People v. Rohe, Cr. 2380

• Citation: 114 Cal.App.2d 605,250 P.2d 647
• Decision Date: 08 December 1952
• Docket Number: Cr. 2380
• Court: California Court of Appeals
• Parties: PEOPLE v. ROHE.

Page 647

250 P.2d 647

114 Cal.App.2d 605

PEOPLE v. ROHE.

Cr. 2380.

District Court of Appeal, Third District, California.

Dec. 8, 1952.

Hearing Denied Jan. 5, 1953.

Gail A. Strader, Deputy Atty. Gen., for respondent.

Duard F. Geis, Bruce H. Thomas and Ned C. Tucker, Willows, for appellant.

PEEK, Justice.

This is an appeal by defendant from a judgment conviction him of certain violations of the Agricultural Code and from an order denying his motion for a new trial.

The Information was in two counts. Count One charged a violation of Section 1269 of the Agricultural Code, in that defendant, in Glenn county, knowingly employed an agent, one Dunkle, without causing said agent to comply with the licensing requirements of Chapter 6, Division 6 of said code. Count Two charged him with violation of section 1273 of said code, in that he failed to account and make settlement for a quantity of hay purchased from one Millar in said county. Defendant's demurrer was overruled as was his motion for dismissal. He then pleaded not guilty, and following a trial upon both counts was found guilty of the crimes as charged.

During all of the times pertinent herein defendant was a hay and grain dealer licensed under the provisions of said Chapter 6, Division 6 of said code, and had his principal place of business in the city of Hollister, San Benito county. Dunkle, who was not licensed as required by said code, acted as defendant's agent in the purchase of some hay from one Millar in Glenn county. Pursuant to the contract made by Dunkle with Millar approximately 165 tons of hay were delivered to the Rohe Hay & Grain Company, being picked up in Glenn county by trucks belonging to said company. Although Millar received slips from the truck drivers for each of the fourteen loads of hay taken it appears that he received only two weight certificates representing two loads weighed at his request in Butte City and that the remaining loads were weighed in Willows under the supervision of one Lowe, a hay dealer in that city. The terms of payment as provided in the contract were 'net cash not later than fifteen days after movement.' However, Millar received nothing from defendant. Subsequently he received a small sum of money from the State of California, representing the obligation under defendant's bond with the State. Some time thereafter he received an itemized statement of the amount owing him by defendant. The correctness of this statement is not challenged. Upon the facts so presented the jury found that defendant guilty as charged, and the court, in pronouncing judgment, ordered that the terms of conviction on each count should run concurrently.

Defendant first contends that Glenn county lacked jurisdiction to try the case for the reason that the offense was not committed in that county but in the county in which the specific act of hiring Dunkle took place. This is true, he argues, because the crime with which defendant is charged was complete when defendant hired Dunkle as his agent and hence the venue could only be in the county where such hiring took place. With respect to venue, section 1273 of the Agricultural Code provides in part that prosecutions arising by virtue of the provisions of that chapter may be tried 'within the county in which the violation of this chapter occurred.' Furthermore Penal Code section 781 provides, 'When a public offense is committed in part in one county and in part in another * * * the jurisdiction is in either county.' The essence of the offense here charged consists in defendant's employment of Dunkle to act for him without first having secured the necessary license. Necessarily that employment included actions of Dunkle in Glenn county as well as the act of hiring which apparently took place in San Benito county. Therefore it cannot be said that Glenn county lacked jurisdiction to try the case.

Appellant's second contention is that the complaint did not state a public offense, since section 1269 of said code, upon which it was predicated, is ambiguous. In support thereof he contends that said section was not intended to nor did it attempt to define criminal offenses under the act but merely listed the grounds upon which a license under said chapter of the act might be denied, revoked or suspended. In this defendant has overlooked a further provision of said section. In addition to giving the Director of Agriculture the right to refuse to grant a license or to revoke the same upon the grounds set forth in said section, it is provided that 'the existence of which [facts] is hereby declared to be a violation of this chapter.'

Appellant also contends that the trial court erred in admitting evidence of a subsequent purchase of hay by Dunkle under similar circumstances. Since it is not denied that Dunkle did purchase the hay from Millar for the Rohe Hay & Grain Company and that payment was not made to the farmers pursuant to the contract of purchase therefor, any discussion concerning the admissibility of such evidence is wholly academic, and hence under the admitted circumstances, it could not have affected the conclusion reached by the jury upon Count One.

Defendant also contends that the trial court erred in denying his motion to dismiss the information on the grounds of insufficiency of the evidence at the preliminary examination. Even though, as respondent contends, the record of the preliminary examination was not admitted in evidence at the trial in the Superior Court and hence is not properly a part of the record on appeal, said record is now before this court an...