2 Cal.2d 141, 3708, People v. Deysher

Docket Nº:3708
Citation:2 Cal.2d 141, 40 P.2d 259
Party Name:People v. Deysher
Attorney:[7] Edmund J. Thomas, Jr., Joseph K. Hawkins, Jesse H. Steinhart and John J. Goldberg for Appellant. [8] U. S. Webb, Attorney-General, and William F. Cleary and Seibert L. Sefton, Deputies Attorney-General, for Respondent.
Case Date:December 27, 1934
Court:Supreme Court of California

Page 141

2 Cal.2d 141

40 P.2d 259

THE PEOPLE, Respondent,



Crim. No. 3708.

Supreme Court of California

December 27, 1934

In Bank.

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[Copyrighted Material Omitted]

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Edmund J. Thomas, Jr., Joseph K. Hawkins, Jesse H. Steinhart and John J. Goldberg for Appellant. U.S. Webb, Attorney-General, and William F. Cleary and Seibert L. Sefton, Deputies Attorney-General, for Respondent


[40 P.2d 260] THE COURT.

This cause was taken over by this court after decision in the District Court of Appeal, First Appellate District, Division One, solely because the appeal, so far as research has disclosed, presents for the first time a conviction under section 71 of the Penal Code, which section declares it to be a penal offense, punishable by fine or imprisonment in the state penitentiary, for a public officer to be "interested" in public contracts in a manner prohibited by law. Upon an examination of the entire record, and the authorities, we are satisfied with the appellate court's reasoning and conclusion that the appellant's conduct did violence to the provisions of the cited code section. We therefore adopt as the decision of this court the opinion of the District Court of Appeal prepared by Mr. Justice Gray pro tem. It reads:

"The grand jury of Marin county, by an indictment, containing 21 counts, each pleading a separate contract, accused appellant of as many crimes of being interested, while supervisor, in contracts for the improvement of county roads. Upon arraignment, appellant pleaded 'not guilty' to each count. Counts 11 and 14 were dismissed upon the prosecution's motion, during the trial. After a trial of ten days, the jury returned a verdict finding appellant guilty on counts 2, 5 and 15, based upon work ordered by him, and not guilty on three counts, based upon work ordered by

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other supervisors, and disagreed as to the remaining counts, of which four were based upon contracts awarded by the board, after receipt of the bids and nine upon work ordered by other supervisors. His motion for a new trial having been denied, he was sentenced to imprisonment in the state prison at San Quentin, concurrently, on each of the three counts. He appeals from the order denying a new trial and from the judgment of conviction, urging as grounds for reversal, (1) erroneous admission of evidence, (2) insufficiency of the evidence to support [40 P.2d 261] the verdict, (3) erroneous refusal of two requested instructions, (4) variance as to count 5 and (5) misconduct of the prosecutor in closing argument.

"Section 71 of the Penal Code provides for the punishment of 'every officer ... prohibited by the laws of this state from ... being interested in contracts ... who violates any of the provisions of such laws'. Section 920 of the Political Code declares that '... county ... officers must not be interested in any contract made by them in their official capacity, or by any body or board of which they are members ...'. Section 4322 of the last code states that 'no member of the board of supervisors must be interested, directly or indirectly ... in any contract made by the board or other person, on behalf of the county, for ... the ... improvement of roads ...'. (Italics ours.) The evidence, without conflict, proves that appellant, as supervisor, on four different occasions, verbally ordered E. A. Forde, as president of Highway Builders, Ltd., a corporation, to improve three different roads, within his district; that, in doing such work, the corporation subsequently rented road equipment from a copartnership, of which appellant was one of two members; that appellant approved claims for such work totaling $2,124.40; and that the corporation paid the copartnership, as rent for equipment, a total of $1,219.50. The only element of the offenses charged in counts 2, 5 and 15, as to which there is any question as to proof, is appellant's interest in the road contracts. Such interest, if any, must have arisen by the renting of the equipment subsequent to the letting of the road contracts.

"Neither the briefs nor our own investigation has disclosed any case deciding what facts sufficiently establish

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such an interest in a public contract as will subject an officer to punishment under said section 71 or similar statute. But aid can be obtained from civil cases considering the sufficiency of evidence to prove such an interest of an officer in a public contract as to invalidate it. Outside of a...

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