Calhoun v. Superior Court In and For San Diego County

• Decision Date: 30 December 1955
• Citation: 291 P.2d 474,46 Cal.2d 18
• Court: California Supreme Court
• Parties: Bernard P. CALHOUN, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SAN DIEGO, and Honorable John A. Hewicker, Judge of the said Superior Court, Respondents. L. A. 23779.

Page 474

291 P.2d 474

46 Cal.2d 18

Bernard P. CALHOUN, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SAN DIEGO, and Honorable John A. Hewicker, Judge of the said Superior Court, Respondents.

L. A. 23779.

Supreme Court of California, In Bank.

Dec. 30, 1955.

Rehearing Denied Jan. 25, 1956.

Mahedy & Schall, San Diego, John W. Preston and Charles H. Carr, Los Angeles, for petitioner.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., James Don Keller, Dist. Atty., Barton C. Sheela, Jr., and Jack R. Levitt, Deputy Dist. Attys., San Diego, for respondents.

EDMONDS, Justice.

Bernard P. Calhoun was indicted by the grand jury which accused him of having conspired with others to commit certain acts in violation of the Elections Code. By this proceeding, he is endeavoring to prohibit the superior court from requiring him to stand trial upon these charges.

In count one of the indictment, Calhoun is alleged to have conspired with William G. Bonelli and others to commit the crime of soliciting, asking and receiving contributions from persons licensed by the Board of Equalization to sell alcoholic beverages. These contributions were solicited and received, it is charged, for use in campaigns for the reelection of Bonelli as a member of the Board of Equalization.

The second count asserts that Calhoun and Bonelli, with others, conspired 'to do acts injurious to the public morals and to pervert and obstruct justice', Pen.Code, § 182, subd. 5, in that they agreed together to use Bonelli's official position as a member of the Board of Equalization for their private gain by collecting funds from licensees and applicants for licenses from the Board of Equalization.

Other acts characterized as being contrary to Section 182, subdivision 5 of the Penal Code are specified in count three of the indictment. In this count, Calhoun and Bonelli are charged with having agreed to prepare false papers and records for fraudulent purposes upon trials, proceedings and inquiries authorized by law.

Principally, the evidence presented to the grand jury pertains to contributions made by wholesale licensees and by retail licensees in San Diego and Los Angeles Counties. Similar operations were carried on in Orange, Riverside and San Bernardino Counties. This evidence, with the inferences reasonably to be drawn from it, shows the following pattern of activity in San Diego County. Substantially the same plan was followed in the other counties.

In 1950 and 1954 Bonelli was a candidate for reelection to the Board of Equalization. Shortly before the 1950 campaigns, William Cook, who was 'public relations man' for Bonelli, met with Charles E. Berry, Liquor Control Officer of San Diego and Imperial Counties. They discussed the idea of soliciting campaign contributions from retail liquor licensees. At their request Al Tossas, a former liquor salesman, agreed, for certain compensation, to take charge of work of making these solicitations. Berry, Cook, Frank Bompensiero and Ray McCullough assisted Tossas.

Tossas was furnished with 'pretty thorough' lists of bars, liquor stores, markets, hotels, and similar establishments with a notation beside the name of the licensee as to the mount of the 'contribution' expected from him. Following the 'canned sales talk,' Tossas would ask the licensee if he thought that Bonelli was 'head of the liquor industry' and if it were not worth the amount specified on the list for him to have Bonelli reelected. The 'contribution' almost invariably made was accepted with the understanding that it was to promote Bonelli's campaign.

Many of the licensees solicited had liquor violation charges then pending against them. Although Tossas was specifically instructed by Cook not to say that the contribution would affect the pending charges, those whose licenses were being questioned gave 'more generously' than others.

Cook instructed Tossas to get a 'certain amount' of cash. Checks were to be made payable to the National Democratic Club of California, the Aldine Printing Company, or the Woolever Press. A check, made payable to the Bonelli campaign fund, was not accepted. Some such checks were returned to the licensee with the request that it be made payable to one of the designated payees.

From time to time Cook told Tossas that a sufficient number of checks drawn in favor of one of the three designated payees had been received and that thereafter checks should be made out to one of the other payees. All cash and checks received by Tossas, which he estimated amounted to between $15,000 and $20,000, were turned over by him to Cook. There is no direct evidence as to how the payees obtained these checks but the record shows that they received some of them. Cook paid Tossas $1,500 as compensation for his services.

Early in 1954, Joseph Cannon set up campaign headquarters in San Diego, the operation of which he later turned over to Dorothy Hall Jahant, who had done the same work in the 1950 campaign. Ray McCullough was placed in charge of obtaining contributions. Collections were made from licensees named in lists furnished to McCullough, 'in the same manner' as in the 1950 campaign. McCullough was assisted by Girolamo Cusenza and Cannon. Some of the contributions obtained by them were made in cash. They also received checks made payable to one of them. These checks were cashed by them and the proceeds turned over to McCullough.

The record also shows that checks were received made payable to the National Democratic Club of California, the Aldine Printing Company, or the Woolever Press. A check from the Mexican Village, a liquor licensee, which had been made payable to the Bonelli campaign fund was returned with directions to make it payable to one of the named payees. Other checks from liquor licensees, drawn in favor of the campaign fund, were received by Mrs. Jahant and turned over to Cannon or McCullough.

Approximately $8,000 was received by McCullough. Cash and checks received by him were placed in sealed envelopes and given to Mrs. Jahant for delivery to the National Democratic Club of California. She testified that she delivered one such envelope to the secretary of Nate Snyder, secretary-treasurer of the club, and one to Bonelli's secretary. Charles Berry testified that Nate Snyder was the person designated to receive contributions to that organization.

In the Long Beach area members of the Long Beach Tavern Association collected contributions from licenses. The money was solicited for use in Bonelli's campaign and to defeat Proposition 3. These purposes were decided upon in tavern associtation meetings in which Albert Eisenberg, the association's attorney, acted as the representative of Bonelli. Contributions were made by checks made payable to the National Democratic Club of California, the Aldine Printing Company, the Woolever Press, and a fictitious company designated as the 'Allied Printers' or 'Allied Printing Company'.

Nate Snyder described the National Democratic Club of California as an organization consisting of a board of directors who were its officers. Leonard Wilson was president; R. S. Sparks, vicepresident; and Snyder, secretary-treasurer. According to Snyder, he had been authorized by the board to make disbursements to various candidates for political offices, largely in his own discretion. He was the only person authorized to write checks on the corporate account. The corporation, he said, did not solicit contributions. He testified that he had endorsed checks from retail liquor licensees but denied having paid out any money toward Bonelli's campaign except for advertisements for a slate of candidates which included Bonelli's name.

Leonard Wilson told the grand jury that only one week prior to the hearing was he told that he was president of the National Democratic Club of California. He had no knowledge of the functioning of that organization, he said; he had not authorized the use of his name as its president nor the expenditure of funds by Snyder and, as far as he knew, he had never been a member of the club.

With regard to contributions by wholesale licensees, the record shows these facts:

The Southern California Business Men's Association is a non-profit organization of men in the hotel, restaurant, grocery, drug, distilled spirits, beer, wine, manufacturing and retail businesses. Dues are contributed regularly by its members. This money is expended for trade publications and similar purposes. Some political contributions are made, but they consist generally of printing in trade publications of slates of candidates endorsed by the association. At the times of the Bonelli campaigns, Calhoun was one of its fifty directors and Albert Weigel its executive vice-president.

Calhoun also is general counsel and 'public relations man' for the Southern California Spirits Foundation, an association comprised of all but one of the major wholesale liquor distributors in the Los Angeles area. He had no authority to write checks on the Spirits Foundation account, but he was given carte blanche in the political use of its funds. He often received signed checks made out in blank. The association paid regular dues to the Business Men's Association.

At a meeting called by Arthur Samish in 1947, it was decided to establish a 'Research and Public Relations Fund,' to receive contributions for use in campaigns affecting the alcoholic beverage industry and to support some political candidates. Originally, this was a bank account of the Business Men's Association; later the account was also used by nonmembers as a depositary for contributions.

At first the expense of the campaign in opposition to a proposed business tax was paid from this fund. Later opposition to a tax on alcoholic beverages was financed from it. Money was generally collected, when a need was anticipated, by dues levied against those participating in the maintenance of the fund.

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