Opinion
Appeal from Superior Court, Los Angeles County; Sidney N. Reeve, Judge.
Thomas P. Gere was convicted of grand larceny, and appeals. Affirmed.
See, also, 221 P. 689.
COUNSEL
Cooper, Collings & Shreve, of Los Angeles, for appellant.
U.S. Webb, Atty. Gen., and John W. Maltman and H. H. Linney, Deputy Attys. Gen., for the People.
OPINION
HOUSER, J.
This is an appeal from a judgment of conviction on a charge of grand larceny and from an order denying defendant’s motion for a new trial.
There were five counts in the indictment under which defendant was prosecuted. On motion of the district attorney three of the counts were dismissed before the trial commenced, and a fourth count was likewise dismissed after the evidence with reference thereto had been introduced.
The point is here raised that the trial court erred in admitting any evidence as to the count which was dismissed during the pendency of the trial; that all such evidence should have been stricken out, and the jury instructed that it should not be considered in arriving at a verdict in the case. The larceny of which defendant was convicted was effected by means of a fraudulent stock brokerage deal which is described in the case of People v. Berry (Cal. Sup.) 215 P. 74, as follows:
"The defrauding scheme is what is known in police parlance as the ‘pay-off game’; and when reduced to its brutal last analysis consists in making some ‘honest’ tourist to the beautiful shores of California believe that he can make a huge fortune by ‘playing’ Wall street through some local ‘brokerage house,’ and, in any event, he can escape liability for loss, if he loses, by the use of fictitious or ‘phony’ checks or ‘credit slips.’ He ‘wins’ anywhere from $10,000 to a quarter of a million dollars; some trouble arises with the ‘brokerage house’ in the matter of paying the ‘winnings,’ and this trouble is usually over the ‘credit slips,’ in that the money ‘won’ cannot be paid until ‘credit is established’ in order that the ‘brokerage house’ may know that the ‘victim’ could have paid his losses if he had lost; the victim usually goes hurriedly back to his home town and there converts everything available into current funds; more hurriedly he returns here to collect his ‘winnings’; another ‘play’ is made; some ‘mistake’ is made therein and all is ‘lost’; he is then sent to some far off city to wait the arrival of his associates and all will be regained by ‘playing’ Wall street again on the money to be furnished by his associates— who never come."
In the count of the indictment which resulted in the conviction of defendant it appeared that defendant, with the aid of at least two confederates, successfully obtained the money alleged to have been stolen, from a man by the name of Herr, and in the count of the indictment on which evidence was heard, but which count was dismissed on motion of the district attorney, although defendant’s personal participation in the commission of that offense was not shown, it very clearly appeared that almost identical means to defraud a man named Donahue were used by the same men who had assisted defendant in the Herr transaction. Under appropriate instructions the evidence regarding the Donahue transaction was permitted to go to the jury on the theory that it tended to prove a conspiracy to commit the crime of grand larceny and that defendant was one of the conspirators. In the case of People v. Berry, supra, Berry was shown to have had active dealings with several different persons, including this defendant and each of his two alleged confederates, in connection with "stock brokerage" matters of a similar nature to that herein set forth; and the Supreme Court, in passing upon the question of whether or not a conspiracy was established, said that the evidence demonstrated the existence of a conspiracy and that there was no doubt "that evidence of each and all of the enumerated transactions, whether covered by the indictment or not, was admissible under the similar offense rule as tending to prove a conspiracy. The interlocking of the participants in the various frauds, their common use of the same fictitious entities, their uniform insistence that their banking needs in carrying out their numerous swindling operations should be intrusted solely to the defendant as assuring an element of safety, were facts justifying an inference that a general conspiracy existed."
The evidence here as to the Donahue transaction, being based upon a specific count in the indictment against defendant, was unquestionably originally admissible, and the fact that that particular count was dismissed did not necessarily render the evidence received in support of such count improper for the consideration of the jury, if such evidence tended to prove the existence of a general conspiracy to commit grand larceny, together with defendant’s connection therewith. An examination of the evidence herein discloses the fact that to all intents and purposes the system employed in the matter in which Herr was the victim was identical with that used with reference to Donahue. The same persons, with the exception of this defendant in the second affair, were involved in each of those transactions. Judging from the evidence in this case, as well as from the conclusion reached by the jury herein, a conspiracy undoubtedly existed as among defendant and his confederates to commit the crime of grand larceny as to Mr. Herr’s possessions. The evidence as to the Donahue matter very plainly indicates that a conspiracy also existed among certain persons to feloniously obtain money and property from Mr. Donahue, and that such nefarious object was effected on or about January 23, 1920. Twelve days later, according to the evidence, several of the persons concerned in the Donahue case, together with this defendant, succeeded by means similar in all respects to those employed in that case in larcenously obtaining a large sum of money from Mr. Herr. The conspiracy being established in the first case and defendant’s connection with a similar conspiracy consisting of the same persons, together with defendant, in the second case, the inference is almost irresistible that the conspiracy was continuous, as far at least as between the first and the second transactions, and the rule is well settled that one who joins a criminal conspiracy is to be considered as a party to all acts theretofore or thereafter committed by any or all of his coconspirators in furtherance of the conspiracy. 12 C. J. p. 579, and cases therein cited. Assuming that this defendant became a member of the conspiracy after the Donahue transaction occurred would constitute no valid objection to the introduction, on the trial of this case, of evidence relating to such transaction for the purpose of showing the existence of the conspiracy (People v. Schmidt, 33 Cal.App. 426, 165 P. 555), even though such evidence tended to establish the commission of a similar offense (Dahl v. United States, 234 F. 618, 148 C. C. A. 384).
Defendant was arrested for the commission of the several offenses charged in the indictment on August 13, 1923, and his arraignment thereon followed two days later. Section 1382 of the Penal Code provides that, "unless good cause to the contrary is shown," the court must order the dismissal of a criminal action "if a defendant, whose trial has not been postponed upon his application, is not brought to trial within sixty days after the finding of the indictment." It is contended by appellant that because against defendant’s objection thereto, the trial of his case was postponed by the court beyond the 60-day period fixed by the statute, defendant was entitled to have the action against him dismissed, and that in the circumstances the court erred in proceeding with the trial. It appears from the record herein that, after the arraignment of defendant, the action was originally set for trial within the time provided by the statute, but that before the date fixed for the trial arrived a petition for a writ of habeas corpus in behalf of defendant and relating to this action was presented to the District Court of Appeal, in which proceeding briefs were filed by respective counsel, after which the matter was taken under advisement by said court until November 16, 1923, when, by its order, the writ was discharged. On November 7, 1923, which was the date on which the case had been set for trial following several previous postponements thereof, the hearing was continued by the lower court until November 21st, at which time the trial was commenced. The record also discloses the fact that the reason for the said several continuances resulting in the action not being tried within the statutory 6O-day period after defendant’s arraignment, was that the said habeas corpus proceeding was pending in the District Court of Appeal. That proceedings of this nature constitute "good cause" for failure to bring an action to trial "within sixty days after the finding of the indictment" is indicated in the case of Chrisman v. Superior Court (Cal.App.) 219 P. 85, and in the same case, on petition for rehearing before the Supreme Court reported in 219 P. 85, in passing upon the matter before the court, it is said:
"Where it is shown, in response to the petition for a writ of mandate, that there was in fact good cause for the delay in the trial of the case, it is immaterial whether or not such a cause was satisfactorily shown to the trial court, for the appellate court will not direct the dismissal of a case where it is shown to its satisfaction that the delay in the trial of a case was for good cause.
"The refusal of the District Court of Appeal to issue a peremptory writ of mandate amounts to a determination by that court that the affidavits on behalf of the respondents show good cause for the delay, which is not overcome by the showing made by the petitioner."
Defendant instituted the habeas corpus proceedings in the District Court of Appeal for the ultimate purpose of testing the right of the superior court to proceed with his trial— his contention being that because the finding of the indictment was of date September 8, 1920, and that defendant was not arrested until August 13, 1923, under the terms of the statute to which reference has heretofore been made (section 1382, Pen. Code), the court was without jurisdiction, and consequently that the action should be dismissed and defendant given his liberty. After a consideration of the facts with reference to the delay as shown by the petition and the return to the writ in that proceeding, it was determined by this court that "good cause" was shown to exist for the delay up to that time, and the writ was discharged. Application of Gere (Cal.App.) 221 P. 689. All the postponements of the trial of defendant after his arrest were directly caused by his own act in petitioning this court for the writ of habeas corpus. While it may not have been outside the jurisdiction of the superior court (a point which is not herein attempted to be decided) to proceed with the trial of defendant, notwithstanding the pendency of the habeas corpus proceeding, certainly in the circumstances the "good cause" for the delay referred to in the statute was sufficiently present to authorize the several continuances of the trial to a reasonable time after the decision by this court on defendant’s petition for the writ.
Appellant urges the point that the evidence was insufficient to sustain the verdict. The facts of this case cannot have a better general description than those which are given in the case of People v. Berry, supra. It is just possible that in all honesty and in the best of good faith a man might in the nighttime break open a door or a window of another man’s house and thereupon enter the house and remove personal property therefrom; and it is likewise true that persons situated as were the parties involved in this transaction might possibly have acted honestly and in good faith; but, after all, the question of the intention with which the act was performed is one of fact to be determined by the jury. Intention is manifested by the circumstances connected with the offense. Section 21, Pen. Code. If the intention of defendant here was to feloniously deprive Mr. Herr of his property (assuming that the intent was followed by asportation), then the crime of larceny was committed. The jury by its verdict declared against defendant’s contention, and this court has found nothing in the record which would indicate that the jury reached an erroneous conclusion in that regard. The question of the identity of defendant is also raised, but that matter was likewise one for determination by the jury. There being substantial evidence to justify the conclusion that defendant’s identity was clearly established, the court cannot usurp the functions of the jury and hold to the contrary.
Appellant further suggests prejudicial error as against defendant in that, at his request, the court refused to give to the jury certain instructions. The first of these instructions directs attention to some of the evidence given on the trial from which the question might arise as to the nature of the offense, if any, committed by defendant; but, while such instruction was not in terms submitted to the jury, there was another instruction given which adequately covered the situation. The second instruction, which was likewise offered by defendant and by the court refused to be given to the jury, dealt entirely with the sufficiency of the evidence to establish the identification of defendant. While there was no direct instruction given to the jury touching the particular matter contained within the refused instruction, several other instructions, general in their nature, were given to the jury, which were broad enough to thoroughly inform the jury on the legal point in question. The last instruction offered by defendant and which was rejected by the court, in effect advised the jury that, as to expert testimony regarding handwriting, the jury had the right to use its own judgment and decide the fact, not necessarily from the testimony given by any expert, but by the jury themselves from their own consideration of the exhibits before them. Among the instructions given are found several expressions such as "you are the sole and exclusive judges of the weight of evidence and the credibility of witnesses, and it is your function to determine all questions of fact arising from the evidence in the case"; also, "you are not bound to decide in conformity with the declarations of any number of witnesses, which do not produce conviction in your minds, against a less number, or against a presumption of law, or other evidence that satisfies your minds"; also, "the jury are the sole and exclusive judges of the effect and value of evidence addressed to them and of the credibility of the witnesses who have testified in the case."
It appears from the record that the various and sundry examplars of the handwriting of defendant were filed as exhibits in the case. The jury, of course, could have had access to them. If the jury thought that any handwriting expert had been mistaken with reference to his testimony, the jury was told that it was the sole judge of the effect thereof. On the one hand, the jury had the right to believe the testimony of any expert; on the other hand, if the jury disbelieved the testimony of said expert, defendant was not injured. But, in any event, after an examination of the entire cause, including the evidence, this court is of the opinion that, even conceding error, as claimed (which this court is not prepared to do), such error did not result in a miscarriage of justice.
The judgment and the order denying the motion for new trial are affirmed.
We concur: CONREY, P. J.; CURTIS, J.