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


Cr. 5060.

Decided: January 27, 1954

Samuelson & Buck, and Clarence Hengel, Long Beach, for appellant. Edmund G. Brown, Atty. Gen., and William E. James, Deputy Atty. Gen., for respondent.

In an information filed by the District Attorney of Los Angeles County defendant was charged, in Count I, jointly with Leon Wayne Schaefer, with the crime of conspiracy to violate section 337a of the Penal Code, and in Count II with violation of subdivision 3 of section 337a of the Penal Code. The jury brought in verdicts of guilty as to Count I and not guilty as to Count II. From the judgment of conviction and the order denying his motion for a new trial, defendant prosecutes this appeal. The defendant Schaefer, charged as a co-conspirator, died before the trial. Reversal is sought upon the grounds that the evidence is insufficient to support the verdict of guilty of the charge of conspiracy; that the court erred in admitting evidence of the declarations of the deceased co-conspirator made to a police officer; that the verdict of guilty on Count I is inconsistent with the verdict of not guilty on Count II; and that the court erred in failing to give an instruction on its own motion as to the necessity for corroboration of the testimony of an accomplice, Pen.Code, § 1111.

Following a guilty verdict we are required to view the evidence in a light most favorable to the prosecution. The testimony adduced on behalf of the People consisted of that given by officers Jacobsen and Hermansen, of the Long Beach Police Department. Jacobsen met the defendant Schaefer on American Avenue in Long Beach and told Schaefer that his name was ‘Rod’; that he was operating a ‘little book’; that his business was getting too large, and he was looking for a place to ‘lay off’ some bets. Schaefer said that he could handle the bets through a ‘big bookmaker.’ They agreed to meet the next day, October 23. On that day at 2:30 Jacobsen met Schaefer, gave him $15 and a slip of paper containing the names of three horses running at Bay Meadows. Jacobsen told Schaefer he wanted $5 to win on each of the three horses. Schaefer and Jacobsen agreed they would meet again the next day if Jacobsen had a ‘pay off’. On October 24, the two met and Schaefer gave Jacobsen $20, the proceeds of his bets of the day before. Jacobsen at this time gave Schaefer $20, consisting of one ten-dollar bill and ten one-dollar bills, and a slip of paper containing the names of four horses running that day. Jacobsen had recorded the serial numbers of the bills and had treated the bills with a fluorescent powder, which would rub off on the hands of any one handling the bills and which would be visible under ultra-violet light.

After leaving Schaefer, Jacobsen went to the cafe in Long Beach where appellant, Robinson, was employed as a bartender. When he arrived he saw officer Hermansen with Robinson and Schaefer, and saw money in the hands of Robinson. The latter was thereupon arrested, and there was found on his person a paper described as an ‘O’ sheet, on which were recorded the names of persons who had bet on horses, the amounts to be paid to such persons and the amounts to be collected, together with the amount that the ‘book’ had made that day.

Detective Inspector Hermansen testified that he had been working with officer Jacobsen on October 24 and that the two of them had made up the list of horses which was given to Schaefer. He observed Jacobsen handing the money to Schaefer on October 24. He followed Schaefer to the cafe and saw him in conversation with Robinson. He saw Schaefer put his hand in his left rear hip pocket, where he had put the money and paper given him by Jacobsen, and withdraw what appeared to be the same money with a white paper wrapped around it and give it to Robinson, who took the paper and money and thumbed through it. Hermansen recognized the paper in Robinson's hand as the paper which Officer Jacobsen had torn from his notebook. Hermansen then moved to arrest Robinson, but due to the presence of several patrons at the bar and the fact that Hermansen also paused to detain a person leaving the phone booth, Robinson was out of Hermansen's sight for several seconds. Search of Robinson disclosed a roll of bills, but not the marked bills, and the slip of paper could not be found. Hermansen went out to get the ultra-violet machine, and when he returned there was some money in a glass before Robinson, who was sitting at a cocktail table. Officer Jacobsen testified that he saw Robinson place the money in the glass. The money, in part, was fluorescent and had the serial numbers previously noted by the officers. Traces of the fluorescent power were found on the hands of both Schaefer and Robinson and on the material near Schaefer's left rear pocket. The slip of paper, or betting marker, which Jacobsen had given Schaefer, was never found.

The ‘O’ sheet had the name ‘Leo’ written on it, and defendant Schaefer's first name was ‘Leon’.

Defendant, Robinson, testifying in his own behalf, admitted receiving money from his co-defendant Schaefer on the day in question. He explained his possession of the ‘O’ sheet by stating that he had picked it up from the floor. He further testified he did not know what an ‘O’ sheet was, notwithstanding his admitted prior conviction of bookmaking, and that formerly he had been a bookmaker for some years. Defendant, Robinson, further testified that he had no conversation with his co-defendant Schaefer with reference to the four horses upon which bets had been placed, or regarding horse racing. In coversation with the officers, as well as at the trial, defendant Robinson claimed there was no marker or slip of paper around the money when Schaefer gave it to him.

Defendant Robinson's employer, Willis Skipworth, owner of the cafe, testified that on the morning in question he gave Robinson about $300, and that later on the same day, the former returned the money less the amount expended for purchases, which was about $175.

The first count of the information charged appellant and Schaefer with conspiracy ‘to engage in pool selling and bookmaking, and to receive, hold and forward bets and wagers upon the result and purported result of contests of skill, speed and power of endurance of men and beasts, to wit, horse races.’ The first four overt acts set forth in this count related to the activities of Schaefer in (1) accepting a bet from Officer Jacobsen, on October 23; (2) meeting Jacobsen by prearrangement; (3) accepting four bets from Jacobsen on October 24; and (4) taking the money received from Jacobsen, together with a betting marker, to ‘a bar on Elm Avenue’. Overt Act No. 5 is pleaded as follows: ‘That pursuant to said conspiracy and to accomplish its objects and purposes, the said defendant, Leon Wayne Schaefer, on or about the 24th day of October 1952, in the County of Los Angeles, handed said bet and betting marker to the said defendant, William Clyde Robinson, who accepted said money and betting marker and had a conversation with the said Leon Wayne Schaefer.’

Count II of the information charged, as a ‘different offense of the same class of crimes and offenses as the charge set forth in Count I’, that Robinson and Schaefer violated subdivision 3 of section 337a of the Penal Code, in that on October 24, 1952, they did ‘* * * receive, hold and forward, and purport and pretend to receive, hold and forward certain moneys, lawful money of the United States, and the equivalent and memorandum thereof in writing, staked, pledged, bet and wagered, * * *’ upon the outcome of a horse race.

Appellant first contends that the unlawful combination, the gist of the conspiracy count, is not established by competent or sufficient evidence. It is not often that the direct fact of an unlawful agreement, which is the essence of a conspiracy, can be proved otherwise than by establishing independent facts bearing upon the common design, and the question as to the existence of the conspiracy being one of fact, it is sufficient if the circumstances proved satisfy the jury, leaving the weight and sufficiency of the evidence to the triers of the questions of fact, People v. Sampsell, 104 Cal.App. 431, 439, 286 P. 434.

No citation of authority is needed for the statement that before this court can set aside the verdict of the jury, which has been approved by the trial judge in the denial of a motion for a new trial, it must be made clearly to appear that upon no hypothesis whatever is there substantial evidence sufficient to support the verdict of the jury and the conclusions of the trial judge.

We concede the soundness of appellant's claim, as a principle of law, that mere association is not sufficient to show a conspiracy. However, in the case now engaging our attention, there was more than mere association between appellant and his co-defendant, Schaefer. After the latter had accepted the $20 on October 24th, from Officer Jacobsen, he went directly to the Old Mexico Cafe, where he delivered the money to appellant (which money was, unknown to either Schaefer or appellant, marked with a fluorescent powder). There is evidence that at the time of such delivery, the money was wrapped in a white slip of paper which was the market and contained the names of horses upon which the bets were placed for that day.

When appellant was arrested and his hands examined, they were found to contain the powder which had been placed upon the marked bills. Appellant attempted to dispose of these bills but was prevented by the officers. The marker was disposed of although it was seen in Robinson's hands after it had been given to him by Schaefer. The other persons in the establishment did not have the iridescent powder on their hands. When questioned concerning the money Robinson gave conflicting and ambiguous answers and when told that he had given conflicting answers merely stated, ‘Neither one is right, it doesn't matter anyway.’ On appellant's person was the ‘O’ sheet on which were recorded the names of the persons who had bet on horses, the amounts to be paid such persons, the amounts collected and the amount the ‘book’ made that day.

This evidence we regard as ample to establish a corpus delicti as to appellant, and to connect him with the conspiracy charged against him.

Appellant next contends it was error to admit into evidence the declarations and statements of the co-conspirator Schaefer, made outside the presence of the former. Since there was prima facie proof of the existence of a conspiracy, it follows that testimony of such statements, made by Schaefer, in furtherance of the conspiracy, outside the presence of appellant, was properly admitted, People v. Curtis, 106 Cal.App.2d 321, 325, 326, 235 P.2d 51; People v. Collier, 111 Cal.App. 215, 240, 295 P. 898. Appellant recognizes that the trial court can regulate the order of proof in this regard.

It is true that the co-conspirator Schaefer died before the trial and that the statements allegedly made by him to the police officer were related to the jury by the latter. While such evidence is said, “to be in its nature the weakest and most unsatisfactory”, Smellie v. Southern Pacific Co., 212 Cal. 540, 560, 299 P. 529, 537, and that “no weaker kind of testimony could be produced”, Belletich v. Pollock, 75 Cal.App.2d 142, 147, 171 P.2d 57, 61, nevertheless, the credibility of the witness narrating such statements and the intrinsic value of such statements as evidence were questions addressed to the duly constituted arbiters of the facts.

It is appellant's further contention that inasmuch as the jury found him not guilty on Count II which alleged the violation of subdivision 3, § 337a of the Penal Code, that the verdict finding him guilty of conspiracy to violate said Penal Code section was inconsistent.

Respondent agrees that in a case where the sole overt act alleged in charging the crime of conspiracy is charged in a separate count as a separate offense and the jury finds the defendant not guilty of the crime charged in the separate count, such a verdict finds, in effect, that the overt act set forth in the charge of conspiracy was not committed and in the face of such a finding a conviction under the conspiracy court cannot stand, but urges that such is not the instant case because four other overt acts were charged in the information.

Relying strongly on the case of People v. Yant, 26 Cal.App.2d 725, 731, 732, 80 P.2d 506, respondent urges that where other overt acts were charged than those upon which the accused was convicted, the conviction under the conspiracy count is good. However, in the cited case, the defendant was accused of overt acts in addition to those which formed the basis of substantive offenses upon which he was found not guilty, while in the case at bar, appellant was charged in the conspiracy count with conspiring to ‘Receive, Hold and Forward bets and wagers upon * * * horse races'. The only overt act charged against him in furtherance of the conspiracy was that on or about October 24, 1952, the codefendant Schaefer ‘handed said bet and betting marker to the said defendant, William Clyde Robinson, who accepted said money and betting marker and had a conversation with the said Leon Wayne Schaefer.’

In Count II, appellant was charged with the substantive offense of violating section 337a, subdivision 3 of the Penal Code, in that he did, ‘Receive, Hold and Forward * * * certain monies * * * and memorandum thereof in writing * * * pledged, bet and wagered * * * upon the purported result’ of certain horse races.

By their verdict the jury found appellant not guilty of having received, held or forwarded bets or memorandum thereof in writing upon horse races.

We are not unmindful of section 954 of the Penal Code which provides that a pleading in criminal cases may charge two or more different offenses connected together in their commission, or different statements of the offenses or two or more offenses of the same class, and that the section concludes, ‘An acquittal of one or more counts shall not be deemed an acquittal of any other count.’ But, as was said of this code provision in In re Johnston, 3 Cal.2d 32, 36, 43 P.2d 541, 543; ‘But we cannot construe it to mean that an indictment or information charging conspiracy is sufficient without the allegation of an overt act, nor that such an indictment or information furnishes the basis for a judgment of conviction when the defendant has in fact been acquitted of every overt act alleged.’

In the instant case the jury found by their verdict that appellant did not commit the sole and only overt act charged against him. It seems clear and inescapable that since appellant was deliberately acquitted by the jury of receiving, holding or forwarding the bets or memorandum thereof in writing, on horse races, which was the only overt act charged against him in Count I, it would have been impossible for him to have joined a conspiracy to commit that crime. It must, therefore, be held that the verdict which was rendered against appellant on Count I, is in irreconcilable conflict with the verdict rendered on Count II, and must be set aside. People v. Chambers, 22 Cal.App.2d 687, 723, 724, 72 P.2d 746.

In view of the foregoing conclusions at which we have arrived, it becomes unnecessary to discuss appellant's final contention that the court failed to give an instruction that the testimony of certain witnesses must be corroborated, although such instruction was not requested by appellant at the trial.

We are persuaded that the verdict of acquittal which was rendered by the jury on Count II will furnish conclusive proof of a former acquittal of the charge contained in Count I, and therefore, no good will be subserved by a second trial.

For the foregoing reasons, the judgment and the order denying defendant's motion for a new trial are, and each is reversed, and the cause remanded with directions to the court below to dismiss the information.

WHITE, Presiding Justice.

DORAN and DRAPEAU, JJ., concur.