People v. Calhoun

• Decision Date: 27 March 1958
• Docket Number: Cr. 6111
• Citation: 323 P.2d 427,50 Cal.2d 137
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Bernard P. CALHOUN, Defendant and Appellant.

Page 427

323 P.2d 427

50 Cal.2d 137

The PEOPLE of the State of California, Plaintiff and Respondent, v. Bernard P. CALHOUN, Defendant and Appellant.

Cr. 6111.

Supreme Court of California, In Bank.

March 27, 1958.

Rehearing Denied April 23, 1958.

John W. Preston, Los Angeles, William P. Mahedy, San Diego, and Charles H. Carr, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., James Don Keller, Dist. Atty., and Jack R. Levitt, Deputy Dist. Atty., San Diego, for respondent.

McCOMB, Justice.

Defendant, with William G. Bonelli and certain John Does, was charged in an indictment with conspiring to violate section 5002.5 of the Elections Code. ¹ The indictment alleged that the persons so charged, together with ten unindicted coconspirators, conspired to commit the crimes of soliciting, asking and receiving political contributions, from persons licensed to sell liquor by the Board of Equalization, such contributions being for use in campaigns for the re-election of Bonelli as a member of that board.

In the second and third counts they were charged with conspiring to commit acts injurious to public morals, to pervert and obstruct justice, and to prepare false papers and records for fraudulent purposes for use in proceedings and inquiries authorized by law, in violation of section 182, subd. 5, of the Penal Code. ²

Mr. Bonelli was not available for the trial, and it proceeded as to defendant Calhoun alone. After trial before a jury, he was found guilty on all three counts. He appeals from the judgment and the order denying his motion for a new trial.

The evidence, viewed in the light most favorable to the People, discloses a plan which was followed in various counties in soliciting, receiving and using campaign contributions from liquor licensees in connection with the 1950 and 1954 campaigns of Bonelli for re-election to the Board of Equalization. Checks for contributions from retail liquor licensees were made payable to the National Democratic Club, the Aldine Printing Company, the Woolever Press, and a fictitious company known as the Allied Printing Company. Defendant was general counsel and 'Public Relations Man' for the Southern California Spirits Foundation, an association composed of wholesale liquor distributors whose members paid regular dues which were supposed to be used for certain purposes only.

Another fund existed known as the 'Research and Public Relations Fund,' to which the Spirits Foundation was the largest contributor, but which contained other contributions arranged for by defendant. As a practical matter, defendant exercised control over the expenditure of the money in this fund. On his instructions large amounts were drawn on this fund by checks payable to cash, and other checks were drawn in payment of bills presented by the above-named printing companies and an advertising company for expenses in connection with the Bonelli campaign.

These funds and checks were manipulated in various ways. For instance, the evidence indicated that a check payable to defendant, as trustee, was used to replace several small checks made payable to Aldine and signed by retail liquor licensees.

At the trial 59 witnesses testified for the prosecution and 17 for defendant. The reporter's transcript contains 2498 pages, including 370 pages of testimony by defendant.

The record discloses that defendant spent many thousands of dollars from funds of the Spirits Foundation and Research Fund without direct authorization for the particular expenditures, the checks being made to the same printers and advertisers as were the checks of the retail licensees. None of them showed on their face that they were for Bonelli's campaign, and the way many checks were issued, receipts handled, and entries made on the records may have been designed to conceal that fact.

Defendant ordered a large amount of the printing for Bonelli's campaign, conferred with Bonelli and with the printers, and cashed certain checks and had others issued in their place before paying some of these bills.

In many instances individuals and firms were told to send checks to these printing companies, and later received invoices for printing which they had never ordered or received. Several witnesses testified that they were told to do this by defendant.

Defendant told one Casteel, who offered to make a contribution to Bonelli's 1954 campaign, to make the check payable to the National Democratic Club. When Casteel objected, defendant told him to make it to the Aldine Printing Company and said, 'We will see that you get a bill for printing or something of that sort and that will take care of it.' Defendant admitted telling Casteel how to make a contribution on Bonelli's behalf.

One member of the Spirits Foundation testified that he asked defendant at several meetings where the funds of the Foundation were being spent and was told by several people, and possibly by defendant, that he had 'probably better not know.'

There is a great deal of evidence that checks from liquor licensees, for contributions solicited on Bonelli's behalf, were payable to these printing firms, which were doing large amounts of printing for the Bonelli campaigns, and that defendant played an important part in connection with the solicitation, receipt, and disbursement of these funds which were used for the purpose of securing the re-election of Bonelli.

Defendant was charged not only with soliciting but with receiving such contributions, and the evidence shows that, aside from the dues paid into the Spirits Foundation, he received political contributions from six other concerns and individuals which were used for the benefit of the Bonelli campaigns.

While defendant insisted that he had used the dues paid by the members of the Spirits Foundation strictly in accordance with their authorization and desires, several of them testified that they did not know how he was using this money and that they would not have approved of the way it was in fact used.

Defendant testified that in 1954 he spent more time within Bonelli than in any prior campaign, primarily because of Proposition Number 3; that '* * * it is almost impossible to segregate the two campaigns'; that 'The bills that I paid were bills he (Bonelli) always gave to me and asked if I could take care of. That was the net result. I paid those bills directly to the parties who had sent in the bills and paid them by check'; and that 'I think all of the payments that went for Bonelli's bills came out of the Research and Public Relations Fund.' When asked why he had used this money in the Bonelli campaigns, he replied that he did it because the members of the association had to keep Bonelli on their side; and that 'They had to conduct their business under Mr. Bonelli's direction and the liquor business is very highly regulated and suspensions can be had very easily for violations, intentional or otherwise, many times unintentional.'

Although not separately so stated or argued, defendant's basic contentions are that he was the mere agent of the Spirits Foundation and his acts and conduct in receiving and handling funds and paying bills in connection with Bonelli's campaigns were solely those of such an agent; that these funds came from regular dues paid by the members and were in no way solicited; and that if any conspiracy existed, the evidence is not sufficient to connect him with the acts and conduct of Bonelli and other actors in any such conspiracy.

Defendant's Contentions

First: That the trial court erred in telling the jury that although Bonelli was not present at the trial, the jury would have to try each and all acts committed by Bonelli as though he were present and being tried.

This contention is untenable. It is argued that the court implied that if Bonelli was guilty of conspiring with any of the named but unindicted alleged coconspirators, then defendant would also be guilty; that Bonelli could be guilty and defendant innocent of the crime charged, and it was reversible error 'to indissolubly connect them together'; and that there was no evidence reasonably tending to show that there was a conspiracy between Bonelli and defendant.

The judge told the jury, in effect, that there would be no change in the testimony because of the absence of Mr. Bonelli; that the case would have to be tried on the same basis as if Bonelli were present and represented by counsel; and that '* * * you have to try each and every act that he committed, if there was a conspiracy here, try each and every act within the conspiracy, if one existed, as though he were sitting down there.' (Italics added.)

This was a correct statement. Where the existence of a conspiracy is established, evidence of the acts and declarations of the conspirators in furtherance of the conspiracy is admissible, and the judge in no way intimated that a conspiracy did exist or that any act was done within the scope of any conspiracy.

In a prosecution for conspiracy it is not essential to the conviction of a coconspirator that any or all other coconspirators shall be tried and convicted. (People v. Gilbert, 26 Cal.App.2d 1, 26, 78 P.2d 770.) Where the conspirators are not jointly tried, the admissibility of evidence as to the conspiracy may well be the same, as a coconspirator is liable for the acts of the other conspirators done in furtherance of the conspiracy.

Second: That the court erred in admitting in evidence hundreds of pages of testimony relating to matters occurring before the formation of the alleged conspiracy, in the absence of any evidence that a conspiracy existed or that defendant was a member thereof if one existed.

This contention is unsound. It is urged by defendant that the court admitted the testimony of the first 20 witnesses without any showing that a conspiracy existed or that defendant was a member thereof and that 'the great bulk of the testimony of the other 39 witnesses for the...