People v. Jones
| Decision Date | 07 September 1967 |
| Docket Number | Cr. 2726 |
| Citation | 254 Cal.App.2d 200,62 Cal.Rptr. 304 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Arthur V. JONES, Defendant and Appellant. |
The grand jury of Orange County issued an indictment accusing the defendant Arthur V. Jones, and two codefendants, Donald Franklin and Robert Sisko, of conspiracy (Pen.Code, § 182) to commit perjury in two civil suits; the second count accused defendant of subornation of perjury (Pen.Code, § 127) in that he induced Franklin, Sisko and Laurence Boothe to commit perjury in stating as true a material matter they knew to be false, to wit, a letter dated April 22, 1962, from Boothe to Franklin was received and acted upon by Franklin and Sisko, as real estate agents, on behalf of William Kachig, during April-May 1962; a third count charged that Franklin and Sisko had committed perjury (Pen.Code, § 118); and Count IV accused defendant of offering false evidence (Pen.Code, § 132), which evidence consisted of the aforesaid letter dated April 22, 1962, knowing said letter to have been fraudulently antedated. The charges were reiterated in an amended indictment. A jury trial ensued, and the codefendants Franklin and Sisko were acquitted. Defendant Jones, who will be referred to herein as 'defendant,' was found guilty of subornation of perjury as charged in Count II, and offering false evidence as charged in Count IV, but was found not guilty of conspiracy as charged in Count I. Defendant's motion for new trial was denied and his application for probation was similarly denied. He was sentenced to state prison, and the sentences were ordered to run concurrently. Defendant was granted the privilege of remaining free on bond pending this appeal, and this appeal is from the judgment of conviction as to both counts.
This criminal prosecution had its inception in two civil suits, Boothe v. Kachig and Franklin v. Kachig, which civil actions were consolidated for trial in the Superior Court of Orange County. Both civil cases arose out of a real estate transaction involving the exchange of two parcels of real property. Boothe sued Kachig for breach of contract in failing to consummate the exchange; Franklin sued Kachig for the purpose of recovering a real estate broker's commission in connection with the same exchange. The appellant herein is a duly licensed attorney at law, who represented both plaintiffs in the consolidated actions. The codefendant-Sisko was a salesman employed by the codefendant-Franklin. Sisko performed services in connection with the contemplated exchange of properties. The falsified letter which formed the basis for the issuance of the indictment and amended indictment herein was presented in evidence during the trial of the consolidated civil actions.
The factual background which formed the basis for the civil suits reflects the following events; Kachig was a real estate loan broker and agent for World Savings; he knew real estate broker Franklin and the latter's salesman, Sisko, from having called upon them to solicit loan business whereby he would contact members of Franklin's firm for the purpose of determining whether they had sold any properties for which World Savings could arrange financing; in early April 1962 Kachig visited Franklin's real estate office in the Corona del Mar area of Newport Beach, California; Kachig spoke to Sisko and advised Sisko that he owned a 10-acre avocado-lemon grove in Fallbrook, California, which he would like to exchange for a bayfront residence in the vicinity of Newport Beach. Boothe owned a residence on Bayside Drive, Newport Beach, California, which had been listed for sale with the Franklin firm; Kachig and his wife accompanied Sisko to Boothe's residence and thereafter Kachig submitted an exchange offer through Sisko to Boothe; this exchange offer placed a value of $98,000 on the Fallbrook land; Boothe visited the Fallbrook area, examined the avocadolemon grove and formed the opinion that the valuation of the Fallbrook parcel was too high; the exchange agreement was redrawn wherein the valuation of the Fallbrook property was reduced to $88,000; the modified exchange agreement provided for a transfer of title and possession of both properties on July 1, 1962; the revised exchange agreement was signed by Mr. and Mrs. Kachig, and Sisko presented the exchange agreement to Boothe; Boothe signed the agreement but changed the date for possession of his property from July 1, 1962 to July 31, 1962, by inserting a '3' in front of the '1' and initialing the change; the agreement was then returned to Kachig on April 21 and he noted that the July 1 occupancy date had a '3' written in front of the '1' to make it July 31; Kachig said July 31 would not be acceptable because he intended to sell the beach property and there would only be a market or demand for such seasonal property during the summer months; in the event a sale could not be negotiated during the summer months, it would be necessary to retain the property during the entire winter season, which he was unwilling to do; thereafter, various sets of escrow instructions were presented to Kachig but he refused to sign the agreements presented by Franklin's firm because the date of possession provided therein was July 31; during the latter part of May or the early part of June 1962, escrow instructions were finally handed to Kachig wherein July 1 was agreed upon as the date of possession, but these escrow instructions were presented too late to consummate the escrow by July 1 inasmuch as the Boothe residence was situated on land subject to a long-term leasehold interest, and an assignment of the leasehold interest ordinarily could only be accomplished upon expiration of a period of 5--6 weeks, which would mean that the transaction could not be concluded by the contemplated date of July 1; Kachig therefore refused to complete the exchange and took the position that the exchange offers had 5-day time limits, and the exchange was obviously not affected within the specified time period.
Franklin retained the defendant Jones as his counsel for the purpose of filing suit against Kachig to recover his broker's commission on the theory that Franklin's firm had fully performed all services to be rendered under the exchange agreements. Sisko informed Boothe that the defendant was going to represent the Franklin firm in the suit to recover the broker's commission from Kachig, and Boothe decided to retain defendant for the purpose of filing an action to recover damages for breach of contract by reason of Kachig's failure to complete the exchange.
In the summer of 1962, independent actions were filed by the defendant in the Orange County Superior Court wherein he represented both Boothe and the broker, Franklin; depositions were taken in connection with said lawsuits; following the filing of the two civil actions, the exact date of which is in dispute, but prior to the trial of the civil actions, Boothe visited the defendant's office; defendant explained to Boothe that his lawsuit had a weakness inasmuch as the date of possession was a disputed issue; defendant handed Boothe the following letter and requested Boothe to sign it; this communication represents the false document which was later to form the basis for the filing of the criminal charges involved herein, and reads as follows:
'Laurence Boothe
2015 Bayside Drive
Corona del Mar, California
Mail: P.O. Box 35
'April 22, 1962
'Donald V. Franklin, Realtor
3250 East Coast Highway
Corona del Mar, California
'Dear Mr. Franklin:
'I'm sorry I was not at home when Mr. Sisko brought the Exchange Agreement to me for my reinitialing. This letter, however, constitutes my irrevocable agreement to deliver my Bayside property not later than July 1st, 1962, as per Mr. Kachig's terms and conditions. You might query Mr. Kachig to see if he is agreeable to my leaving a few items in the guest house for the month of July for which I shall be glad to pay him rent.
'Thank you for your courtesy in this matter.
'Yours very truly,
/s/ Laurence Boothe
'Laurence Boothe'
The trial of the consolidated actions was conducted in May 1963 before Judge William Lee of the Orange County Superior Court; Boothe was sworn as a witness and gave perjured testimony in the civil suit to the effect that he had written and signed the letter in April 1962; the letter of April 22, 1962, was introduced in evidence; Sisko testified that he had communicated the contents of the letter to Kachig in April 1962; Franklin testified that he had received the letter in April 1962; Kachig testified he had never seen nor heard of the letter; at the conclusion of the civil trial, judgment was rendered in favor of the broker Franklin and against Kaching in a sum in excess of $10,000; Boothe was awarded only nominal damages of $100; Boothe was not happy with the token-damage award and appealed the civil judgment, and the defendant also acted as his attorney in connection with the civil appeal.
Following rendition of the two judgments, Kachig visited the court clerk's office and examined the type on the letter and then proceeded to various agencies and commercial enterprises for the purpose of comparing the type; he conducted an investigation to determine the make and model of typewriter which had made the particular type impressions contained in the letter; Kachig then visited the district attorney's office.
Boothe was ultimately contacted by an investigator of the district attorney's office; he first denied any involvement in perjury or falsifying evidence, but when...
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