People v. Bennett

In an amended indictment the defendants were accused of a conspiracy to commit the crime of asking or receiving bribes by a public officer. They were also accused in six counts of asking or receiving bribes by a public officer; in three counts of grand theft; and in two counts of attempted grand theft.

Counts Two, Four, Six, Eight and Ten charged the defendants with grand theft or attempted grand theft and need not be considered since all defendants were found not guilty on those counts.

Count Three charged that Berry and Bennett committed the crime of asking or receiving bribes by public officers or employees, in violation of section 68 of the Penal Code, it being alleged that on December 3, 1952, they asked, received, and agreed to receive a bribe from one Lyman Lucore in the sum of $7,000 “upon an understanding and agreement that the vote, opinion or action upon matters which would be brought before” Berry in his official capacity as an executive officer of this state would be influenced thereby. The remaining counts, in similar language, charged the commission of the crime of asking or receiving bribes by public officers or employees, in violation of section 68 of the Penal Code. In that manner Count Five charged Berry and Bennett with asking or agreeing to receive a bribe from one Jack Millspaugh on December 15, 1953, in the sum of $4,000. Count Seven charged Berry and Bennett with asking or agreeing to receive a bribe from one Mathew Howard on October 15, 1953, in the sum of $4,000. Count Nine charged Berry, Bennett and Steetle with asking or receiving such a bribe from one Shoberg on January 5, 1953, in the sum of $7,000. Count Eleven charged Berry, Bennett and Steetle with asking or receiving such a bribe from one Dodds on December 1, 1953, in the sum of $4,500. Count Twelve charged Berry and Bennett with asking or agreeing to receive such a bribe from one Gillette on June 1, 1952, in the sum of $5,000.

A jury found all three defendants guilty on Count One, the conspiracy count. Berry and Bennett were found guilty on Counts Three, Five, Seven, Nine, Eleven and Twelve. Steetle was also found guilty on Counts Nine and Eleven. Motions for a new trial were made and denied and all three defendants were sentenced to state prison. With respect to each defendant some of the sentences were to run consecu

Berry was district liquor control officer in charge of the San Diego office of the Board of Equalization. Bennett was a business opportunity broker, his office being adjacent to the Board of Equalization office in San Diego. Steetle was associated with Bennett in that business, and in the same office. The state fee for on-sale general liquor license was $525, and there was a restriction on the number of such licenses which would be issued. These licenses were transferable and at the times here in question they had a value, as soon as issued, of about $10,000 on the resale market. While anyone was allowed to make a preliminary application for a license, a formal application with payment of the statutory fee could only be filed with the permission of Berry, and he never delegated that authority to any of his subordinates. In no instance was a person who was allowed by Berry to file a formal application ever turned down by the Board of Equalization on the issuance of that license.

With respect to Count One, the conspiracy count, Harold Dodds testified as follows: During the fall of 1953 he learned that new on-sale general licenses were to be issued. He wrote a letter to the Board of Equalization asking permission to apply for one of these on-sale licenses. In response to this he received a preliminary application which he executed and returned to the board. Shortly thereafter, he received a visit from appellant Steetle who informed him that he thought that he, Dodds, would be able to obtain one of these licenses but in order to do so he would have to pay the sum of $4,500 in cash. Shortly thereafter he went to the office of Steetle and Bennett, and there met Bennett. He asked Bennett if he could pay for the license by paying $3,500 in cash and giving a note for $1,000. Bennett agreed, and he paid the money and signed the note. After Bennett agreed to this he picked up the telephone and called someone and said: “I am sending Harold Dodds over shortly.” Bennett then told Dodds to go to the office of the board and see Berry and make his application for a license. Dodds walked next door to the Board of Equalization and was taken im

Dodds’ testimony is corroborated by the testimony of Jack Millspaugh, who testified that when he was seeking a general on-sale license he asked Bennett what assurance he would have that he would receive his license if he paid $4,000; and that Bennett replied that when the money was paid he would phone Berry and “give him the green light and then I would go over and fill out the final application and pay $525.00.” Two other witnesses, not involved in any of the counts, testified that during the fall and winter of 1953 they put in preliminary applications for licenses and that shortly thereafter they were contacted by Steetle who solicited them for the payment of money to cause the issuance of the licenses. It further appears from the. evidence that all of the witnesses, five in number, who refused to make the payment asked did not receive liquor licenses; and those witnesses who did make such payments, eight in number, did receive licenses.

Another witness, Gillenberg, testified that in 1951 he attempted to get a seasonal liquor license for his premises at Jacumba, that he was not allowed to file an application until he was finally approached by Mr. Provart, who was then employed as a liquor control officer under Berry; that Provart asked him for $5,000; that he later paid $5,000 to another man; and that he was then allowed by Berry to file his application. Incidentally, Provart testified that he received $400 from Berry ‘ ‘ as his part in the Gillenberg transaction. ’ ’ Gillenberg further testified that in the fall of 1952, he tried to apply for an on-sale general license which had a resale value and was refused; that on October 25, 1952, Bennett came to his premises and told, him that the only way he could get such a license was by paying $2,500 in cash. Bennett and his wife accompanied Gillenberg to a bank where the latter secured the money. Gillenberg then paid the money to Bennett, but not in the presence of the woman. Shortly thereafter, he was notified that he could apply for his on-sale general license, was allowed to do so by Berry, and received that license. The testimony with respect to some of the other counts is also applicable to Count One.

The evidence with respect to Count Three shows that Mr. Lucore had made inquiries about the possibility of applying

With respect to the seventh count Howard testified that he wanted to obtain a license and was told by Berry that none was available. He was then referred by Berry to Bennett, and went to Bennett where they discussed the acquisition of such a license. Bennett finally suggested that he would be able to get a new license by the latter part of 1953 by paying $4,000 in cash. Howard was unable to raise that amount. He further testified that in one conversation Berry told him that he, Berry, alone would decide whether or not any person got a liquor license. With respect to Count Nine, Shoberg testified that he desired to obtain a license and inquired among many

The testimony of Mr. Dodds with respect to Count Eleven has been sufficiently referred to, and need not be repeated.

With respect to Count Twelve, Gillette testified that during the summer of 1952 someone visited his premises and left Berry’s card with instructions to call Berry. He called Berry and shortly thereafter Berry came to see him. Berry asked him if he wanted a seasonal license and told him it would cost $5,000 in cash in order to obtain it, and that the money should not all be drawn from one bank account so it could not be traced. Gillette refused to do this and was never issued a liquor license.

There was considerable other evidence applicable to all counts which showed a common scheme or design among Berry and the two appellants. Several other witnesses testified to similar experiences in getting licenses for themselves or their friends, and similar activities on the part of Bennett or Steetle. The evidence discloses that in many instances large sums of cash were paid to Berry, Bennett or Steetle for which receipts were never given; that much secrecy was engaged in by Berry and the appellants in their dealings with potential licensees; that in all cases where such payments were received licenses were issued; and that in every instance where such payments were refused, whatever the reason therefor, no license was ever issued.

The appellants admit that there was evidence as above briefly summarized but contend that, for various reasons, the evidence was insufficient to support the verdicts. With respect to the first (conspiracy) count, it is argued that there

With respect to the third count, it is argued that Lucore did not remember the date on which he paid the money to Bennett; that there is no evidence that he told Berry that he had paid the money to Bennett; that it might be inferred that Lucore freely and voluntarily turned $7,000 over to Bennett without asking what it was to be used for; and that “It may well be that Mr. Bennett saw an opportunity to pick up what is known in F.H.A. financing circles, as a ‘windfall.’ ” With respect to Count Five, it is argued that Millspaugh was interested and biased; that sometime during his negotiations with Bennett he decided to cooperate with

With respect to Count Nine, it is argued that Shoberg’s testimony made no reference to Bennett or Berry; that Steetle testified that he had nothing to do with Shoberg’s obtaining a license and received no money from Shoberg; and that there was other evidence that Bennett was absent from San Diego from December 6, 1952, to January 6, 1953. With respect to Count Eleven, it is argued that Dodds did not testify that Bennett told him that the money was to be used to offer a bribe to either Berry or anyone connected with the Board of Equalization ; that he testified that he never knew where the money was to go; and that it cannot be reasonably inferred that the money thus collected by Bennett was to be turned over to Berry for the purpose of influencing Berry’s official action or conduct. With respect to Count Twelve, it is argued that the evidence shows no connection by the appellants with the transaction with Berry, to which Gillette testified.

We find no evidence in the record which would connect Bennett with the transaction referred to in Count Twelve, or which would support the verdict finding Bennett guilty as to that count. With respect to the other substantive counts, Three, Five, Seven, Nine and Eleven, appellants’ arguments relate to questions of fact presented by all of the evidence and make no allowance for the inferences which could reasonably be drawn from the evidence received. The evidence, as a

It is contended that the court erred in denying a motion to quash this indictment and in overruling a demurrer thereto. It is argued that at the time these actions were taken the court had before it the transcript of the testimony before the grand jury; that where more than one conspiracy is involved each conspiracy must be pleaded in a separate count; that, where there are several conspiracies, testimony relating to one would be hearsay and inadmissible as against a defendant involved only in other conspiracies; and that, where a central figure is involved in several conspiracies who deals with different individuals in the various conspiracies, and all the evidence is received as against all of the parties, although only one conspiracy is charged, a conviction thus obtained is void except as to the central figure who participated in all of the conspiracies. It is argued that this principle is established in the cases of Kotteakos v. United States, 328 U.S. 750 [ 66 S.Ct. 1239 , 90 L.Ed. 1557 ], and Canella v. United States, 157 F.2d 470 . The Kotteakos case was distinguished in Blumenthal v. United States, 332 U.S. 539 [ 68 S.Ct. 248 , 92 L.Ed. 154 ], where it was held that in a prosecution for selling whiskey at overceiling prices the fact that certain salesmen did not know of the action of other salesmen, and that each defendant salesman aided in selling only his part of such whiskey, did not show the existence of more than one conspiracy but established a single conspiracy of which several actions were merely integral steps. Only one conspiracy was here alleged, of which the various transactions disclosed by the evidence were a part. No error appears in denying the motion to quash, in overruling the demurrer, or in the admission of the evidence referred to in this connection. (People v. Hess, 104 Cal.App.2d 642 [ 234 P.2d 65 ]; Bompensiero v. Superior Court, 44 Cal.2d - [ 281 P.2d 250 ].)

It is next.contended that the court erred in denying a motion for a change of venue to another county. Several affidavits were filed to the effect that the affiants did not believe that the defendants could receive a fair trial in that county, and that affiants had talked to numerous other people who entertained the same opinion, based upon the publicity in the newspapers which had occurred. The appellant Bennett filed such an affidavit, in which he included a statement

Eight newspaper clippings were attached to the affidavits. These articles related to hearings before the grand jury and the Board of Equalization, and referred to a number of different people. Some of them referred to these appellants and what they had said or refused to say. Practically all of the allegations of the affidavits were conclusions, and we find no factual matters therein which would justify a conclusion that a fair trial could not be had in that county. That county has a large population, these newspaper articles were similar to those usually found in connection with any case involving matters which create a rather wide public interest, and they largely mentioned other people and proceedings other than this action, although the appellant Bennett was mentioned in most of them. There was no state

In their closing brief appellants argue that the court should have granted a continuance until the prejudicial effect of the publicity had worn off, citing Delaney v. United States, 199 F.2d 107 . Our attention is called to no request for such a continuance, and the facts of this case are easily distinguishable from those in the Delaney ease. (United States v. Flynn, 216 F.2d 354 .)

Some contention is made that the court improperly admitted evidence, as against these appellants, and erred in denying their motion to strike such testimony at the conclusion of the People’s case. This is based upon their contention that the evidence showed a number of separate conspiracies and failed to show a general over-all conspiracy. For the reasons above given this contention is without merit. It is also argued that the court erred in permitting an amendment to the indictment shortly before the prosecution rested its case. Complaint is made of the fact that the date alleged in overt act No. 2 was allowed to be changed from December 8, 1952, to December 3, 1952. It is argued that this was prejudicial to appellant Bennett, because there was some evidence that he was in Texas on December 8, 1952. Aside from other' considerations, which need not be gone into at length, no error appears. (People v. Biggs, 9 Cal.2d 508 [ 71 P.2d 214 , 116 A.L.R. 205 ]; People v. Wright, 26 Cal.App.2d 197

Finally, it is contended that the court erred in instructing the jury. It is argued that the court instructed the jury that the victims in these transactions were not accomplices, and that their testimony need not be corroborated; and that the jury should have been permitted to determine, as a factual matter, whether or not the people whose financial transactions were the subjects of Counts Three, Five, Seven, Nine, Eleven and Twelve were accomplices whose testimony required corroboration. Reliance is placed on People v. Wayne, 41 Cal.2d 814 [ 264 P.2d 547 ] and People v. Harper, 25 Cal.2d 862 [ 156 P.2d 249 ]. A distinction between the facts in those cases and such facts as appear in the instant case is pointed out in People v. Clapp, 24 Cal.2d 835 [ 151 P.2d 237 ], and in People v. Brigham, 72 Cal.App.2d 1 [ 163 P.2d 891 ]. In the latter case, in discussing section 68 of the Penal Code, it was stated that there was nothing in the language of the section to suggest any intention to include the victim as an offender. A separate statute, section 67 of the Penal Code, is provided to cover the action of one who gives or offers a bribe to an executive officer. Such a person is not liable to prosecution for the identical offense charged against these appellants. (Pen. Code, § 1111.) Under these circumstances, these victims were not accomplices.

It is further argued that by instructing the jury that eleven named witnesses, including Provart, “are accomplices as a matter of law, and this applies to the conspiracy count” the court in effect told the jury that a conspiracy had been proved as charged in Count One. No such effect can be given to that instruction, and in the instructions given, in relation to the conspiracy charge, the jury was told that each defendant was entitled individually to its determination as to whether or not that defendant was a member “of the alleged conspiracy, if any existed.”

Several minor contentions are made which we have not

The judgments and the motions appealed from are affirmed with respect to all counts except Count Twelve, and with respect to Count Twelve they are reversed.

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

Appellants’ petition for a hearing by the Supreme Court was denied May 25, 1955.