People v. Hardeman

• Decision Date: 04 August 1966
• Docket Number: Cr. 5181
• Citation: 53 Cal.Rptr. 168,244 Cal.App.2d 1
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Maurice H. HARDEMAN, Defendant and Appellant.

Page 168

53 Cal.Rptr. 168

244 Cal.App.2d 1

The PEOPLE of the State of California, Plaintiff and Respondent, v.Maurice H. HARDEMAN, Defendant and Appellant.

Cr. 5181.

District Court of Appeal, First District Division 1, California.

Aug. 4, 1966.

As Modified On Denial of Rehearing Sept. 2, 1966.

Hearing Denied Nov. 23, 1966.

Belli, Ashe, Gerry & Ellison, San Francisco, for appellant.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, Louis P. Bergna, Dist. Atty., Santa Clara County, William P. Hoffman, Asst. Dist. Atty., for respondent.

SIMS, Justice.

Defendant has appealed from an order granting him probation ¹ following jury verdicts which convicted him of conspiracy to pervert and obstruct justice and the due administration of the laws in violation of subdivision 5 of section 182 of the Penal Code, and of conspiracy to commit arson in violation of subdivision 1 of that section.

On October 8, 1964 an indictment was returned charging defendant and one Wickholm with conspiracy to pervert and obstruct justice in Count I, defendant and Wickholm and one Sherman with arson in Count II, and the same three with conspiracy to commit arson in Count III.The motion of this defendant to have the indictment set aside under the provisions of section 995 of the Penal Code was denied, and his general and special demurrer to Count I of the indictment was overruled.Following the entry of not guilty pleas, the matter was regularly set down for trial and tried commencing January 26, 1965.On March 9, 1965, after 23 days of trial and approximately 19 hours of deliberation, the jury returned verdicts finding defendant and Wickholm guilty as charged in Count I; Wickholm and Sherman guilty as charged in Count II, and all three guilty as charged in Count III.Disagreement was reported as to the guilt of this defendant on Count II and the court ordered a mistrial as to him on that count.On March 26th imposition of sentence was suspended and the defendant was admitted to probation.This appeal ensued.No appeal has been taken by Wickholm or Sherman.

Defendant seeks review of the following matters: (1) the order overruling his demurrer to Count I of the indictment; (2) the order denying his motion to dismiss the indictment under the provisions of section 995 of the Penal Code;(3) rulings in regard to the admission of testimony, particularly, (a) a monitored and recorded telephone call between defendant and a woman then living with Wickholm who subsequently became his wife, and (b) extrajudicial declarations of the defendant and of his codefendants; (4) the sufficiency of the evidence to support the verdicts; (5) alleged errors in giving and refusing to give instructions; (6) alleged prejudicial misconduct of the prosecutor; and (7) the order of the court which allegedly subjects him to double punishment.

An examination of the facts bearing on the foregoing issues and the principles of law applicable thereto, as hereinafter set forth, leads to the conclusion that the court erred in special instructions given in answer to inquiries by the jury, that such error was prejudicial and that that defendant's conviction on Count III must be reversed.The other errors of which complaint has been made are either groundless or not prejudicial and the conviction on Count I should be affirmed.

I.NO PREJUDICIAL ERROR WAS COMMITTED IN OVERRULING THE DEMURRER TO COUNT I OF THE INDICTMENT.

A.Defendant received adequate notice of the offense which he was charged with committing.

Defendant recognizes the provisions of section 960 of the Penal Code which provide: 'No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of and defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits.'He asserts that in this case, however, he was prejudiced because he could not know the nature or identity of the criminal offense with which he was charged.The questions of whether the allegations of Count I stated a public offense, and, if so, the nature of that offense impregnated the entire trial because they affected the decisions as to the admissibility of evidence offered by the prosecution against defendant, the theories on which the case was submitted to the jury through the court's instructions, and the question of whether defendant has suffered either two convictions or double punishment for the same conduct.

In Count I it is alleged: 'The Grand July of the County of Santa Clara State of California, hereby accuses Maurice H. Hardeman and Kenneth G. Wickholm of a felony, to wit, a violation of Section 182.5 of the Penal Code of the State of California(Conspiracy to Pervert and Obstruct Justice), in that on or about and between October 7, A.D. 1961andOctober 6, A.D. 1964, in the County of Santa Clara, State of California, they did wilfully and unlawfully conspire, combine, confederate and agree together to pervert and obstruct justice and the due administration of the laws.'There follows a recital of twenty-four alleged overt acts of which seventeen are attributed to defendant, six to Wickholm and one to them both jointly.Examination of the content of these allegations is deferred to a subsequent exploration of their effect on the sufficiency of the pleading.

That portion of section 182 of the Penal Code which is in question here reads as follows: 'If two or more persons conspire: * * * 5.To commit any act injurious to the public health, to public morals, or to pervert or obstruct justice, or the due administration of the laws.* * * They are punishable as follows: (There follows specific provisions for the punishment of conspiracy to commit (1)'any crime against the person of any official specified in subdivision 6,'(2)'any other felony,'(3)'two or more felonies,'²(4) 'any of the other acts described in this section.)'

Attacks on the constitutionality of this subdivision of the section have been consistently overruled.(Calhoun v. Superior Court(1955)46 Cal.2d 18, 31, 291 P.2d 474;Lorenson v. Superior Court(1950)35 Cal.2d 49, 59--61, 216 P.2d 859;Davis v. Superior Court(1959)175 Cal.App.2d 8, 13--17, 345 P.2d 513;People v. Sullivan(1952)113 Cal.App.2d 510, 519--521, 248 P.2d 520;but cf.Musser v. State of Utah(1948)333 U.S. 95, 96--97, 68 S.Ct. 397, 92 L.Ed. 562;State v. Musser(1950)118 Utah 537, 539, 223 P.2d 193, 194;andIn re Newbern(1960)53 Cal.2d 786, 792 and 797, 3 Cal.Rptr. 364, 350 P.2d 116.)

In Lorenson the opinion concluded as follows: 'Considering the well-settled meaning at common law of the words 'to pervert or obstruct justice, or the due administration of the laws', the other and more specific provisions in the Penal Code concerning 'Crimes Against Public Justice', and the relative certainty of words employed in statutes which have been held valid, it cannot be said that subsection 5 of section 182 of the Penal Code is unconstitutional.'(35 Cal.2d at pp. 60--61, 216 P.2d at p. 866.)

Defendant acknowledges that the statutory provisions have been so upheld, but asserts that it is nevertheless improper to charge him in the bare words of the statute because the provisions of the statute alone 'seem to be warrant for conviction for agreement to do almost any act which a judge and jury might find at the moment contrary to his or its notions of what was good for health, morals, * * * justice or order.'(Musser v. State of Utah, supra, 333 U.S. at p. 97, 68 S.Ct. at 398.)The indictment, he asserts, therefore, offends the the requirement of the Sixth Amendment to the United States Constitution which recites: 'In all criminal prosecutions, the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation; * * *' In the United States v. Cruikshank(1875)92 U.S. 542, 23 L.Ed. 588, the opinion recites: 'The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had.For this, facts are to be stated, not conclusions of law alone.A crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity of time, place and circumstances.'(92 U.S. at p. 558, 23 L.Ed. 588.)The opinion further suggests that where conspiracy is charged 'it is necessary for the indictment to state the means proposed, in order that the court may see that they are in fact illegal'(pp. 558--55923 L.Ed. 588).It points out that where conspiracy to commit a certain class of crime is an offense 'The accused has * * * the right to have a specification of the charge against him in this respect, in order that he may decide whether he should present his defense by motion to quash, demurrer, or plea; and the court, that it may determine whether the facts will sustain the indictment'(p. 559, 23 L.Ed. 588).In support of this contention, attention is directed to the reference in Lorenson to the fact that 'Crimes Against Public Justice' are collected and set forth in Title VII(§§ 92--185) of Part I of the Penal Code.It is urged that the indictment to be valid must set forth one or more of the offenses therein contained, in addition to the general charge, or else be void for uncertainty because it would leave the accused subject to defending himself from a conspiracy to commit any one or more of the numerous crimes designated in that title.Some support is given this view by the fact that in those cases in which subdivision 5 has been before the courts the allegations of the charge in the indictment generally...