People v. Bender

Defendants were indicted by the grand jury of Los Angeles County and charged with three distinct offenses of embezzling money. McCandless, appel

It might be here noted that the case is now before us on rehearing after determination heretofore by this court. In our former opinion we reversed the judgment as to the first count and affirmed the judgment as to counts two and three. Appellant thereafter filed his petition for a rehearing on counts two and three. The petition was granted in general terms, that is to say, the order was made that a rehearing be granted, without reference to the counts. We do not feel that we would be precluded from again considering count one, but inasmuch as we have reached the same conclusion thereon we will not further discuss this perhaps interesting point of procedure. However, though still of the opinion that there is not sufficient evidence to support the conviction as to count one, we shall discuss the case in its entirety to the end that a complete disposal thereof may he herein made.

It appears without dispute, and indeed is conceded, that appellant had been a deputy assessor of the county of Los Angeles from 1918 until some time after the occasions charged in the indictment, and that during all of said times defendant Bender had also been a deputy and chief clerk in the assessor’s office of said county. We deem it unnecessary to set forth herein the entire scheme of assessment, levy and collection of taxes as provided in the Political Code. It will suffice to say that that code does provide for and make a classification of all property for tax purposes. The most general classification, and the only one which will concern us here, is that of real and personal property. All property is assessable as of March 1st of each year. Real estate assessed is listed by the assessor with the valuation thereon placed by that official, and in due course the assessment-roll, containing description of said property, goes to the board of equalization of the county, where the values are adjusted, and the next step is through the auditor and then on to the tax collector. Personal property is carried upon a separate

At a time before the indictment was returned and after the dates of the offenses charged in the three counts, there was being conducted an investigation into alleged discrepancies regarding the handling of personal property taxes in the office of the assessor. Amongst others engaged in this investigation was the district attorney, including the office staff of that official and his office investigators. During the inquiry appellant was called and questioned. Here we stop to note that the connection of MeCandless with the inquiry was such that any and all statements made by him were free from any influence, direct or indirect, that might taint the same to a point of inadmissibility as far as the point might be urged that such statements were not free and voluntary. In the presence of the district attorney and others conducting the investigation, and with full knowledge of the purpose of the inquiry, appellant made statements and admissions showing the following concerning the methods used in the handling of taxes, particular reference being to the personal property taxes: That appellant had charge of the statements in the case of unsecured personal property; that during the years 1930 and 1931 appellant did not have any tax receipt book issued to him; that defendant Bender would collect money due for taxes and hand the same to MeCandless, or the check, as the case might be, and that this had been done many times, so frequently that he could not remember; that the working arrangement which appellant had with Bender was with reference to money that was not turned in to the assessor, and that in most of

One of the reasons why a rehearing was granted herein was the claim of appellant that regardless of the admissibility of this statement the trial court had admitted it only with reference to count three. We have followed through the transcript very closely and find that there is no merit in this claim. It is true that the statement or admission contained other things with reference to some specific transactions, and it was with reference to these alone that the statement was excluded as to all counts excepting count three. We are of the opinion that the statement was admissible against appellant on all counts. While no reference was made to the instances covered by the indictment, and while it was conceded that at the time the statement was taken or made the district attorney had no knowledge of the specific instances here involved, yet the statement contained

Coming then to the particular acts going to support the separate counts: Preliminarily we note that all three counts are based upon the mishandling and unlawful appropriation of the funds of a single taxpayer. This taxpayer is named Spalding. In the year 1931, about May thereof, Spalding paid into the assessor’s office as and for taxes on unsecured personal property the sum of $90.50. An interesting history surrounds this payment. It appears that the agent of Spalding had been directed by Bender to send in this sum and to make the check payable to McCandless. On the day this check was expected in the office Bender showed noticeable interest and concern. At almost half-hour periods he would inquire of the mail clerk if the letter had come, and otherwise manifest an unusual concern. When the letter did arrive, the deputy in charge, instead of advising Bender or appellant, at once took it and the check in to the assessor, who upon notice thereof sent for Bender and McCandless. Bender told a story about some mistake and stated that the check was intended to pay some taxes on real estate and was sent to him personally for the reason that the

Coming then to count two: During the year 1930, and on the first Monday in March thereof, Spalding was the owner of considerable personal property, consisting in the main of certain large boats. There was some uncertainty as to whether this property could be secured by certain real estate owned by the same taxpayer, as likewise there was much debate concerning the value of the boats. The transaction in the main was handled through Bender. The boats were first assessed at a large figure and subsequently this amount was reduced almost to a minimum. Without giving the figure, we might state that the reduction showed that either the boats were originally assessed beyond all proportion to their actual value or that the reduction was to a ridiculously low figure. Regardless of this, the amount of tax claimed on the final valuation of the boat “Westward” was $82.75. This amount was paid by check made payable to Bender, for which the taxpayer received no receipt. This cheek was transferred by Bender to appellant and by the latter deposited in his personal bank account, and thereafter the instrument went through clearance and was paid. An

Appellant strenuously attacks the sufficiency of the evidence to sustain this count. He argues that from the peculiar conditions surrounding the valuation it is more probable that the small check was in reality a bribe, rather than a tax payment. The ready answer is that the amount was paid as a tax pursuant to a tax statement. Whether the property was doubly assessed made no difference as far as this payment being public funds is concerned. It is a common occurrence for the taxpayer in every county to pay double taxes, and so often has this occurred that the revenue laws make direct provision for the taxpayer’s remedy in such event. Never, however, has it been suggested that, pending adjustment, the money paid is not part of public funds belonging to the county. The chief argument of appellant is that even if all this be conceded, yet the evidence fails to disclose any knowledge on his part. For aught that appears, it is urged, McCandless may have taken this cheek in regular course as a holder in good faith and for value. There is no positive evidence of any connection between the taxpayer and McCandless, nor is there positive evidence that the latter knew the sum represented in the check was money paid to the county for taxes. When we say positive evidence we mean necessarily evidence disclosing physical contact between Bender and McCandless. No one heard Bender tell appellant that the money was tax money. Yet there is evidence sufficient to satisfy, beyond any reasonable doubt, that the money was tax money, paid in regular course to the county by one owing such a sum for taxes, and that the same never reached the county treasury. There is the proven fact that this money did go to the personal account of appellant and was by him appropriated. There is then the admission of McCandless that he had appropriated sums of money in just this way and that Bender would turn over cheeks to him the proceeds from which they would divide, and that the funds thus manipulated were moneys received from tax sources and belonging to the county of Los Angeles. We think this evidence suffi

Much is said by appellant concerning the irregularity of the payment to Bender. In this connection it is urged that the tax, being twice paid, was illegal and unusual. All of these arguments are met and answered in the case of People v. Robertson, 6 Cal. App. 518 [ 92 Pac. 498 ], wherein will be found most appropriate language disposing of similar claims.

We come now to the third count. The dramatis . personae are the same, and each in his identical role. The taxpayer is the same, although represented by a different agent. The time of this transaction was earlier than the other two, in that it transpired in the year 1928. The taxpayer had received a tax notice from the assessor’s office. At that time McCandless had a book of receipts and had been making tax collections. The mode of operation general in the office was to issue receipt-books to the collectors. When money was received, a receipt would be given the taxpayer and a duplicate receipt would be left in the book. These receipts were numbered, as was each book. When the collector accounted for the book he had all of the duplicate receipts and settled for the amoúnt of total. The taxpayer in this instance paid in the sum of $702 by check. This check went through the hands of McCandless and wound up in his possession. He had a receipt-book showing collection of taxes in the sum of $8,787.73. When he came to make settlement on this book he used the cheek for $702, though in that book of receipts was no property mentioned as assessed to the taxpayer, Spalding, who had paid, the $702. In other words, this check was used to pay out on the receipts for moneys received from other sources. It might be conceded that the office sanctioned the turning in of all checks at as early a date as possible in order to avoid any charge of unreasonable delay in presentation. And it may be conceded further that a practice to this end had

It may be noted that appellant did not take the stand nor did he offer any explanation of the facts indicating so clearly his guilt. We do strenuously affirm the rule that the failure of a defendant to testify in his own behalf shall in nowise be used against him; yet we must concede that the failure of a defendant to testify does not have the effect of strengthening his case, nor does it tend to weaken the case of the People. When facts are testified to by witnesses for the prosecution concerning which a defendant has personal knowledge, it is his inalienable right to remain mute and offer no explanation. But the one inevitable result is to leave the testimony uncontradicted; and we know of no rule of law that presumes a denial of the facts through silence. Naturally, there remains throughout the trial the presumption of innocence, and the facts are to be viewed in the light of that presumption; but that presumption does not of itself destroy the effect of evidence which is in itself satisfactory.

The record is free from error. The only defense is exceedingly technical and without merit. The guilt of appellant as to counts two and three was clearly shown. Embezzlement of public moneys is. one of the most serious offenses known to our law, and one guilty thereof, and whose

As to count one the judgment and order are reversed. As to counts two and three the judgments and orders are affirmed.

Works, P. J., and Stephens, J., concurred.

A petition by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on July 21, 1933.