People v. Goldberg

• Decision Date: 16 July 1957
• Docket Number: Cr. 5847
• Citation: 152 Cal.App.2d 562,314 P.2d 151
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Samuel GOLDBERG, Max C. Huling and Forrest M. Atkins, Defendants, Samuel Goldberg, Appellant.

Page 151

314 P.2d 151

152 Cal.App.2d 562

The PEOPLE of the State of California, Plaintiff and Respondent, v. Samuel GOLDBERG, Max C. Huling and Forrest M. Atkins, Defendants Samuel Goldberg, Appellant.

Cr. 5847.

District Court of Appeal, Second District, Division 2, California.

July 16, 1957.

Rehearing Denied Aug. 13, 1957.

Hearing Denied Sept. 11, 1957.

James A. Starritt, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Herschel T. Elkins, Deputy Atty. Gen., for respondent.

MOORE, Presiding Justice.

Having been convicted of a conspiracy (Penal Code, § 182) to commit the crimes of theft and forgery, to cheat and defraud by criminal means and falsely to publish bills, notes and checks with intent to defraud persons (Penal Code, §§ 470, 484), appellant seeks a reversal of the judgment and the order denying the motion for a new trial on the grounds: (1) insufficiency of the evidence, (2) admission of evidence obtained by illegal seizure, (3) no overt act proved, and (4) withdrawal and entrapment.

The information was filed July 30 and the judgment was entered November 7, 1956.

The conspiracy charged was formed by appellant with defendants Huling and Atkins who were also convicted. Their purpose evidently was to forge fictitious names to fictitious checks of their own creation ostensibly to be the checks of Douglas Aircraft Company and to cash them by means of engaging other persons to present them to divers business establishments for payment.

About June 1, 1956, defendant Huling in Inglewood asked James Ream, a resident there, whether the latter knew any person from whom he could obtain a check from the Douglas Aircraft Company; he said 'he wanted to make some duplicates of that check * * * said he would make it worth my while.' He stated that he would make a present to Ream 'and it wouldn't be jelly beans.' Ream told him that Hank ¹, his roommate, worked at Douglas. Later, huling delivered to Ream $60 with which to acquire the Douglas check. Ream was evidently not at first successful. Two weeks after such conversation, Huling by telephone asked Ream to meet him on Hawthorne Boulevard at 182nd Street. There he introduced Ream to appellant Goldberg, and the three discussed the possibility of getting the Douglas check. Appellant stated that he would see to the making of the duplicates and Huling assured Ream that the mortgage on his house would be greatly reduced 'when he get through.' Four days later [June 21] Huling telephoned Ream to return the $60. 'Mr. Huling and Mr. Goldberg told me they had to have the money back to give to someone else.' After the last mentioned conversation, Mr. Ream conferred with Officer Dell-Imagine. Officer Mott watched from across the street when Ream returned the $60 to Huling and Goldberg. On June 25, Dell-Imagine received from Officer Mott a Douglas Aircraft check payable to Brice Golliher in the sum of $53.32, drawn on the Hawthorne branch of the Bank of America. When Dell-Imagine met Mr. Ream on the same day, they agreed to meet Huling and appellant at 1 p. m. After the officer installed a Minifone on the person of Ream, the two proceeded to Torrance where they were met by Huling and appellant in a 1955 automobile. To them Ream introduced the officer as 'Hank.' Dell-Imagine handed them the Douglas check and Ream expressed concern about the return of 'Hank's' check because the latter was short of funds. They discussed a smooth manner in which to pass fraudulent checks, such as leaving legitimate identification at home. Ream asked how they were going to get around the driver's license deal. Huling said 'that's just like falling off a log. What * * * do you think a camera's for? And I've only got five cameras at home.' Appellant Goldberg said, 'I saw one this morning--a camera--that cost five thousand dollars. It was in a place where they make offset plates. It's a great big * * * thing, but it's a beautiful thing. * * * They can take any kind of a picture with that.

"Max: [Huling] No, you see here----

"Sam: [Goldberg] Pardon me. I could even get him to print these checks offset. ' Course I wouldn't want serial numbers on it and he would do it without a squawk.

"Max: Well, that part of it is your baby, Sam. I'm not telling you that. I've organized this * * * thing. It's taken me a long, long time to build up to it. As a matter of fact, Sam, I'll tell you, it has been more than a year. I knew him more than a year before I even broached the subject for him--to him.

"Sam: And then I think--it took him about two months to get me in line."

Appellant promised 'Hank': 'The only ones who will see your name on that check is Max and myself. It's not going out of our hands'; that the serial numbers would not appear on the other checks. In the conversation it was stated that defendants would print the checks; they would use 'Hank's' check as a pattern; they would set the type and return the borrowed check to 'Hank.' Huling told 'Hank' that there was a chance for him to make $6000 in three days; that the passers of the checks would get 25 per cent of their collections. 'We will have ten men working in groups of two * * *. We will give you one check. Tell you where to cash it.' Appellant calculated that it would take about a week before the authorities could catch a 'phony' check. Huling told 'Hank' to bring along his friends and they would take them in on the deal. After Ream and 'Hank' had left, appellant had possession of the check.

Mrs. Atkins testified that Mr. Goldberg brought the Douglas Aircraft check in for Mr. Atkins on June 26th, that Huling was with him but did not enter into the conversation.

When 'Hank' went to appellant's home on June 30th, appellant told him that he desired to take him by the offset printer who was to print up the checks. They called at the shop on Venice Boulevard where appellant introduced 'Hank' to the proprietor, Atkins, as 'the man who works at Douglas Aircraft and it is his check you photographed.' Atkins told them that 'if you want a real good job, you shouldn't handle the check or fold it, as the camera picks up everything.' Appellant said, 'Well, I have a piece of celluloid down at the office that I will give Hank, that he can place his pay roll check in that so it won't become soiled or bent.' After Huling joined them at Goldberg's office, appellant gave 'Hank' a celluloid envelope, whereupon the officer placed the two men under arrest. About 6:30 p. m. at the Police Building, Officer Dell-Imagine read the transcript of the Minifone conversation of June 25th and asked appellant whether he remembered the conversation, and he stated that he did.

Two days later, the officers called at the print shop on Venice Boulevard, found Atkins there and placed him under arrest. A search revealed (1) a negative of the Douglas Aircraft check dated June 22, 1956; (2) a negative of an operator's license; (3) a photostatic copy of a duplicate operator's license.

Evidence Is Sufficient

Such evidence is sufficient to establish the conspiracy alleged. A criminal conspiracy is an unlawful agreement of the persons to commit an offense denounced by statute. Its legal existence can be established only when proof thereof is accompanied by competent evidence of an overt act. It may be proved by either direct or indirect evidence. It is usually proved by a recital of the circumstances. After proof of a conspiracy, the act or declaration of a conspirator outside the presence of his confederates involving them, relating to the conspiracy may be received in evidence. Code Civ.Proc. § 1870, subd. 6; People v. Curtis, 106 Cal.App.2d 321, 325, 235 P.2d 51. Where such declaration or act forms a part of the transaction which is in dispute, such declaration, act or omission is proper evidence. Ibid. When an agreement is not in writing, parol evidence is admissible to prove its contents and where the conspiracy was oral, proof of the conversations of the parties tending to establish their agreement is evidence of the very fact to be proved and is therefore proof of the res gestae. Code Civ.Proc. § 1850; People v. Collier, 111 Cal.App. 215, 240, 295 P. 898. Of course, the proposed testimony of a witness who would relate a conversation he had had with an alleged conspirator is hearsay until after the conspiracy has been established. While the agreement may be inferred from the conversations or acts of the alleged conspirators (People v. Benenato, 77 Cal.App.2d 350, 358, 175 P.2d 296), yet if perchance any two conspirators tacitly reach a mutual understanding to commit a crime, their agreement constitutes a conspiracy. People v. Sisson, 31 Cal.App.2d 92, 97, 87 P.2d 420. If it is shown that the defendants with a view to accomplishing the same purpose, pursued it by their own acts, each performing some part thereof, the trial court is justified in concluding that they were engaged in a conspiracy to effect their common object. People v. Lawrence, 143 Cal. 148, 154, 76 P. 893, 68 L.R.A. 193.

With such principles and authorities in view, there is no reasonable basis to impugn the sufficiency of the evidence to support the judgment in the case at bar.

From the recited conversations it was necessarily inferred that appellant and Huling would together obtain a genuine Douglas Aircraft Company check to be used as a model by the conspirators; that from such model they would make check forms bearing the imprint of the Douglas corporation with lines for dates, amounts, the ostensible signature of the company's official. After appellant had met with Huling and Ream on June 21st at 182nd Street and received from Ream the $60 they had given him for the purpose of obtaining the Douglas check, the stage was set for the appearance of Hank Golliher. That occurred when on June 25th, Officer Dell-Imagine, bearing the soubriquet of 'Hank' and the coveted Douglas Check was introduced to appellant and Huling. Ream said 'Hank' was short of funds. 'Hank' asked appellant how...