the room shortly thereafter, Mr. Werner said “he would offer them (Mrs. Bovell and Mr. Bovshover) the home and the furniture and the two bungalows and $10,000.00 *. That Mr. Bergman was in New York, and that it would be necessary to get Mr. Bergman on the telephone if we got down to an understanding”.

On the following day, Thursday, August 26, 1937, appellant and Mrs. Werner returned to the McNeil home. Mr. McNeil testified as to what occurred upon that occasion in substance as follows: that Mrs. Werner told him they had had dinner at the Bovshover home the night before, and that Mrs. Bovell was there, and that apparently matters were progressing satisfactorily, and that they were going to be able to effect a settlement with Mrs. Bovell; that appellant told him (McNeil) that he wanted him to put up the $10,000 “right now” as he “could not do business on jawbone”, which statement provoked an angry discussion between them. It appears that an arrangement was made secretly between Mrs. Werner and McNeil that she was to see McNeil alone some time the following day, and that Mr. Werner was not to know of this arrangement. McNeil further testified that Mrs. Werner informed him that “she had already talked to Mr. Simpson, and he wanted $2,500.00, and that he had definitely agreed to have the case dismissed in the District Attorney's office”.

On the following afternoon, Friday, August 27, 1937, Mrs. Werner called upon McNeil, at which time, McNeil stated, Mrs. Werner told him that she and appellant expected to come out that night to get the $10,000, but that she wished him to tell appellant that it would not be available until the following morning; that, nevertheless, McNeil was to “slip” her the $10,000 in an envelope that evening, secretly, in the event Mr. Werner should happen to leave the room. According to McNeil, the reason given by Mrs. Werner for this surreptitious arrangement was that if she had the money in her possession “she would see that it was not used unless the District Attorney's office was paid off and taken care of”. McNeil also testified that Mrs. Werner “said she had to see Mr. Simpson the next morning” (Saturday morning, August 27th), “and give him the $2,500.00”.

On the evening of that same day, Friday, August 27, 1937, (the date mentioned in the indictment), appellant and Mrs. Werner returned to McNeils's home. A short time after they entered the house appellant left the room for a few minutes, and in his absence Mrs. Werner asked McNeil to give her the money, which he did, and Mrs. Werner pinned the envelope in her blouse. The envelope contained two $1 bills and eight pieces of white paper cut the size of one dollar bills, with a little pencil mark in the corner of each slip. It was not McNeil's money but money which had been handed to him by the investigator in the district attorney's office. After appellant returned to the room, and upon Mrs. Werner's suggestion, they left the McNeil home. As Mr. and Mrs. Werner walked out into the yard they were arrested by deputies from the district attorney's office.

Mr. William E. Simpson, the chief deputy district attorney, denied knowing the defendant Mrs. Werner, or that he had ever maintained an office in Pasadena.

It is contended on appeal, quoting from appellant's brief, that “The People's whole argument thus rests upon the conniving of McNeil”, and that “The People's whole case, therefore, against Erwin P. Werner, hinges upon this one shred of testimony from an undependable and base a character as ever testified in a court room”.

Based upon the authority of People v. Pantages, 212 Cal. 237, 297 P. 890, and Dahly v. United States, 8 Cir., 50 F.2d 37, it is argued that McNeil's testimony is inherently improbable and therefore insufficient to support the verdict. The trial was somewhat protracted, as indicated by a reporter's transcript of 1580 pages, and it would serve no useful purpose to enter upon a detailed discussion of the evidence as revealed by the record, which tends to, and does in fact, defeat appellant's contention in this regard. Conceding that he is the knave sought to be pictured by appellant, McNeil's testimony nevertheless is not without substantial corroboration. It should be emphasized that the jury, in the first instance, is vested with exclusive power to pass judgment upon the credibility of the witnesses. It is evident, from a review of the evidence adduced at the trial, that the jury was accorded ample opportunity to give intelligent consideration to McNeil's testimony and to give to such testimony the value to which, in the judgment of the jury, it was entitled. The Pantages case, supra, and the Dahly case, supra, announce and affirm a well-known doctrine and serve as examples thereof but whether the doctrine applies depends upon the facts and circumstances of each individual case. In the circumstances here presented, no reason appears for disturbing the verdict of the jury on the grounds that McNeil's testimony is inherently improbable and that, as a matter of law, therefore, the judgment lacks evidentiary support.

It is also contended that the evidence is insufficient to prove any attempted grand theft, because, as argued by appellant: First, there can be no attempted grand theft by one who seeks to recover moneys owed to him by a debtor; Second, there can be no attempted grand theft by invitation of the alleged victim; Third, there can be no attempted grand theft where the alleged attempt to steal is not to be formed until a future time; and, Fourth, where two dollars are taken by one of two codefendants, the offense, if any, is petty theft.

In connection with the first item above-mentioned, it is argued that in the civil action filed by appellant against McNeil to recover the sum of $7,500 claimed by him as attorney's fees, McNeil defaulted and that therefore the relation of creditor and debtor between Werner and McNeil was effectively established. The contention is without merit. In a criminal action the offense is against the state and not against the individual, and therefore any action McNeil may have taken in connection with a civil controversy is not binding upon the state and is beside the issue. In that connection it should be noted that the rejection of evidence offered by the defendant and appellant, tending to prove the value of Werner's services, was proper.

The second contention above-mentioned, namely, that the alleged theft was at the invitation of McNeil, lacks support in the record, as does, also, the contention above-described as item three.

The argument of appellant, denominated as item four, is likewise without merit. The defendants were charged with attempted grand theft. If it can be shown that the amount attempted to be stolen meets the statutory definition of grand theft, proof is sufficient and the amount, if any, actually stolen is immaterial. Indeed, the crime of attempted grand theft may be complete in the absence of proof of an actual theft of anything of any value. To hold to the contrary would eliminate such offenses as the attempted theft of an automobile, horse, mare, et cetera, which under the law may be the objects of attempted grand theft. Sec. 487, Pen.Code.

It is argued also that the evidence reveals a “case of entrapment”, and, further, that there can be no conviction of attempted grand theft where all the evidence, “if it proved anything, proved solicitation to bribe”. It is a reasonable assumption that the same argument was presented to the jury and to the court at the trial and with no more success there than the record reveals it to be entitled to on appeal.

It is further contended, quoting from appellant's brief, that “The Court nowhere gave the statutory definition of theft, and its degrees”. In that regard the court instructed the jury as follows: “As applicable to the case on trial Attempt to Commit Grand Theft is defined as the Attempt to Commit theft of money or property of a value in excess of Two Hundred Dollars ($200.00).” The instruction was sufficient. Other complaints about instructions given and refused are equally unmeritorious.

The hearing on the motion for a new trial and the ruling thereon were in accordance with law. There are no prejudicial errors in the record.

For the foregoing reasons the order denying the motion for a new trial is affirmed.

DORAN, Justice.

We concur: YORK, P.J.; WHITE, J.

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