Opinion
Page __
__ Cal.App.2d __ 315 P.2d 936 The PEOPLE of the State of California, Plaintiff and Respondent, v. William G. BONELLI et al., Defendants, Nathan Harris Snyder and Edward Levine, Defendants and Appellants. The PEOPLE of the State of California, Plaintiff and Respondent, v. Nathan Harris SNYDER, Defendant and Appellant. Cr. 1313. California Court of Appeals, Fourth District Sept. 27, 1957Rehearing Denied Oct. 22, 1957.
Hearing Granted Nov. 20, 1957.
[315 P.2d 938] Joseph A. Ball, Long Beach, Walter Ely, Ward Sullivan, Abraham Gorenfeld and Marshall Ross, Los Angeles, for appellant Nathan Harris Snyder.
Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., James Don Keller, Dist. Atty. (San Diego), Jack R. Levitt, Deputy Dist. Atty., San Diego, for respondent.
MUSSELL, Justice.
Appellants Nathan Harris Snyder and Edward Levine were found guilty by a jury in San Diego county of the crimes of conspiracy as charged in counts two and three of an indictment. The same jury found appellant Snyder guilty of perjury as charged in two counts of a separate indictment. The two indictments were consolidated for trial on motion of the district attorney and stipulation of the parties. Motions for new trial made by Snyder and Levine were denied and they were sentenced to the state prison. Both appellants appealed from the judgments of conviction and orders denying new trial. However, the appeal of Levine was dismissed by this court pursuant to an abandonment of said appeal filed herein.
It is alleged in count two of the conspiracy indictment that appellant Snyder and Levine and others, in violation of section 5002.5 of the Elections Code, conspired and agreed together to commit the crimes of soliciting, asking and receiving cash political contributions, and contributions of things of monetary value from persons who were named in licenses to sell alcoholic beverages issued by the Board of Equalization of the State of California and to solicit, ask and receive cash contributions, and contributions of things of monetary value from holders of licenses to sell alcoholic beverages issued by the said Board of Equalization for use in campaigns for re-election of William G. Bonelli as a member from the Fourth District of said Board of Equalization at times when William G. Bonelli was then and there a duly elected and duly authorized members of said board. Six overt acts occurring in the county of San Diego were alleged in this count of the indictment.
In count three of the indictment Snyder, Levine and others were charged with violating section 5002.6 of the Elections Code by conspiring and agreeing together to commit the crime of giving, offering and promising to give cash political contributions and contributions of things of monetary [315 P.2d 939] value to William G. Bonelli by persons who were named in licenses to sell alcoholic beverages issued by the Board of Equalization of the State of California, and to give, offer and promise to give cash contributions and contributions of things of monetary value by holders of licenses to sell alcoholic beverages issued by said board for use in campaigns for the re-election of William G. Bonelli as a member from the Fourth District of said board at times when said William G. Bonelli was then and there a duly elected and duly authorized member of said board. Six overt acts occurring in San Diego county were alleged in this count.
It was alleged in count one of the perjury indictment that Snyder on or about September 8, 1954, having taken an oath that he would then and there testify truly in a matter then pending before the grand jury, did wilfully and feloniously and contrary to such oath testify as follows:
'Q. Now, none of the moneys that were spent by the National Democratic Club paid for any advertising on behalf of William G. Bonelli?
'A. As far as I know it was never done. I wrote no check for any such thing.
'Q. Any of the printing that was paid for--I notice printing and advertising firms in those checks that you showed me. Any of those paid for advertisements that mention the name William G. Bonelli as a candidate?
'A. To my knowledge not.
'Q. But there were no expenditures by the National Democratic Club, directly or indirectly, made on behalf of Mr. Bonelli's campaign?
'A. There were none.'
The said oath was so taken and said false statements were made during a session of the grand jury as part of the evidence in the grand jury investigation of violations concerning campaign contributions, said false statements being then and there material to the investigation being so conducted; that the said statements and testimony were false and untrue and were known to Snyder to be false and untrue and were given in evidence in a grand jury investigation entitled 'In the 1954 Grand Jury of San Diego County, State of California.'
It was alleged in count two of the perjury indictment that on or about October 19, 1955, Snyder having taken an oath that he would testify truly in the matter then pending before the grand jury, did wilfully and feloniously testify and state as true as follows:
'Q. Now, did you expend any money directly for William G. Bonelli?
'Q. I have not spent any money directly for Mr. Bonelli.
'Q. Did you give any money to anybody that was to be used for Mr. Bonelli?
'A. No, sir. If I gave money to there it was never with that purpose in mind.'
That said oath was so taken and said false statements were made during a session of the grand jury of the county of San Diego as part of the evidence in a grand jury investigation of violations concerning campaign contributions in said county, said false statements being then and there material to the investigation being conducted; that said statements and testimony then so made and given by Snyder were then and there false and untrue and that said false statements and testimony were given in evidence in a grand jury investigation entitled 'In the 1955 Grand Jury of San Diego County, State of California.'
William G. Bonelli was re-elected a member of the State Board of Equalization for the Fourth District in the primaries of 1950. He took the oath of that office and again became an official member of said board in 1950 for a term of four years, which he served. He ran for re-election in the primary and general elections of 1954.
Appellant, an attorney with offices in Los Angeles, was secretary of the National Democratic Club of California. There were no articles of incorporation of this club produced at the trial and apparently the only records of the club which were kept considered of a bank book and deposit slips. Tobia Lee Harvey, the only legal secretary for appellant since January, 1952, testified [315 P.2d 940] in this connection that during the primary election of 1954 certain moneys came into appellant Snyder's office in connection with the National Democratic Club, which money was deposited in the bank account for the club at the California Bank in Los Angeles and that she knew of no one else connected with the National Democratic Club of California. Harry N. Horner, assistant manager of this bank, testified that the signature card for said club showed that appellant Snyder was the only person authorized to withdraw club funds from the account from 1946 until October 4, 1954.
Contributions to Mr. Bonelli's campaign were solicited and collected from liquor license holders by persons active in the Bonelli campaign and appellant concedes that some of the checks collected were the result of solicitations made in San Diego county by persons active in the Bonelli primary election campaign for re-election to the State Board of Equalization in 1954; that the checks were solicited and given for that purpose and that it may be deemed admitted that there was a conspiracy organized by Bonelli to violate section 5002.5 of the Elections Code. However, appellant contends that he was not a party to said conspiracy in 1954 and that there was no evidence that he used said funds for Bonelli's political campaign of that year.
Many witnesses testified for the prosecution as to contributions made to various persons for the Bonelli campaigns. Albert K. Tossas, owner of a cocktail liquor license in Long Beach, testified that he participated in the campaign of William G. Bonelli in 1950 at the request of Bill Cook, who was one of the heads of the campaign for Mr. Bonelli; that Mr. Cook furnished him with lists of liquor licensees to solicit for funds for the campaign; that he was instructed to receive the contributions in the form of cash and checks made payable to the Aldine Printing Company, the Woolever Press and the National Democratic Club of California; that Cook told him to obtain a certain amount in cash because he needed money to take care of the workers and that at different times he was told to get more checks to Woolever or to Aldine or the National Democratic Club; that he turned over the cash and checks, together with the lists supplied to him, to Mr. Cook every two or three days; that he collected approximately $20,000 during the primary campaign of 1950, of which about sixty-five per cent was in checks; that he told the contributing licensees that the contributions were for William G. Bonelli's re-election and that he never gave a receipt to any of them; that he was not allowed to accept checks payable to the Bonelli campaign fund; that he delivered large sealed envelopes between Mr. Cook and Charles Berry, the former district liquor administrator of San Diego county during the time he was in San Diego soliciting.
Virgil A. Wyatt testified he was the public relations counsel in San Diego; that on April 1 he was present at a meeting in San Diego at which Bonelli stated that he, Wyatt, was to handle the public relations of the campaign; that Berry was to be responsible for the funds and that he was to receive the funds from Dorothy Hall; that he received a number of checks to finance the publicity from Mrs. Hall in various amounts.
William Recht testified that during 1950 he was a partner in the Black and Gold Room and owned a liquor license issued by the State Board of Equalization; that he was the maker of the check given to Virgil Wyatt by Mrs. Hall and that it was a campaign contribution.
Ray P. McCullough testified that he was in charge of the collection of campaign contributions for William G. Bonelli; that he collected around $8,000 exclusively from liquor licensees; that the collections were in cash or checks payable to the National Democratic Club of California, Inc. or the Woolever Press or the Aldine Printing Company. He identified many checks as campaign contributions from liquor licensees for William G. Bonelli handled by or through himself, several of which were payable to the order of the National Democratic Club of California, Inc. and which checks were endorsed as follows: 'National Democratic Club of California, Inc., N. H. Snyder'; that he ordered one check [315 P.2d 941] returned which had been endorsed 'Pay to the order of National Democratic Club, Inc., William G. Bonelli campaign fund, Room 236, U. S. Grant Hotel, by Dorothy S. Hall' and obtained a check from the licensee bearing the endorsement 'National Democratic Club of California, Inc., N. H. Snyder' as he had been instructed to have checks made payable only to the National Democratic Club of California or the two printing companies; that he told the liquor licensees he had solicited that the contributions were for the Bonelli campaign and that he never gave a receipt for any of the cash contributions; that he sent part of these collections in checks and cash to the National Democratic Club of California, attention Nate Snyder, on two or three occasions.
Kenneth E. Bitter testified that on or about March 8, 1954, he had a conversation with William G. Bonelli during which Bonelli asked him to be the chairman of his sponsoring committee and told him that Mr. McCullough was going to collect the money; that they were going to have an office and that Miss Hall would be in that office; that he had picked up a check drawn on Bocardo's 800 Club, dated June 5, 1954, payable to the 'Democratic Club of California, Inc.,' in the amount of $100 bearing the endorsement 'National Democratic Club of California, Inc., N. H. Snyder' and had delivered this check to Mr. McCullough.
Girolamo Cusenza testified that in 1954 he owned a liquor license and collected campaign contributions on behalf of William G. Bonelli; that he collected between $1,000 and $1,200 from liquor licensees exclusively, giving the reason for the collection to the licenees that it was for the campaign of William G. Bonelli and that he turned this money over to Mr. McCullough.
Charles E. Berry testified that he was formerly the district liquor administrator for San Diego and Imperial counties; that he was active in the 1950 campaign of William G. Bonelli and knew that Albert Toassas was collecting campaign contributions during 1950 from liquor licensees; that the contributions were in the form of checks payable to the Woolever Press, the Aldine Printing Company and the National Democratic Club of California; that he told Mr. McCullough in 1954 to have the contributions that were collected sent to Nathan Snyder at the National Democratic Club.
Many other liquor licensees testified that in 1954 they made contributions to the campaign of Mr. Bonelli and for that purpose delivered checks made out to the National Democratic Club of California to various persons who were collecting for Mr. Bonelli. These checks were later endorsed 'National Democratic Club of California, Inc., N. H. Snyder.'
Arthur V. Morgan testified that in 1954 he was present at a meeting of the tavern owners association in Long Beach at which a letter from Mr. Bonelli was read and that following the meeting, it was determined that tavern owners would be solicited; that he picked up checks made payable to Allied Printing Company and the National Democratic Association; that he had contributed to the Bonelli campaign in 1946, 1950, and 1954.
Wylie F. Moffett, a member of the tavern owners association, testified that he picked up contributions from liquor dealers in the form of checks made payable to the National Democratic Club, the Allied Printing Company and the Aldine Printing Company; that several of the checks bore the endorsement 'National Democratic Club of California, Inc., N. H. Snyder'; that these checks were sent to the National Democratic Club of California and that checks to all three organizations were included with those sent to said club.
Vivian Laird Hill, who owned a cocktail bar in Long Beach, testified that she made a contribution to the campaign of William G. Bonelli for re-election in 1954; that she had given a check made payable to the Bonelli Campaign fund which was brought back and one payable to the Aldine Printing Company picked up in its stead, following a conversation with a Mr. Morgan who had asked her for the contribution; that she was told by Mr. Morgan that the check payable to the Bonelli campaign fund wasn't acceptable.
[315 P.2d 942] Shelton A. McHenry, a liquor licensee, testified that during 1954 he made a contribution to the campaign of William G. Bonelli; that he did so by making out a check payable to the National Democratic Club of California which bore the endorsement 'National Democratic Club of California, Inc., N. H. Snyder'; that he made the check out to the National Democratic Club because he found it was a medium through which campaign funds could be gotten by Bonelli.
Harry Curland, who, during 1954, had cocktail licenses in race tracks throughout California, testified that his company received an invoice from the Aldine Printing Company, dated May 26, 1950, described as printing menus and forms in the amount of $5,000; that he sent a check drawn on his company in that amount pursuant to the invoice but that he had never ordered or received any menus or forms from the Aldine Printing Company and had no idea who asked him to send the check; that he sent a check drawn on his company, dated May 6, 1954, to the Aldine Printing Company in the amount of $950 and also sent a check drawn on his company, dated May 6, 1954, to the Woolever Press in the amount of $1,550; that he received an invoice from the Woolever Press, dated May 7, 1954, for printing posters in the amount of $1,550 but that he had not ordered or received any posters from the Woolever Press; that someone from the State Board of Equalization had asked him to send the two 1954 checks.
Irving Solomon testified that he owned a liquor license and restaurant in Long Beach; that he was contracted about a contribution to Bonelli's campaign and told that if he didn't contribute $250, he would be put on the black list and the next morning that list would go to Bonelli's desk; that after calling several restaurants in Long Beach, he contributed by making a check payable to the Allied Printing Company in the amount of $250.
Eugene Allen, an investigator attached to the San Diego County District Attorney's office, testified that during the fall of 1955 he made a search of the Los Angeles area in an attempt to locate an Allied Printing Company and that he failed to locate such a company after having made a search of the public records.
The record shows that more than $41,000 of liquor licensees' campaign contributions for Mr. Bonelli were received by the National Democratic Club of California between May 22, 1946 and July 8, 1954, and that many of the checks so received were endorsed by the appellant, who was the only person authorized to withdraw funds from the club account. The record further shows that campaign contributions for Mr. Bonelli from liquor licensees which were received by the appellant were used to pay Bonelli's campaign expenses. In this connection Boren R. Benton, sole owner and operator of Richmond P. Benton and Sons, who circulate petitions and handle other matters on behalf of political candidates, testified that in 1950 he received 12 checks totaling $1,000 from Nathan H. Snyder of the National Democratic Club, which sum he applied to Mr. Bonelli's account; that Mr. Cook made the final arrangements for Bonelli's work; that some of the checks he received from Mr. Cook were payable to the order of the National Democratic Club; that he did work for Bonelli in 1954, receiving cash in payment a part of which came from Mr. Levine.
Charles Raymond Woolever, sole owner of the Woolever Press, testified that during 1946 he did political printing on behalf of Bonelli's campaign pursuant to an account entitled 'National Democratic Club of California, Inc.'; that during 1950 he did further political printing on behalf of Bonelli's campaign, which printing was ordered by Bonelli or Cook under the 'National Democratic Club of California, Inc.' account; that on May 13, 1950, the 'National Democratic Club of California, Inc.' account showed an entry of sheet posters on behalf of Bonelli which had been ordered by Bonelli or Cook.
George Harry Kennedy, owner of the Kennedy Outdoor Advertising Company, testified that he did billboard posting on behalf of Bonelli in 1950; that the work, in the amount of $5,000 was recorded in his [315 P.2d 943] books under the name 'National Democratic Club of California, Inc.'; that he did further posting for Bonelli in 1950 in the amount of $3,100, also under the name of 'National Democratic Club', and that either Mr. Bonelli or Mr. Calhoun ordered this and told him to bill it under the name of said club; that in 1950 a job ticket corresponding to an item on the Ed Levine ledger had the title 'National Democratic Club of California, 215 W. 5th Street, Room 415'; that the job had been ordered by the National Democratic Club of California and contained samples of cards reading 'Reelect William G. Bonelli, Member of the State Board of Equalization'; that another job ticket corresponding to an item on the Ed Levine ledger had the title 'National Democratic Club of California, Inc.', which item contained postcards advertising 'William G. Bonelli, Member State Board of Equalization'; that another job ticket corresponding to an item on the Levine ledger contained a sample of cards signed by N. H. Snyder as executive secretary of the National Democratic Club of California urging the re-election of William G. Bonelli.
Harry C. McNamara, an examiner for the Los Angeles Postoffice, testified that official records of all checks tendered for postage at the terminal annex station of the Los Angeles Postoffice on May 27, 1954, disclosed a check coming into the postoffice on that date in the amount of $1,200; that the maker of the check was the National Democratic Club; that the record further disclosed that the check was tendered either for 60,000 stamps or 60,000 postal cards.
Roland J. Hawkins, office manager for Foster and Kleiser Company, testified as to a contract dated February 8, 1950, in the amount of $2,336 between Nathan Snyder of the National Democratic Club of California and the Foster and Kleiser Company to do outdoor advertising on behalf of William G. Bonelli of the State Board of Equalization; that this contract was signed 'National Democratic Club of California, by N. H. Snyder'; that the poster record order showed amounts ordered in various towns in which the panels were to be shown; that a second contract, dated March 16, 1950, in the amount of $2,342.45 was also entered into between his company had Nathan Harris Snyder to do advertising for William G. Bonelli of the State Board of equalization; that the customers' ledger sheet showed that on February 9th the company had received a check for $2,336 from the National Democratic Club, $500 from Nathan Harris Snyder on March 17, 1950, and a check for $2,342.45 from the National Democratic Club on March 28th. Harry M. Horner, assistant manager of the Second and Spring Streets Branch of the California Bank, testified that the signature card of the National Democratic Club of California showed that only N. H. Snyder was authorized to draw funds from the bank account of the National Democratic Club of California and that the commercial ledger sheets of the account showed that checks in the amounts of $2,342.45 and $2,336 were deducted from the account on March 28, 1950, and February 9, 1950, respectively, and $500 on March 7, 1950.
Appellant's first contention is that the conspiracy indictment was found and returned by a body which had no legal or constitutional authority to act as a grand jury. The record shows that on February 6, 1956, the 1955 San Diego grand jury presented its final report and it was accepted by the court. However, the court ordered this grand jury to remain operative and its tenure in office was extended to March 5, 1956. Immediately thereafter, on the same day, the court reconvened and the grand jurors for 1956 were empaneled, but the oath was not administered. On March 21, 1956, the 1955 grand jury returned the indictments herein. The 1955 grand jury was then dismissed and the 1956 jury was sworn. Appellant contends that when the 1956 grand jury had been empaneled on February 6, 1956, the 1955 grand jury was no longer an official body and had no legal authority to find or return an indictment. Citing Halsey v. Superior Court, 152 Cal. 71, 91 P. 987. However, in that case the court held that section 210 of the Code of Civil Procedure only limits the time in [315 P.2d 944] which persons selected shall serve for the purpose of drawing and empaneling of a jury and imposes no limitation whatever upon the life of a jury, either grand or trial, once regularly drawn and empaneled. In In re Gannon, 69 Cal. 541, 11 P. 240, it is held that a grand jury legally constituted may continue to act until dissolved by operation of law or by an order of court. In the instant case, the court specifically stated that the 1955 grand jury was to continue in force, and as the 1956 grand jury was not sworn until after the return of the indictments herein the 1955 grand jury did not cease to function prior to the return of the indictment due to either an order of court or by operation of law. The minutes of the court clearly show that the intent of the court was that the 1955 grand jury was to remain operative until the return of the indictment herein. It further appears that the appellant presented this contention in proceedings for a writ of prohibition in this court, 4th Civil No. 5424, and that his petition was denied. This issue was then determined and is final. People v. Lancellotti, 147 Cal.App.2d 723, 305 P.2d 926.
The next contention of appellant is that the evidence is legally insufficient to support the verdicts as to counts two and three of the conspiracy indictment and said verdicts were contrary to law. It is stated that no conviction could result except upon proof of a conspiracy and an overt act committed sometime between March 21, 1953, and the date of the indictment. However, as is said in People v. Hess, 104 Cal.App.2d 642, 678, 234 P.2d 65, 88:
'While the authorities are in conflict as to when the statute of limitations operates as a bar to prosecutions for conspiracy, the majority favor the view that although the conspiracy was formed prior to the statutory period of limitations, the prosecution is not barred where an overt act in furtherance of the conspiracy was committed within that period. The California view apparently is that a conspiracy is a continuing offense. * * *
There is ample substantial evidence herein that overt acts alleged in counts two and three of the indictment were not beyond the statute of limitations.
Appellant states that he was not mentioned in any overt act specified in the indictment. However, the rule is that one conspirator is responsible for the acts and declarations of his co-conspirators committed in furtherance of the conspiracy. People v. Harper, 25 Cal.2d 862, 870, 156 P.2d 249; People v. Robinson, 43 Cal.2d 132, 140, 271 P.2d 865. The acts and declarations of one conspirator in furtherance of the conspiracy are admissible against his co-conspirators and it was for the jury under all the evidence to determine when the alleged conspiracy had its inception and when it terminated. People v. Kynette, 15 Cal.2d 731, 759-760, 104 P.2d 794. The evidence shows that the Long Beach and San Diego campaign collectors sent checks payable to the Aldine Printing Company, the Woolever Press and the Allied Printing Company, which checks were used on behalf of Bonelli's campaign. The evidence as to count three of the conspiracy indictment shows that contributions for Bonelli were solicited and received from liquor licensees and were given by them in 1950 and 1954, some being made payable to the National Democratic Club. While most of the expenditures from the funds received by appellant were made in 1950, moneys were collected for the same purpose in 1954. As is said in People v. Steccone, 36 Cal.2d 234, 237-238, 223 P.2d 17, 19:
'As a general rule, a conspiracy can only be established by circumstantial evidence 'for, as the courts have said, it is not often that the direct fact of an unlawful design which is the essence of a conspiracy can be proved otherwise than by the establishment of independent facts, bearing more or less closely or remotely upon the common design (5 Cal.Jur. 521); and it is not necessary to show that the parties met and actually agreed to undertake the performance of the unlawful acts (citing authority), nor that they had previously [315 P.2d 945] arranged a detailed plan * * * for the execution of the conspiracy (citing authority).' People v. Sampsell, 104 Cal.App. 431, 438-439, 286 P. 434, 437.'
There is substantial evidence in the record before us to support the verdicts as to counts two and three of the conspiracy indictment.
Appellant next contends that the court committed prejudicial error in permitting the introduction into evidence over objection of testimony of numerous witnesses and exhibits relating to activities of the Southern California Spirits Foundation, the Souther California Business Men's Association and the Research and Public Relations Fund. However, this evidence was relevant to prove the fact of a conspiracy, as Calhoun, who was connected with these organizations, was named as a co-conspirator in the conspiracy indictment herein. Any testimony which was relevant to prove the fact of the conspiracy was properly received and the weight and sufficiency of such evidence was for the jury. People v. Collier, 111 Cal.App. 215, 237, 295 P. 898. No prejudicial error was committed by the court in admitting the questioned evidence.
The next contention of appellant is that the evidence is legally insufficient to support the verdict as to either count one or count two of the perjury indictment and that said verdicts are contrary to law. This contention is likewise without merit.
In People v. Casanova, 54 Cal.App. 439, 442-443, 202 P. 45, 47, the rule is stated as follows:
'The statute respecting the quantum of evidence necessary in perjury cases will be satisfied, if there be the testimony of one witness to facts that are absolutely incompatible with the innocence of the accused, corroborated by circumstances which, of themselves and independently of such directly inculpatory evidence, tend, with a reasonable degree of certitude, to show that the accused is guilty as charged. 'Upon a trial for perjury direct evidence is not limited to a denial in ipsissimis verbis of the testimony given by the defendant, but includes any positive testimony of a contrary state of facts from that sworn to by him at the former trial, or which is absolutely incompatible with his evidence, or physically inconsistent with the facts so testified to by him.' People v. Chadwick, 4 Cal.App. [63], 70, 87 P. [384], 387. See, also, People v. Parent, 139 Cal. 600, 73 P. 423, and People v. Hill, 36 Cal.App. 574, 172 P. 1114.'
The testimony relative to the Foster and Kleiser contracts in 1950 shows that the contract for Bonelli's outdoor advertising campaign were signed by appellant, that Foster and Kleiser received the sum of $2,336 from him, that he was the only person authorized to withdraw funds from the club account, and that the said sum was expended in the Bonelli campaign. The evidence further shows that many of the checks collected from liquor licensees were endorsed by the appellant and applied to payment of Bonelli's campaign expenses. There is substantial evidence showing the falsity of appellant's testimony before the grand jury when he testified that there were no expenditures by the National Democratic Club, directly or indirectly, made on behalf of Mr. Bonelli's campaign, that he had not spent any money directly for Mr. Bonelli, and did not give any money to anybody that was to be used for Mr. Bonelli.
Appellant argues that the court committed prejudicial error in denying his offer to prove other portions of his testimony before the 1954 and 1955 grand juries given in connection with the alleged perjurious testimony. This contention is without merit. At the trial herein portions of appellant's testimony before the 1954 and 1955 grand juries, incorporated in the indictment, were testified to by the official reporter of the proceedings. On cross-examination of the witness, appellant offered [315 P.2d 946] to prove other portions of appellant's testimony before certain grand juries from which the charged portions were taken. After a discussion in the court's chambers as to the materiality of this offered evidence, an offer of proof was made by appellant and denied by the court. In his offered testimony appellant stated that to his knowledge no money in the 1954 campaign went to any efforts to publicize Bonelli's campaign; that the Aldine Printing Company did the bulk of the printing for the National Democratic Club; that he never instructed anyone to make their checks payable to the Aldine Printing Company; that he endorsed checks payable to the Mexican Village, dated June 7, 1954, one from Jerry's 99, Coronado, dated June 8, 1954, one from Bocardo's 800 Club in the amount of $100, dated June 5, 1954, and one drawn on Albert Brum, dated May 19, 1954. Appellant offered to prove that at the time he was asked the first question which appears in the charging portion of count one of the perjury indictment that the deputy district attorney was showing appellant 1954 checks. Appellant further testified that the only support that he could recall that was given to Bonelli was on a slate of candidates; that to his knowledge Dorothy Hall did not turn over any cash or checks to him in 1954; that his organization might have supported Bonelli in 1950 on a 'slate mailing or something like that'; that at no time did anyone ask him to give any money on behalf of William G. Bonelli except on a 'slate mailing.'
Section 1854 of the Code of Civil Procedure provides that when part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by the court; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing, which is necessary to make it understood, may also be given in evidence.
Only the charging portions of the perjury indictment were read into evidence and they were complete in themselves and their full meaning could be understood without more. The defendant Snyder's answers that none of the moneys that were spent by the National Democratic Club paid for any advertising on behalf of William G. Bonelli, that he wrote no check for any such thing, that there were no expenditures, directly or indirectly, made on behalf of Mr. Bonelli's campaign, that he had not spent any money directly for Mr. Bonelli, that he had never given any money to anybody that was to be used for Mr. Bonelli, show on their face their full meaning.
In People v. Gilliland, 39 Cal.App.2d 250, 260, 103 P.2d 179, 184, it was held that section 1854 of the Code of Civil Procedure is not applicable where the evidence sought to be introduced does not relate to the same subject inquired into on direct examination and is not 'necessary to make it understood.' In State v. Archuleta, 29 N.M. 25, 217 P. 619, it was held (Syllabus 1):
'Reporter at former trial, where perjury committed, may read in evidence such portions of record necessary to support crime; accused cannot require state to introduce entire record of former trial nor require reporter to read in evidence entire record; accused may introduce unread portion of record of former trial as part of his case.
'In a prosecution for perjury, a reporter who took the evidence in the former trial, where the perjury was committed, may be allowed to read such portions of the evidence as may be necessary to support the assignments of perjury. The defendant may not require the state to put in all of the evidence given on the former trial, nor may he, on cross-examination of the reporter, require him to read all of the testimony, if objected to as not proper cross-examination. He [315 P.2d 947] may, of course, introduce the remainder of the testimony as a part of his case.'
In Vance v. Richardson, 110 Cal. 414, 42 P. 909, it was held that the rule stated in section 1854 of the Code of Civil Procedure refers entirely to cross-examination, and in People v. McCoy, 25 Cal.2d 177, 187, 153 P.2d 315, 320, it was held:
"The rule that where part of a conversation has been shown in testimony the remainder of that conversation may be brought out by the opposing party * * *, is necessarily subject to the qualification that the court may exclude those portions of the conversation not relevant to the items thereof which have been introduced."
Appellant claims that the court committed prejudicial error in permitting the introduction of evidence that appellant refused to testify in the case of People v. Calhoun, Cal.App., 310 P.2d 94, and in its instructions concerning said evidence. By indictment No. 195342, Bernard P. Calhoun and others, together with appellant Nathan Harris Snyder and others, as unindicted co-conspirators, were charged with conspiracy to violate section 5002.5 of the Elections Code and conspired to pervert or obstruct justice. The matter proceeded to trial in San Diego county in the course of which appellant was called as a witness for the prosecution and after having been sworn, refused to testify upon the ground of sections 1323 and 1324 of the Penal Code and section 2065 of the Code of Civil Procedure. Over objection by appellant, the trial court permitted this fact to be introduced in evidence and the court's ruling is assigned as error. Undoubtedly, appellant had the right to refuse to testify in the Calhoun trial as in any other criminal prosecution in which he was named as defendant, and the fact that he refused to testify in the Calhoun trial creates no presumption or inference of guilt in that or in the instant action. We conclude that this evidence was improperly admitted. However, the record shows that the court instructed the jury in this connection as follows:
'In deciding whether or not to testity, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove every essential element of the charge against him, and no lack of testimony on the defendant's part will supply a failure of proof by the Epople so as to support by itself a finding against him on any such essential element.
'You are instructed that those accused of crime are competent as witnesses only at their own request and not otherwise. You are therefore not to draw an inference against the Defendant Nathan Harris Snyder because he refused to testify in the case of People versus Calhoun on this ground. However, you are further instructed that failure to testify on the ground that an answer might tend to incriminate may be considered by you in the light of all other proved facts in deciding the question of the defendant Nathan Harris Snyder's guilt or innocence. Whether or not his failure to testify in the case of People versus Calhoun on the ground of self-incrimination shows a consciousness of guilt and the significance to be attached to such a circumstance are matters for your determination.'
Under the circumstances and the instruction of the court as to this matter, we find no prejudicial error.
Appellant further contends that the court erred in giving its special instruction. The record shows that in commenting on the questioned instruction the court said:
'Now I come to this long instruction which was drawn yesterday and I will give you that first. You will find that at the top of the heap and the others are in order as I give them to you here.
'Ladies and Gentlemen of the jury: This instruction I drew up after argument [315 P.2d 948] of counsel in this case and I think contains certain matters which should be explained to you.'
Appellant argues that by remarking that the instruction could be found 'at the top of the heap' and 'I drew it up after argument of counsel', the court focused the attention of the jury upon it as having some special significance. We are not impressed with this argument. The jury was instructed that 'If in these instructions any rule, direction or idea be stated in varying ways, no emphasis thereon is intended by me, and none must be inferred by you. For that reason you are not to single out any certain sentence, or any individual point or instruction, and ignore the others, but you are to consider all the instructions as a whole, and are to regard each in the light of all the others. The order in which the instructions are given has no significance as to their relative importance.' It is apparent that the court did not focus the attention of the jury on any one of the instruction which it gave.
It is further argued that, in effect, the court instructed the jury that each of the over acts of Bonelli as set forth in the indictment must be considered by them regardless of whether said acts were proved or not. The criticized language used by the court was as follows:
'Although you cannot bring in a verdict as to him personally, each and every act of the defendant Bonelli, as they pertain to the issues in this case, as set forth in the indictment, must be considered by you in returning a verdict in this case, if in your opinion a conspiracy has been proven by the evidence in this case.'
It is apparent that the jury was instructed to consider the overt acts if in their opinion a conspiracy had been proved. No prejudicial error appears in this connection nor in the following remarks of the court:
'Eventually, I imagine, Mr. Bonelli will be in this court and be tried, but of course when this may occur the Court is just as much in the dark as you are, under the present existing circumstances, but if and when he is returned to this jurisdiction he will receive a fair and impartial trial as I have tried to give the two defendants now under consideration.'
It is conceded by appellant that there was a conspiracy organized by Bonelli to violate section 5002.5 of the Elections Code and it was obvious that Bonelli was not present in court and was not being tried.
Finally, it is argued that the court erred in permitting certain cross-examination of character witnesses called by the defense and in failing to properly instruct the jurors on the purpose and effect of the cross-examination of character witnesses by the district attorney. The only question which is claimed to error is a question put to Judge Carter, one of the character witnesses, as follows:
'Q. Now, Judge Carter, had you heard that in 1955 after Mr. Snyder completed his testimony at the San Diego County Grand Jury one of the Grand Jurors who had heard it called his testimony a fairy tale?'
It is said in People v. Lyon, 135 Cal.App.2d 558, 288 P.2d 57, 72, (quoting from People v. McKenna, 11 Cal.2d 327, 335-336, 79 P.2d 1065):
"In the absence of a showing of bad faith it is always within the scope of legitimate cross-examination to ask a character witness whether he had heard the person whose reputation is under investigation accused of conduct inconsistent with the character attributed to him by the witness."
In commenting on the law as to character testimony, the trial court said:
'As I understand the law on character testimony, it is this: A witness wishing to testify as to the character of a defendant cannot testify as to his own personal belief as to the character and reputation of that witness or that defendant. Character testimony is [315 P.2d 949] based on hearsay. It has got to be what the general reputation of the defendant is in the community, from what the witness has heard others say; not his own personal opinion, and on cross-examination the other side is entitled to ask whether the witness has heard of any specific instance which may be against the defendant. I say 'may' and, of course, the District Attorney or whoever asks the question on cross-examination has to do so in good faith and I have to assume that in this case.'
It is argued that by these remarks the judge was assuring the jury that the specific instance of misconduct might have occurred and that this constituted prejudicial error. We find no merit in this argument.
Judgments and orders denying motions for new trial affirmed.
GRIFFIN, Acting P. J., concurs.