People v. Eads

The appellant, one Bilbrey, one Parker, and a man using the name of Alvin Shaw, were jointly charged with conspiring to violate section 67 of the Penal Code, it being charged that they entered into a conspiracy to offer a bribe to the sheriff of Riverside County with intent to influence him to permit them to unlawfully conduct a gambling establishment. As an overt act it was charged that on January 20, 1953, they offered $500 to the sheriff to be delivered to him on January 23 or 24, and to deliver other sums as they were permitted by him to engage in gambling activities in that county. In a second count, they were charged with offering a bribe on January 20, 1953, with the intent to influence the sheriff in respect to permitting them to unlawfully operate a gambling establishment. A jury found Parker not guilty, found Eads, Bilbrey and Shaw guilty on count I, and failed to agree on a verdict on the second count. Eads has appealed from the judgment, and from an order denying him a new trial.

On January 4, Franks told Shaw and the appellant that he had contacted the man who controlled the area between Palm Springs and Indio, and Shaw said, “Fine.” Franks related this conversation to the two deputies, and they instructed him to find out more about the project. On January 10, Franks told Shaw that things looked good, and said he had incurred some expense in travel and in entertaining contacts. Shaw said they would take care of this, and said the appellant had advised him not to meet with the contacts Franks had lined up, but to deal directly with Franks as he was the pay-off man. Franks reported this conversation to the deputies, and received further instructions. On January 13, Franks told Shaw that he had some good “nibbles,” but the sheriff wanted to know what type of game was to be run and where in the county it would be. Shaw said he would talk

On January 18, Shaw and Parker came to Franks’ home where a deputy sheriff, concealed in a broom closet, turned on a tape recorder and listened to the conversation over ear phones. Franks told them things were practically lined up, but the sheriff wanted a few details ironed out. Shaw stated that they wanted the sheriff to work on a percentage rather than a weekly basis, that the sheriff could make as much as $1,500 a night, and that a man from the sheriff’s office could count the money every night. Franks told them that the sheriff would like to meet Shaw and his attorney, Bads, in his office, and Parker said he thought this was a good idea. On January 19, Shaw phoned Franks from the appellant’s office and told him he was going in to see the sheriff. Franks called the sheriff and reported what Shaw had said. Shaw and Bilbrey came into the sheriff’s office that afternoon and the conversation was taken down by means of a concealed microphone and a tape recorder. Among other things, the sheriff told them that he wanted to talk to Bads, and that he wanted to know how the matter of income taxes would be handled. Shaw expressed a willingness to pay $1,500 in advance, and said he would bring Bads the next day.

On January 20, Shaw, Bilbrey and the appellant went to the sheriff’s office, and the conversation was taken down on the tape recorder. The appellant told the sheriff that Shaw was the head of the organization and advised the sheriff to handle the income tax matters by paying all bills in cash, getting a safety deposit box, and being careful not to make any noticeable increase in his style of living. He also said they were going to keep this operation small and quiet and not play it wide open saying: “That is what blew up last time, if you remember, in San Bernardino.” When the sheriff asked “Have you got any money on you now to cinch this thing”- the appellant said, “Well, if you need some front

The appellant’s first contention is that the court erred in not permitting his counsel to cross-examine the sheriff, after an opportunity to hear the tape recordings. The sheriff was called as a witness on April 21. On April 22, after an examination on voir dire, the tape recordings were admitted into evidence without objection. It was then adjournment time, and counsel asked to be allowed to play the recordings before they were played to the jury. The court denied this request, on the ground that the tapes might be broken and that they must remain in custody of the clerk, but stated that counsel for defendants might examine the tapes after they were played to the jury. The next morning the tape recordings were played for the jury over an objection that counsel had not been allowed to hear them and that the witness had not been qualified as an expert in running such a machine. The court offered to allow counsel to select another operator and run the tape again for the jury, if desired. When the direct examination of the sheriff was finished on April 27, counsel for appellant stated that he had no cross-examination. After adjournment that day the court announced that, at their request, he had arranged to have the recordings played for defendant’s counsel. The examination of witnesses continued for several days and the People rested on May 11. Counsel for the appellant then asked that the sheriff be recalled for “further cross-examination,” saying that he could not cross-examine before he heard the recordings, and that he wanted the sheriff to explain some differences between the recordings and the notes used by him. It is now contended that the denial of this request was an abuse of discretion. Some two weeks had elapsed after the witness left the stand, and no satisfactory reason is given for the long delay, or for the failure to make a timely request that cross-examination be deferred until counsel had again heard the recordings. Nothing is stated as to what the discrepancies are claimed to be, or their materiality. If such discrepancies

It is next contended that the court erred in unduly restricting appellant’s cross-examination of two witnesses. It is argued that wide latitude should be allowed in cross-examination, and that the court sustained objections to numerous questions on the ground they had been previously asked and answered. The cross-examination of these witnesses, to which appellant makes only a general reference, takes up 252 pages of the transcript, more than 100 pages being by appellant’s counsel, and no specific matter is pointed out. A reading of that part of the record discloses neither error nor prejudice.

It is next contended that the court abused its discretion in not permitting appellant to recall the witness Pranks for further cross-examination. The record discloses, in this connection, that the court told counsel that if there was anything he had failed to go into on cross-examination it would be allowed, and added “but if you merely wish to go over” some of the things already covered he saw nothing to be gained. Counsel then stated that Franks had said he first heard of Shaw on January 2 and “I want to prove that this man had lunch with Alvin Shaw on December 31, 1952.” The court told counsel he was at liberty to do this by direct examination or by other witnesses, but not by arguing with Franks.

It is next contended that the court erred in refusing to allow appellant to examine the tape recordings after they were admitted into evidence and before they were played to the jury. These recordings were made available to him for private examination shortly after they were played to the jury, and no claim is made that anything was discovered which would have had any effect on their authenticity, or which could have affected the verdict if it had been discovered 'sooner. Nothing material to the case is pointed out and no prejudice appears.

It is next contended that the court erred in not permitting the appellant to cross-examine the sheriff on his notes of the conversations on January 19 and 20. It is argued that he was entitled to such a cross-examination in order to determine whether the notes complied with section 2047 of the Code of Civil Procedure, and that he was limited “to merely an examination on voir dire.” The record shows that there was

It is next contended that it was error to allow the sheriff to testify from his notes, and that since these notes were merely his interpretation of the tape recordings it was error to exclude appellant’s interpretation of the recordings. It is argued that these notes were transcriptions from the tape recordings, were not prepared by the witness when the facts were fresh in his memory, and were merely the witness’ interpretation “of the testimony contained on the tape recordings.” The sheriff testified that he had heard these conversations; that the recordings were a correct reproduction of the conversations; that the tape recordings were transcribed under his direction; and that he had added pencil notations of his own. The witness had heard the conversations and merely used the notes to refresh his recollection in part, and the notes thus used were not merely his interpretation of the recordings. Moreover, the appellant’s counsel stated that he had no objection to this reference to the notes.

It is next contended that the court erred in commenting upon the evidence in one instance without, at that time, instructing the jurors that they were the sole and exclusive judges of the weight and credibility of the evidence. In the instance referred to, the sheriff had testified with respect to his conversation with the appellant after the other defendants were removed from his office. Later, the court stated that this conversation was not admitted against the other defendants and that the motion to strike as to those defendants would be granted “for the reason that all that conversation could possibly show would be a possible consciousness of guilt on the part of the defendant Bads or an admission against interest which would not be binding on the other defendants under any circumstances.” A little later counsel asked the court to instruct the jury at that time to disregard this comment. The court stated that he would

It is next contended that the court erred in refusing, during the trial, to instruct the jury that evidence admissible as to certain defendants was not admissible as to all defendants, and in failing to instruct the jury to disregard all evidence which was stricken, at the time it was stricken. It is argued that evidence was received of the conversation of other defendants made out of the presence of the appellant, that this evidence was not admissible as against the appellant, that the court’s failure to so instruct the jury at the time had the effect of leaving the damaging effects of such evidence in the minds of the jurors, and that this effect could not be removed by the instructions given at the conclusion of the trial. The evidence thus referred to consists of statements made by other defendants at a time which the jury could reasonably have found was during the existence of a conspiracy and made in furtherance of its objects, and this evidence was admissible as against the appellant. The court instructed the jury that the declaration of an alleged conspirator could not be considered against any other alleged conspirator, unless and until the alleged conspiracy was proved to have been in existence at the time of the declaration. The jury was also instructed to disregard any and all evidence which had been stricken. No error appears in this connection.

It is next contended that it was error for the court to fail to instruct the court reporter to transcribe the tape recordings as they were played to the jury. It is argued that these recordings were in the nature of testimony, that section 269 of the Code of Civil Procedure requires that all of the testimony be taken down in shorthand, and that while some portions of the recordings were unintelligible and inaudible the recording should have been taken down and these portions noted. When the witness was asked to play the recording to the jury the objection made was that counsel had not been allowed a prior hearing of the tape, and that the witness was

It is next contended that the district attorney was guilty of prejudicial misconduct in attempting to introduce evidence of other crimes committed by the defendant Parker. It is argued that this reflected on the appellant, and the impression on the minds of the jurors could not be removed by any instruction to disregard it. The evidence thus referred to consisted of one statement made by Parker to a police officer. A motion to strike was granted and the court immediately instructed the jury to disregard it telling them, among other things, that it was offered only as against the defendant Parker and that it could not possibly be construed as binding on any other of the defendants. At the conclusion of the case the jury was again instructed to disregard any testimony which had been stricken. No misconduct appears, and the instructions were sufficient to remove any indirect harm to the appellant if such there was.

It is next contended that the evidence conclusively shows that the appellant was entrapped into conspiring to offer a bribe to the sheriff. It is argued that the conversations between Bilbrey, Shaw and Franks up to January 15 were

It is next contended that the court erred by instructing the jury on immaterial matters. It is argued that three instructions relating to gambling were immaterial, and that another instruction on “attempt” was unnecessary. The first three of these instructions defined the offense of gambling, described the duty of the sheriff with respect to arresting persons who are committing public offenses, and told the jury that these instructions were not intended to suggest that any violation of the gambling laws was here charged but were given to assist in determining whether the actions charged in the indictment, if committed, might or could tend to influence the sheriff in connection with his official duties. These instructions were material to the issues. The instruction on attempt was a part of an instruction on intent. Assuming that it was unnecessary, no harmful effect appears.

The next contention, that the court erred in instructing the jury on circumstantial evidence, is without merit. The complaint is that the court refused to give certain instructions, and modified others, which were offered by the appellant. The court gave complete instructions on this matter which fully covered every element contained in the refused instructions, with the sole exception that they did not mention the appellant by name.

It is next contended that the court erred in refusing to give an instruction setting forth the rule that the testimony

It is next contended that the court was guilty of prejudicial misconduct in certain remarks made to defense counsel. Admitting that these remarks were made to counsel for the codefendants, it is argued that they would naturally be taken by the jury as reflecting on the appellant, since this was a conspiracy trial. We have carefully read each of the 22 citations to the record thus made, and find no possible prejudice in any of them. Most of them are trivial, all were justified by the circumstances, and some were made when the jury was not present. In one instance, under great provocation, the court said: “The unfortunate thing about it, under the rules apparently only the district attorney and the court can commit error. Defense counsel repeatedly does it here. I want no more of it. Now proceed.” Shortly thereafter the court struck these remarks from the record and instructed the jury to disregard them. No prejudice appears, and the record discloses that the trial judge displayed, throughout the trial, a degree of patience under trying circumstances which comes close to setting a record.

The final contention is that since the jury was unable to agree on a verdict on the second count, the verdict on the first count is inconsistent and cannot stand. It is argued that the first count sets forth the same overt act, the offer of a bribe, which was alleged as a separate offense in the second count; that the jury in effect found that no bribe was offered; and that the- disagreement on the second count was tantamount to an acquittal of the overt act alleged in the first count. Such cases as Oliver v. Superior Court, 92 Cal.App. 94 [ 267 P. 764 ], and In re Johnston, 3 Cal.2d 32 [ 43 P.2d 541 ], are relied on. In such eases there was an acquittal with respect to the controlling overt acts. Here, there was no acquittal with respect to the substantive offense,

The judgment and order appealed from are affirmed.

Griffin, J., and Mussell, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied April 28, 1954.