People v. Hess

• Citation: 107 Cal.App.2d 407,237 P.2d 568
• Decision Date: 08 November 1951
• Docket Number: Cr. 4337
• Court: California Court of Appeals
• Parties: PEOPLE v. HESS et al.

Page 568

237 P.2d 568

107 Cal.App.2d 407

PEOPLE v. HESS et al.

Cr. 4337.

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

Nov. 8, 1951.

Rehearing Denied Nov. 20, 1951.

Hearing Denied Dec. 6, 1951.

Russell E. Parsons, Los Angeles, for appellants Hess and Rose.

Morris Lavine, Los Angeles, for appellant Greer.

Fred N. Howser, Atty. Gen., Henry A. Dietz, Asst. Atty. Gen., David K. Lener, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

Defendants were indicted by the grand jury of Los Angeles County in an indictment containing six counts. Subsequently, an amended indictment was filed containing four counts. The first count charged a conspiracy to violate sections 424 (embezzlement, misappropriating, making profit out of public moneys by public officers, etc.) and 504 of the Penal Code (fraudulent appropriation or secretion of public property by officer of the state, etc.), and section 14420 of the Government Code (corrupt performance of an official act to the injury of the state). Ten overt acts were alleged.

Count II charged violation of section 504 of the Penal Code.

Count III charged violation of section 424 of the Penal Code.

Count IV charged violation of section 14420 of the Government Code.

Defendants moved to quash the amended indictment on the grounds that (1) there was no reasonable or probable cause for the indictment; (2) no proper endorsement thereof; (3) the offenses charged were barred by the statute of limitations; (4) the indictment was vague, indefinite and uncertain and does not state a public offense; (5) was in violation of the 14th Amendment to the Constitution of the United States, and (6) that section 14420 of the Government Code is vague, indefinite, uncertain and unconstitutional.

Defendant Greer moved to set aside the amended indictment on the ground that it was not found, endorsed and presented as prescribed by the Penal Code. All defendants demurred to the indictment. The motion to quash the indictment under section 995 of the Penal Code was denied, the demurrers were overruled, and each defendant entered his plea of not guilty to each of the offenses charged in the amended indictment.

The indictment was amended for a second time, deleting from Count I the charge of violation of section 424 of the Penal Code, making certain deletions of and additions to the overt acts charged under Count I, and striking Count III from the indictment.

All defendants demurred to the second amended indictment and defendant Greer also made a motion to set the same aside on the ground that it was not endorsed and presented as prescribed by the Penal Code. A motion was also made under section 995 of the Penal Code to set aside the second amended indictment. The demurrers were overruled and the motions were denied.

The cause proceeded to trial before a jury on Counts I, II and IV of the second amended indictment, resulting in verdicts finding the defendants guilty as charged on all counts. Each defendant moved for a new trial, which motions were denied.

From the judgments of conviction and the order denying their motions for a new trial defendants prosecute this appeal.

Judgments were pronounced against defendants Hess and Rose, but as to defendant Greer the proceedings were suspended and he was granted conditional probation. Therefore, as to him, the attempted appeal from the judgment must be dismissed and his appeal determined only upon the correctness of the order denying him a new trial.

The offenses charged in the second amended indictment were the outgrowth of a transaction in which appellants allegedly participated relative to the purchase by the State of California of certain property located at 800-802 1/2 North Ardmore Avenue, in the City of Los Angeles (hereinafter referred to as parcel 307), for the right-of-way of the Hollywood Parkway or Freeway in said city.

Appellant Greer is a real estate broker engaged in business in the city of Los Angeles since 1935. Appellants Hess and Rose were California state right-of-way agents.

The procedural steps employed to acquire rights-of-way through negotiation by the Department of Public Works, Division of Highways, State of California, and particularly in acquiring rights-of-way for the aforesaid Hollywood Parkway or Freeway were set forth in detail in the case of People v. Hess, 104 Cal.App.2d 642, 234 P.2d 65, 75, 76, to which case reference is made for a statement of such procedure.

Epitomizing the evidence which gave rise to this prosecution the record reflects that in October, 1945 Leroy Brigham, an attorney, had a 'For Sale' sign on the aforesaid parcel 307 in behalf of an estate in which he had an interest. One James W. Schollenberger, first met appellant Greer about 1940 or 1941 and occasionally visited him socially. They were apparently on friendly terms. In March, 1942 Schollenberger entered the Air Corps service where he remained until discharged on terminal leave which became final on November 25, 1945. The latter part of August of that year, while he was still in military service, Schollenberger contacted appellant Greer with a view to obtaining an apartment. In the latter part of September, 1945 he received a telephone call from appellant Greer telling him that he could buy a 3-unit place and evict one of the tenants. Subsequently, Schollenberger told Greer that at the time he did not have enough money to buy the property but Greer told him 'not to worry about it, that he would take care of everything'.

The first time that Schollenberger knew the State of California was interested in purchasing the property in question was in October, 1945, at which time he signed the right-of-way contract.

The record reflects that at all times after November, 1943 it was the plan of the State Highway Department to include parcel 307 in the Hollywood Freeway project. There was no change in the design of the freeway with reference to the acquisition by the State of said parcel from 1943 to 1946.

In November, 1943, an alignment map was prepared by the State of California for parcel 307. In January, 1944, a title report relating to the acquisition by the state of said parcel and listing the aforesaid Leroy Brigham as owner, was submitted to the Division of Highways.

In February, 1944 copy of a grant deed relating to parcel 307 was prepared for the signature of Mr. Brigham.

In March, 1945 appellants Hess and Rose initialed the 'double transfer letter', in which all state right-of-way agents were cautioned against dealing with third parties rather than with the owners of property, at the expense of the state.

On September 19, 1945, appellants Hess and Rose went on a field review of the Hollywood Freeway in the area between Vermont and Western Avenues with Messrs. Cortelyou, District Engineer, E. N. Whittemore, District Right-of-Way Agent, and Mr. Phillips, a State Highway Engineer.

This field review included four fringe parcels among which was the aforesaid parcel 307. Cortelyou instructed Hess and Rose to purchase said parcel in its entirety. Whittemore made notations on the work map as follows: 'Take all, 9-19-45 E. N. W.'. He made these notations after he had received Cortelyou's instructions and while in the field. He made similar notations as to the other parcels involved.

On or about September 19 or 20, 1945, Whittemore had a conversation with appellants Hess and Rose, instructing them to open up negotiations for the purchase of parcel 307.

On October 23, 1945, appellant Greer applied for and purchased a cashier's check for $500 payable to the aforesaid James W. Schollenberger.

On or about October 13, 1945, when the escrow was first opened in Schollenberger's name, it was appellant Greer and not Schollenberger who told Mr. Cookman, manager of the bank in which the escrow was pending, that he had located an excellent buy and that he knew that the state was going to purchase that property. Appellant Greer instructed Mr. Cookman to type out the Brigham-Schollenberger escrow instructions. Appellant Greer also gave all the necessary information pertaining to the escrow instructions and took the same out of the bank to secure the signature to Schollenberger. The latter was not with appellant Greer at the bank when the escrow was opened. Appellant Greer informed the bank manager that no moneys had been paid out of scrow. Appellant Greer later returned to the bank with the signature of Schollenberger on the escrow instructions and deposited in the escrow the aforesaid $500.00 cashier's check which then contained the endorsement of Schollenberger.

About October 15, 1945, appellant Greer came into the bank and told the manager that he would need a bank loan to complete the purchase of the property and that he had definite information that the state would purchase the property for $14,500 in a very few months. The bank manager advised appellant Greer that it would be necessary for the bank to appraise the property and that Schollenberger's signature would be required on a financial statement. He also informed appellant that the bank would want definite confirmation of the fact that the state would pay $14,500 for the property.

A day or so later, about October 16, appellant Greer returned to the bank in company with appellant Hess. The latter presented his card to the bank manager and assured the latter that the state was definitely going to buy parcel 307 and was going to pay $14,500 for it within two or three months. The bank manager informed appellant Hess that he would require written confirmation from the state, and a few days later he received a letter from appellant Hess, dated October 19, 1945, reading in part as follows:

'In answer to your inquiry relative to the property located at 800-802 1/2 North Ardmore Avenue, which is legally described as Lot 27 of Charles S. Mann's Melrose Avenue Tract, we wish to advise you that this property is located in the path of the Hollywood Parkway, a...