People v. Shurtleff

Defendant was tried jointly with Collier, Davis and Gardella upon an indictment framed in four counts, the first of which charged a conspiracy to ask and to receive' bribes, the other three charging completed acts of bribery. During the course of the trial the offense charged in count three was dismissed and the jury returned a verdict finding all the defendants guilty on the first count and all not guilty on counts two and four. On separate appeals from the judgment and from the orders denying new trials

The evidence of the alleged conspiracy is recited at considerable length in People v. Collier, supra, and we do not deem it necessary to republish it here or to say more than that it tended to prove that the three defendants—Collier, Davis and Shurtleff—who were deputies in the office of the sheriff of Alameda County—joined with one Smith in a conspiracy to exact tribute from bootleggers operating within the county; that Smith made the collections and divided the proceeds among the co-conspirators; and that these transactions were merely a part of a county-wide conspiracy in which the sheriff and others participated to ask and receive bribes from those engaged in unlawful occupations within the county. This appellant does not seriously contend that the evidence is not legally sufficient to support the verdict if the testimony of the co-conspirator is sufficiently corroborated.

The first point which this appellant urges is that the verdict is contrary to the law and the evidence. The point is that overt act number nine alleged in the first count of the indictment is identical with count number four pleading a specific charge of bribery and that, the jury having found all defendants not guilty under count number four, it must follow that this finding is an acquittal of the general conspiracy charge. Oliver v. Superior Court, 92 Cal. App. 94 [ 267 Pac. 764 ], is cited to the point, but the case is not applicable to the situation here. Pour defendants were jointly charged with the commission of nine overt acts as a part of the general charge of conspiracy involving the four defendants. It was not necessary to find all four defendants guilty of the commission of all the nine overt acts, and we are not permitted to presume that, because the jury found all four defendants not guilty of the ninth alleged overt act, it thereby failed to find any one of the defendants guilty of any of the remaining eight alleged overt acts. To the contrary, we must presume, in support of the verdict, that the jury found at least one of the conspirators guilty of at least

Further grounds raised by this appellant may be considered together. It is argued that the trial court should have granted the motion to advise the jury to acquit; that the evidence is insufficient to support the verdict; and that the testimony of the co-conspirator was not corroborated as required by section 1111 of the Penal Code. The testimony of the witness Smith relating a conversation with his co-conspirator Davis to the effect that Shurtleff would have to be “cut in” on the proceeds, and that thereafter Shurtleff received his share through the payments made on an automobile purchase, was sufficient, if properly corroborated, to sustain the verdict against this appellant. Hence, the trial court did not err in denying the motion to advise an acquittal.

Upon the former hearing we reversed the judgment as to Shurtleff upon the grounds that Smith’s testimony lacked sufficient corroboration. Upon a review of the record we are satisfied that we were in error in this respect and that the judgment should be affirmed.

The rule as to the measure of corroborating evidence required by section 1111 of the Penal Code is not a definite and fixed rule- in this state. Appellant cites and relies on People v. Davis, 210 Cal. 540 [ 293 Pac. 32 ], People v. Washburn, 104 Cal. App. 662 [ 286 Pac. 711 ], People v. Sheffield, 108 Cal. App. 721 [ 293 Pac. 72 ], and People v. Kempley, 205 Cal. 441 [ 271 Pac. 478 ]. Respondent relies on People v. Negra, 208 Cal. 64 [ 280 Pac. 354 ], People v. Armstrong, 114 Cal. 570 [ 46 Pac. 611 ], People v. Taylor, 70 Cal. App. 239 [ 232 Pac. 998 ], People

Viewing the evidence in this light, we find that the direct evidence of Smith that this appellant was a participant in the conspiracy and took a division of the profits of the bribery is corroborated by the undisputed evidence that, shortly after the formation of the conspiracy, Shurtleif purchased a new automobile through Smith and that the latter paid the installments thereon out of the profits of the bribery; that all notices of installments due were sent directly to Smith and payments were made by Smith personally or by his wife, and that no moneys were paid by Shurtleif to Smith for that purpose. It is true that the appellant denied that he was involved in the conspiracy. His explanation of the automobile purchase was that he gave the installment money to Smith in cash, but took no receipt, as he fully trusted Smith. He gave as the source of the money used for that purpose and for the purpose of paying the installments upon a home which he was purchasing as a tin box in which he had deposited something over four or five thousand dollars (he could not say how much, his answer being “we will say it is between five and ten”). The appellant was married and had eight children;

A large part of the brief is devoted to a criticism of the rulings of the trial court admitting the testimony of Pisani, Santueci and others relating to similar transactions of the sheriff and his deputies in other portions of the county. Much of this testimony was stricken out in so far as it related to this appellant upon the ground that it had not been shown at that time that he participated in the proceeds of these briberies. The testimony was admitted in accord with the state’s theory that the conspiracy charged in the indictment was merely a part of a countywide conspiracy on the part of the sheriff and some of his deputies to exact tribute generally from all those engaged in illegal pursuits. The testimony here objected to was testimony of the common design of the criminal enterprise charged in the indictment and was admissible under the rule of People v. Schmidt, 33 Cal. App. 426 , 446 [ 165 Pac. 555 ], People v. Lorraine, 90 Cal. App. 317 , 327 [ 265 Pac. 893 ], and People v. Sampsell, 104 Cal. App. 431 , [ 286 Pac. 434 ],

The judgment and order denying a new trial are affirmed.

Sturtévant, J., and Burroughs, J., pro tern., concurred.