PEOPLE v. OWENS (1945)

This appeal involves two prosecutions instituted against the same defendant in the Superior Court of Los Angeles County and the validity of proceedings, judgments and orders made therein. Although the cases were separately tried in the superior court, they are by stipulation consolidated on appeal and presented on one set of briefs.

The First Case

In this prosecution, instituted by information No. 50759 filed by the district attorney on December 28, 1932, the defendant was accused in five counts of the crime of violating subdivision 3 of section 337a of the Penal Code. Following the entry of not guilty pleas to all counts, the case proceeded to trial before a jury on April 17, 1933, resulting in the conviction of defendant of each of the five counts. On April 24, 1933, which was the time fixed for pronouncing judgment, the defendant interposed a motion in arrest of judgment which was argued and submitted. The clerk's transcript reflects that on the next day the following proceedings occurred:

‘Defendant's motion for an arrested judgment on the grounds that the information fails to state facts sufficient to constitute a public offense is granted.

‘Defendant is discharged.

‘The District Attorney gives oral notice of appeal.’

On the next day, April 26, the district attorney, without the presence of the defendant, appeared in court, and the following proceedings ensued as shown by the clerk's transcript:

‘The District Attorney withdraws the oral notice of appeal made on April 25, 1933. On motion of District Attorney, a new information is filed.

‘Bench warrant is ordered issued for the appearance of this defendant * * *.’

It should here be noted that the ‘new’ information charged the same offenses as were charged in the original information as to which the motion in arrest of judgment was granted.

After the of pleas of not guilty and once in jeopardy to the second information, the trial was set for June 14, 1933, but when the case was called for trial the defendant failed to appear and a bench warrant was issued for his apprehension. Finally, on December 15, 1944, the case proceeded to trial before the court sitting without a jury, again resulting in the conviction of the defendant on all counts of the information. On the plea of once in jeopardy the court found for the people. Defendant interposed a motion for a new trial, which was denied. From the judgment and the order denying his motion for a new trial defendant prosecutes this appeal.

The first question presented to us on this appeal is that of jurisdiction of the superior court to try this cause a second time and enter the judgment complained of. This for the reason that immediately following the trial court's order granting defendant's motion in arrest of judgment following the first trial, the people, pursuant to the provisions of subdivision (a)(1) of section 1239 of the Penal Code, announced in open court that an appeal was taken from such order. On the day following the district attorney appeared in court and announced that the people ‘withdraw the oral notice of appeal’. On that date, April 26, 1933, rule 38 of the Rules on Appeal adopted by the Judicial Council on March 30, 1943, was not in effect. And even if it were, there was no compliance therewith because there was no abandonment of the appeal signed by the district attorney and filed with the court.

Therefore, an appeal from the order granting defendant's motion in arrest of judgment having been duly and regularly taken by the people, jurisdiction of the subject matter thereof was removed from the superior court. While the appeal was pending the superior court had no jurisdiction to proceed with a second trial. The attempted withdrawal of the appeal by the district attorney was a nullity. The fact that the record had not been lodged in the District Court of Appeal is not determinative of that court's jurisdiction. Until the appeal was disposed of by remittitur of the appellate tribunal after decision thereon or by dismissal thereof by either appellant or respondent on proper grounds or by stipulation, the jurisdiction of the subject matter of the order arresting judgment is vested in the appellate court. The notice of appeal invested the District Court of Appeal with jurisdiction thereof and deprived the trial court of power or authority ‘to move in conflict with such jurisdiction.’ People v. Sonoqui, 1 Cal.2d 364, 367, 35 P.2d 123, 125. Upon the authority and for the reasons stated in the case just cited as well as the cases of In Re Johannes, 213 Cal. 125, 129, 130, 1 P.2d 984, and People v. Workman, 7 Cal.2d 176, 59 P.id 1005, it must be held that an appeal was pending at the time the present or second trial took place and the court below was without jurisdiction to retry the defendant until such appeal was properly and legally disposed of. A reversal of the judgment and order denying a new trial being required on this ground, it becomes unnecessary to determine the other issues raised by the defendant.

The Second Case

In this prosecution, commenced by the filing of information No. 52433 on May 18, 1933, the defendant was accused in two counts of violation of subdivision 3 of section 337a of the Penal Code, in that he did ‘willfully, unlawfully and feloniously * * * receive and hold certain monies * * * to be wagered upon the result of a * * * horse race.’ On November 16, 1944, some eleven years after the information was filed, the defendant appeared in court, entered pleas of not guilty to both counts, waived a jury, and on December 15, 1944, the cause proceeded to trial before the court, resulting in the conviction of the defendant on both counts. Following the denial of defendant's motion for a new trial judgment was pronounced, from which, as well as from the order denying his motion for a new trial, defendant prosecutes this appeal.

In urging a reversal, appellant relies solely and alone upon the ground that the two, and only, witnesses produced by the prosecution were accomplices, and that their testimony was not corroborated as required by section 1111 of the Penal Code. It therefore becomes necessary to epitomize the evidence produced at the trial. In that regard the record reveals that the defendant called upon the aforesaid two witnesses, stating that he had been sent to them by some friends of theirs. Defendant stated he was a jockey; that each year there was a jockey race which gave the jockeys a chance to make some money; that this jockey race was to be held at Tanforan and he was collecting money and would share his winnings with them. The two witnesses each gave defendant a check for $100, which checks were later cashed by the banks upon which they were drawn. Defendant wrote the name of the horse on a piece of paper and signed his name at the bottom of the page. Defendant stated that he was going to telephone the bet to the track. The checks were given to defendant on April 26, 1933, and three or four days later defendant returned to the office of the witnesses and told them that the horse had bolted the barrier, jumped around, and consequently did not win the race. As one witness recalled from the conversation had with the defendant at that time, the latter was going to give them another horse on another date without their putting up any more money, so as to make up for what they had lost, but no further negotiations were had between them. Defendant did not testify or offer any evidence in his defense.

It should here be noted that at the time of the transaction with which we are here concerned (April 26, 1933) the California Horse Racing Act, as amended in 1935, Deering's Gen. Laws, Act 3421, now Div. 8, Ch. 4, Business and Prof. Code, St.1941, p. 659, had not been enacted. The Horse Racing Act created certain exceptions to the general prohibitions contained in section 337a of the Penal Code when the conditions laid down by the act are followed. In re Goddard, 24 Cal.App.2d 132, 74 P.2d 818; In re Walker, 11 Cal.2d 464, 80 P.2d 990, 117 A.L.R. 825. Obviously, therefore, at the time here pertinent all forms of betting or registering of bets on horse races were prohibited by the provisions of section 337a of the Penal Code.

Appellant contends that under the evidence just narrated both witnesses for the prosecution must be classified as accomplices of the defendant and he as an accomplice of theirs, while respondent earnestly urges that the defendant was specifically charged with ‘receiving and holding’ certain money to be wagered upon the result of a horse race; that the prosecution witnesses neither ‘received or held’ any such money; that such witnesses therefore were not accomplices, within the meaning of section 1111 of the Penal Code, which defines an accomplice as ‘one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.’

While, as contended by the respondent, the defendant was not on trial for the offense of ‘forwarding’ money to be wagered on the result of a horse race, nevertheless the section of the Penal Code under which this prosecution was brought makes it a crime for any one to ‘forward’ any such money or thing of value.

The rule in this jurisdiction has long been established that where a statute enumerates a series of acts, as does section 337a of the Penal Code, either of which separately, or all together, constitute the crime, any one of the series may be charged, but all of them may also be charged; and although each act standing by itself may constitute the offense, all of them taken together do no more, but simply constitutes one and the same crime. Bealmear v. So. Cal. Edison Co., 22 Cal.2d 337, 340, 341, 342, 139 P.2d 20. If respondent's theory is adopted, namely, that the witnesses in question did not ‘receive’ the wage, then in any case where a statute enumerates a series of acts as constituting a particular and single offense the prosecution could charge a defendant with the commission of any one of these acts and then present as witnesses others who admittedly, in concert and agreement with the defendant, had committed one or more acts also denounced by the same statute other than the act charged against the defendant, thereby circumventing and avoiding the provisions of section 1111 of the Penal Code; and this notwithstanding both the witnesses and the defendant were principals in the single offense stated by the statute under which the indictment or information was filed against the defendant.

Furthermore, we are convinced that the evidence in this case brings it within the exception to the foregoing general rule prescribing the test by which it is determined whether one is an accomplice, i.e., where the parties conspire together in a pre-arranged plan to commit a substantive offense. People v. Lima, 25 Cal.2d 573, 577, 154 P.2d 698. In the case just cited our Supreme Court, 25 Cal.2d at page 578, 154 P.2d at page 701 says: ‘An accomplice has been defined as one ‘who knowingly, voluntarily and with common intent with the principal offender unites in the commission of the crime.’' In the instant case we see no escape from the conclusion that there existed between the two prosecution witnesses and the defendant a conspiracy and agreement pursuant to which the prosecution witnesses were to and did furnish certain monies for the purpose of wagering upon the result of a horse race and the defendant was to forward the same or by telephone to arrange for the wagering of such monies upon the result of a horse race and then divide the winnings, if any, between each of the parties to the agreement. As was said in People v. Lima, supra, 25 Cal.2d at page 578, 154 P.2d at page 701, ‘It is both logical and reasonable to hold that they are accomplices in the offense or offenses resulting from the execution of such plan.’ To ignore the mutual agreement or conspiracy element and thereby eliminate the accomplice relationship would serve only to provide ways and means for circumventing the salutary rule requiring that accomplice witnesses be corroborated, for as stated in People v. Coffey, 161 Cal. 433, 438, 119 P. 901, 903, 39 L.R.A., N.S., 704, ‘Time has not changed the value of such evidence.’ As was so cogently said by Associate Justice Schauer in a strong and exceptionally well reasoned dissenting opinion in the case of People v. Clapp, 24 Cal.2d 835, 847, 151 P.2d 237, 244, ‘I exemptions in such laws (as to the corroboration of accomplices) are to be created, they should come from the Legislature and not be innovated by the courts. This court should be ever vigilant to protect, rather than to whittle away, the safeguards which the people through the Legislature have thrown around their liberty. However righteous the zeal to punish the guilty, the result of a salutary law struck down may well be more unrighteous than for two (or any number of) guilty individuals to escape punishment for a particular offense.’

We therefore conclude that both witnesses for the prosecution, in view of their testimony, and under the circumstances established by the evidence, must be held to be accomplices, and that defendant's conviction is not legally supported unless their testimony was corroborated. It is not here contended by respondent that the record discloses any evidence other than that of the accomplices tending to connect the defendant with the commission of the crime charged against him, and an examination by us of the record discloses no such corroborative evidence.

For the foregoing reasons the judgments and the orders denying defendant's motions for a new trial in both cases are, and each is, reversed.

WHITE, Justice.

YORK, P. J., and DORAN, J., concur.