People v. Hess
| Decision Date | 12 June 1951 |
| Docket Number | Cr. 4336 |
| Citation | 104 Cal.App.2d 642,234 P.2d 65 |
| Parties | PEOPLE v. HESS et al. |
| Court | California Court of Appeals Court of Appeals |
Russell E. Parsons, Los Angeles, for appellants, Hess and Rose.
Morris Lavine, Los Angeles, for appellant, Wheeler.
Fred N. Howser, Atty. Gen., Henry A. Dietz, Asst. Atty. Gen., David K. Lener, Deputy Atty. Gen., for respondent.
In a second amended indictment returned by the Grand Jury of Los Angeles County containing 26 counts, defendants were accused in Count I with conspiracy to violate sections 424 and 504 of the Penal Code and section 16, chapter 788 of statute 1933. This count alleged 52 overt acts. The other 25 counts consisted of specific substantive charges of violation of sections 424 and 504 of the Penal Code and section 16, chapter 788 of Statute 1933.
To the aforesaid second amended indictment defendants interposed a demurrer and two motions to set aside the indictment. The demurrer was sustained as to Counts XVI and XXVI without leave to amend, and they were subsequently dismissed. The motion of the District Attorney to dismiss Count XIX was granted as was his motion to amend Count I by striking therefrom the words 'and section 16 of chapter 788 of the statutes of 1933 of the State of California'. Demurrers of the defendants to the second amended indictment were overruled except as to Counts XVI, XIX and XXVI. Motion of the defendants to vacate and set aside the second amended indictment was denied.
Each defendant pleaded not guilty and the cause proceeded to trial before a jury. During the trial defendants moved for a dismissal of all counts of the indictment under section 1385 of the Penal Code. This motion was granted as to Counts II, IV, XII, XX and XXIV of the second amended indictment. The motion as to Counts I and XX of the second amended indictment was denied. The People moved to dismiss Counts III, V, VI, VII, VIII, IX, X, XI, XIII, XIV, XV, XVII, XVIII, XXI, XXIII and XXV, which motion was granted. On motion of the People the charge as to conspiracy to violate section 424 of the Penal Code was stricken from Count I. This left Counts I and XX as the only remaining charges against the respective defendants and, as to Count I the crime charged was limited to that of conspiracy to violate section 504 of the Penal Code.
Defendants were found guilty of the offense charged in Count I and were acquitted on Count XX.
The charges in the second amended indictment were the outgrowth of 11 transactions in which the defendants allegedly participated relative to the purchase by the state of properties for the right-of-way of the Hollywood Parkway or Freeway in the City of Los Angeles. Defendant Wheeler was a real estate broker in the City of Los Angeles and defendants Rose and Hess were California state right-of-way agents. The charging portion of Count I of the second amended indictment upon which defendants were convicted reads as follows:
'The Grand Jury of the County of Los Angeles hereby accuses John K. Hess, William E. Rose and Royall W. Wheeler of a felony, to wit, the crime of Conspiracy To Violate and, Section 504 Penal Code of California, in that about the year 1943, and continuously thereafter, in the County of Los Angeles, State of California, the above named defendants, John K. Hess, William E. Rose, and Royall W. Wheeler, and other persons whose true names are to the Grand Jury unknown, did willfully, unlawfully and feloniously conspire, combine, confederate and agree together, that the said defendants, John K. Hess, William E. Rose and Royall W. Wheeler, and their co-conspirators would cause officers of this State and deputies, clerks and servants of such State officers to fraudulently appropriate to uses and purposes not in the due and lawful execution of the trust of said State officers and said deputies, clerks and servants of said State officers, public moneys, which said State officers and said deputies, clerks and servants of said State officers had in their possessions and under their control, by virtue of the trust of said State officers and said deputies, clerks and servants of said State officers.'
After the rendition of the guilty verdicts defendants moved to set aside such verdicts on the ground that they had been once in jeopardy by reason of the claimed illegal discharge of a juror during jury deliberations without the consent and over the objections of the defendants and the substitution of another juror in her place. Defendants moved to set aside the verdicts and dismiss the indictment on the ground that Count I of the second amended indictment, as amended, was barred by the statute of limitations. Defendants moved for a new trial and in arrest of judgment, they moved for entry of judgment of acquittal on the grounds of the aforesaid claimed illegal discharged of a juror. All these motions were denied.
Judgments were pronounced against defendants Hess and Rose, but as to defendant Wheeler, proceedings were suspended and he was placed on probation upon certain terms and conditions. As to him, therefore, the attempted appeal from the judgment must be dismissed and his appeal considered only as to the order denying him a new trial. Defendants Rose and Hess appeal from the judgments of conviction, as well as from the order denying their motion for a new trial.
Although the record contains some 22 transactions in which the appellants are charged with overt acts of alleged embezzlement of public funds, only the overt acts from 1 to 4, inclusive; 33 to 38, inclusive; 21 to 26, inclusive; 5 to 8, inclusive; and 39 to 46, inclusive were argued to the jury, so we deem it unnecessary to here set forth the overt acts other than those above mentioned. They are as follows:
'That pursuant to said combination, confederacy, agreement and conspiracy, and to carry out the objects and the purposes of the same, the defendant, Royall W. Wheeler, on or about the 1st day of September, 1943, at and in the County of Los Angeles, State of California, talked to Lesslie W. Hope and Sarah E. Hope concerning the sale of certain real property located at 427-431 and 3/4 Virgil Street in the City of Los Angeles, County of Los Angeles, State of California.
'That pursuant to said combination, confederacy, agreement and conspiracy, and to carry out the objects and the purposes of the same, the defendant, Royall W. Wheeler, on or about the 25th day of October, 1943, at and in the County of Los Angeles, State of California, received One Thousand Dollars ($1,000.00), lawful money of the United States, in connection with the transaction mentioned in Overt Act No. 1.
'That pursuant to said combination, confederacy, agreement and conspiracy, and to carry out the objects and the purposes of the same, the defendant, Royall W. Wheeler, on or about the 27th day of October, 1943, at and in the County of Los Angeles, State of California, obtained a cashier's check in the amount of Four Hundred Dollars ($400.00) lawful money of the United States, made payable to 'W. E. Rose or John Hess', in connection with the transaction mentioned in Overt Act No. 2.
'That pursuant to said combination, confederacy, agreement and conspiracy and to carry out the objects and the purposes of the same, the defendant, John K. Hess, on or about the 28th day of October, 1943, at and in the County of Los Angeles, State of California, endorsed the cashier's check mentioned in Overt Act No. 3.
'That pursuant to said combination, confederacy, agreement and conspiracy, and to carry out the objects and the purposes of the same, the defendant, Royall W. Wheeler, on or about the 1st day of February, 1944, at and in the County of Los Angeles, State of California, talked to John P. Auer and Saima Auer concerning the sale of certain real property located at 4420-4424 Melrose Avenue and 654-660 1/2 North Alexandria, in the City of Los Angeles, County of Los Angeles, State of California.
'That pursuant to said combination, confederacy, agreement and conspiracy, and to carry out the objects and the purposes of the same, the defendant Royall W. Wheeler, on or about the 27th day of March, 1944, at and in the County of Los Angeles, State of California, received the amount of Three Thousand Five Hundred Dollars ($3,500.00), lawful money of the United States, in connection with the transaction mentioned in Overt Act. No. 33.
'That pursuant to said combination, confederacy, agreement and conspiracy, and to carry out the objects and the purposes of the same, the defendant, Royall W. Wheeler, on or about the 27th day of March, 1944, at and in the County of Los Angeles, State of California, obtained a cashier's check in the amount of Seven Hundred Dollars ($700.00), lawful money of the United States, made payable to 'W. E. Rose' in connection with the transaction mentioned in Overt Act No. 34.
'That pursuant to said combination, confederacy, agreement and conspiracy, and to carry out the objects and the purposes of the same, the defendant, Royall W. Wheeler, on or about the 27th day of March, 1944, at and in the County of Los Angeles, State of California, obtained a cashier's check in the amount of Seven Hundred Dollars ($700.00), lawful money of the United States, made payable to 'John Hess' in connection with the transaction mentioned in Overt Act No. 34.
'That pursuant to said combination, confederacy, agreement and conspiracy, and to carry out the objects and the purposes of the same, the defendant, William E. Rose, on or about the 28th day of March, 1944, at and in the County of Los Angeles, State of California, endorsed the cashier's check mentioned in Overt Act No. 35.
'That pursuant to said...
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