People v. Goldstein

Defendant Bill Goldstein was indicted for grand theft and conspiracy to commit grand theft. Also indicted and tried with him were Jay Rich and his wife, Betty Rich. Goldstein and J ay Rich were convicted. Betty Rich was acquitted. Defendant Goldstein made a motion for new trial which was denied. Probation was granted him and other proceedings in the ease were suspended. He appeals from the order denying new trial and from the “verdict and final judgment.” His is the only appeal with which we are now concerned. One Hyman Kean was also named as a conspirator, but was not indicted and became the prosecution’s chief witness.

Appellant’s primary claim is that the evidence is insufficient to warrant a finding of conspiracy and in the absence thereof there could be no finding of the consummation of the grand theft. The rule which must guide us in examining this contention is stated in People v. Daugherty, 40 Cal.2d 876 , 885 [ 256 P.2d 911 ], as follows: “The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact. It is not whether guilt is established beyond a reasonablé doubt. ‘. . . We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict. ’ If the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury.” (See also People v. Gutierrez, 35 Cal.2d 721 , 727 [ 221 P.2d 22 ]; People v. Hatton, 114 Cal.App.2d 195 , 196 [ 249 P.2d 901 ].) We therefore adopt in our statement of facts that evidence which tends to support the judgment, rather than any conflicting testimony which was designed to prevent such a result. The following statement is based principally upon the testimony of Hyman Kean.

Kean, who had known Goldstein and Rich for years, went with Mark Price on or about July 27, 1953, to see the Riches, asked Jay Rich to go in on an accident which would be set up and said the money that was to be derived therefrom would be split three ways. Price told him he would have another party hit a car and the Riches would be participants in the accident; that Mr. and Mrs. Rich would occupy the automobile

Shortly before August 15th, Kean and Price called at Gold-stein’s market to see him, but he was out. Soon thereafter Kean went alone to see Goldstein, who was busy waiting on customers in his market (at Fairfax and Oakwood in the city of Los Angeles), but nevertheless carried on a running conversation. Kean asked if he had insurance on his car. Defendant replied in the affirmative. He was then asked if he would go in on an accident with Kean and he made no definite reply, just listened. It was explained to him that there would be three persons included in the accident, that in order to get money he, Goldstein, would have to hit a car and if there were three people involved that the money would be split three ways. Asked if he had a car or a truck, defendant said he had both, and Kean suggested that the truck would be preferred. Shortly thereafter, Kean and Goldstein had another conversation at the market, and the latter was asked if he would come in on an accident. He said: “What is it; how would it take place?” and was told that several people would be involved and he would get one-third of the money. While the details of the proposed accident were not spelled out, Kean said he would have a party in the car and Goldstein would arrive from the back and hit the car lightly, not to hurt anybody. Goldstein made no audible commitment, but when asked if he would go in on the venture he nodded his head up and down, in an affirmative manner.

Shortly before the time arrived for perpetrating the collision Price, who had been managing the enterprise up to that date, got into an argument with Mrs. Kean, who ordered

Claims for damages on the part of Mrs. Kean and the two Riches were placed in the hands of a firm of attorneys who, after making appropriate representations to the agents of the insurance company, effected a settlement resulting in the issuance of three insurance company checks. One for $375 was payable to Hyman Kean, Sally Kean and the firm of attorneys. They received it from Price, endorsed it and were given $250 cash in exchange. Another $375 check was payable to Jay Rich, Betty Rich and the attorneys, and the third one for $2,000 was payable to Jay Rich and the

Prior to the receipt of these checks, and on or about August 20th, Goldstein had reported the accident to his insurance agent, Max Green. He told him there was no liability and so Green sent him a report blank and told him to fill it in and deliver it to the insurance company. Later, defendant gave a statement to James W. Wylde, who was adjuster for the said company, and he therein said that while he was driving south on Fairfax “he happened to glance over at a building on the other side of the street for what purpose he couldn’t recall, but he did, and when he glanced back to the street there was a car right in front of him and he put his foot on the brakes but he couldn’t slam on the brakes and the front of his car hit the front of this other car knocking it up over the curbing.” Also that there were two men and two ladies in the other car; gave the names to the adjuster and said he did not know any of the parties; that one man seemed to be injured but that the people in the car said they would not need an ambulance, they would take care of him themselves. Although defendant had told his broker that there was no liability it is apparent that this statement was couched in such terms as to give rise to an inference of liability, and, there being no other witnesses, it was calculated to leave the insurance company in a position where it could do nothing but settle any claims.

When defendant was arrested, Officer Kilpatrick asked him “regarding an accident with Mr. Kean” and defendant replied, “Kean, who is Kean—never heard of him.” About 10 or 15 minutes later the following colloquy occurred: “Well, now, let’s not kid each other about Mr. Kean. I know that you know him. You have known him for a long time; in fact, you are a friend of his, and he said, ‘Well, yes, I do know him.’ ”

Appellant’s argument of insufficiency of the evidence presents the familiar discussion of reliability of witnesses and reasonableness of inferences drawn by the jury. Much stress is laid upon the fact that the details of the accident were

“. . . [I]t is . . . settled that ‘One who joins a conspiracy after its formation is liable as a conspirator just as are those who originated it’ (11 Am.Jur. 548; 15 C.J.S. 1060; Marino v. United States, 91 F.2d 691 , 696 [ 113 A.L.R. 975 ]), ‘nor is it necessary that such conspirator should have seen the others, or have knowledge as to who all the members of the conspiracy are’ (15 C.J.S. 1063; 11 Am.Jur. 548).” (Anderson v. Superior Court, 78 Cal.App.2d 22 , 23 [ 177 P.2d 315 ].) The Supreme Court said in People v. Buffum, 40 Cal.2d 709 , 725 [ 256 P.2d 317 ] : “It is, of course, unnecessary that each conspirator see the others or know who all the members of the conspiracy are. [Citing cases.] It is likewise unnecessary that each conspirator participate in the overt acts. [Citing eases.] ”

Appellant further argues by way of claim of inadequate evidence that the testimony of the accomplice Kean was not corroborated to the extent required by law. Counsel relies upon the rule stated and applied in People v. Morton, 139 Cal. 719 , 724 [ 73 P. 609 ], and People v. Reingold, 87 Cal.App.2d 382 , 392 [ 197 P.2d 175 ], which are to the effect that the corroborating evidence must of itself tend directly and immediately to connect the defendant with the offense charged against him, and is not sufficient if it requires interpretation and direction from the accomplice’s testimony to give it value.

Although People v. Griffin, 98 Cal.App.2d 1 , 27 [ 219 P.2d 519 ] (hearing in Supreme Court denied), cast some doubt upon the exclusiveness and universality of the

“The decisions applying section 1111, relating to accomplices, hold that the corroborative evidence required by that provision must be considered without the aid of the testimony which is to be corroborated and that it is not sufficient if it requires the interpretation and direction of such testimony in order to give it value. ...” Referring to sections 1111 and 1108, Penal Code: “In our opinion both statutes must be construed to mean that corroboration is not adequate if it requires aid from the testimony of the person to be corroborated in order to connect the defendant with the commission of the offense charged. ’ ’ But this does not require the corroboration to do more than substantially tend to connect the defendant with the commission of the offense in such manner as to satisfy the jury that the accomplice is telling the truth. It does not require the testimony of the accomplice as to the corpus delicti, e.g. existence of the conspiracy, to be corroborated.

People v. Trujillo, 32 Cal.2d 105 , 110 [ 194 P.2d 681 ] : “Such corroboration must create more than a suspicion of guilt, but is sufficient even though it ‘be slight and, when standing by itself, entitled to but little consideration. ’ [Citing cases.] It is sufficient when the evidence offered as corroborative tends to connect a defendant with the commission of the crime in such a way as reasonably may satisfy a jury that the accomplice is telling the truth. It is not necessary that the accomplice be corroborated as to every fact to which he testifies. If his testimony could be completely proven by other evidence, there would be no occasion to offer him as a witness. (People v. Negra, supra [ 208 Cal. 64 ( 280 P. 354 )]; People v. Yeager, supra [ 194 Cal. 452 ( 229 P. 40 )].) For the same reason, it is not necessary that the independent evidence be sufficient to establish the defendant’s guilt. The prosecution is not required to single out an isolated fact which in itself, unrelated to other proven facts, is considered to be sufficient corroboration. It is the combined and cumulative weight of the evidence furnished by nonaccomplice witnesses which supplies the test.” (See

People v. Henderson, 34 Cal.2d 340 , 346 [ 209 P.2d 785 ], says: “When as in the present record it is discovered that there is testimony aside from that of the accomplice which tends to connect the defendant with the commission of the crime, the function of the appellate court is performed. ’ ’

In People v. Gallardo, 41 Cal.2d 57 , 62 [ 257 P.2d 29 ], an abortion case, the court said: “Corroboration is sufficient if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the woman is telling the truth.* ’ ’ The footnote says: “*Some of the cases state that the evidence must be ‘inculpatory,’ but this is used merely as another way of stating that it must tend to connect the defendant with the crime. [Citing cases.] ” At page 63 the court further says: “It must create more than a suspicion, but it may be sufficient even though slight and entitled to but little consideration when standing by itself, t” And the footnote to that page is this: “fAlthough it has been said that corroboration is not sufficient where the circumstances are consistent with the innocence of the accused [citing eases], the more recent decisions have held that whether the corroborating evidence is as compatible with innocence as it is with guilt is a question of weight for the trier of fact [citing eases].” People v. McNamara, 103 Cal.App.2d 729 , 740 [ 230 P.2d 411 ], a conspiracy case, says: “As we held before, the jury could reasonably find that the possession of the check protector and the circumstances relating thereto linked appellant sufficiently to the forgeries; the actual agreement, combination, may then be proved by the testimony of the accomplices.” (To the same effect see People v. Estes, 99 Cal.App.2d 745 , 747 [ 222 P.2d 454 ]; People v. Farrell, 133 Cal.App.2d 427 , 430 [ 284 P.2d 29 ].)

The corroboration may, of course, be furnished by defendant’s own words or conduct. (People v. Griffin, supra, 98 Cal.App.2d 1 , 25; People v. Tinnin, 136 Cal.App. 301 , 305 [ 28 P.2d 951 ]; People v. King, 40 Cal.App.2d 137 , 141 [ 104 P.2d 521 ]; People v. Millmurth, 77 Cal.App.2d 605 , 612 [ 176 P.2d 102 ].)

Mrs. Rich testified that Kean was across the street at the time of the accident. She, having been acquitted, cannot be classified as an accomplice (People v. Lawson, 114 Cal.App.2d 217 , 220 [ 249 P.2d 850 ]), and her testimony is

Lastly, the defendant did not himself testify. While this fact alone does not fill any hiatus in the proof of the prosecution and does not constitute the corroboration required by the statute, it is nevertheless persuasive, lending weight to evidence presented by the prosecution upon matters presumptively within defendant’s knowledge, and which if untruly stated would normally be denied by him. (People v. Ashley, 42 Cal.2d 246 , 268-269 [ 267 P.2d 271 ]; People v. Cox, 102 Cal.App.2d 285 , 287 [ 227 P.2d 290 ].) In People v. Adamson, 27 Cal.2d 478 , 489-490 [ 165 P.2d 3 ], the Supreme Court summarized the matter thus: “The failure of the accused to testify becomes significant because of the presence of evidence that he might ‘ explain or . . . deny by his testimony’ (Cal. Const., art. I, § 13), for it may be inferred that if he had an explanation he would have given it, or that if the evidence were false he would have denied it. (State v. Grebe, supra [ 17 Kan. 458 ]; Mooney v. Davis, supra, 193 [ 75 Mich. 188 ( 42 N.W. 802 , 13 Am.St.Rep.)] ; see Code Civ.

The corroboration was sufficient. There is no merit in the claim of insufficiency of the evidence to support the verdict.

Appellant claims error in denial of his motion to strike certain testimony, but the brief does not comply with the applicable rule. (4 Cal.Jur.2d § 480, p. 311.) Counsel contents himself with setting forth certain transcript references, some 12 in number, and claims that error appears therein. It is his duty not only to point out the alleged error,

Counsel next contends that there was error in receiving testimony of Officer Kilpatrick concerning defendant’s denial of acquaintance with Kean, followed by an admission that he knew him. The argument is that this evidence was but part of an accusatory statement which was flatly denied by the defendant and therefore the entire statement was inadmissible. But it appears that the trial judge carefully excluded all of the accusatory statement except the question as to whether he knew Kean, and the later assertion that he was not telling the truth about that, with which assertion defendant agreed. The general proposition that when an accusatory statement is offered in evidence and it appears that the same is denied by the defendant the entire statement is inadmissible, is stated in People v. Simmons, 28 Cal.2d 699 , 712 [ 172 P.2d 18 ], but the corollary to that rule is found in People v. Megladdery, 40 Cal.App.2d 748 , 785 [ 106 P.2d 84 ] : “But where the conduct of the accused in the face of the accusation is of evidentiary importance, such as where false and evasive replies are made together with a denial, the conduct of the accused is admissible as showing a consciousness of guilt and the accusation is admissible to explain that conduct. ’ ’ People v. Brown, 71 Cal.App.2d 669 , 674 [ 163 P.2d 85 ] : “An accusation and a denial of guilt of an alleged offense are not admissible, but a denial followed by an admission of special facts or circumstances tending to prove guilt is relevant. For instance, an accused may deny the commission of a criminal offense but subsequently acknowledge that he was at the scene of the crime. The latter statement would be admissible. . . .” To the same effect, see People v. Morgan, 87 Cal.App.2d 674 , 681 [ 197 P.2d 413 ]; People v. Moran, 144 Cal. 48 , 60 [ 77 P. 777 ]; People v. Scott, 84 Cal. App. 642 , 649 [ 258 P. 638 ]; People v. Wright, 94 Cal.App.2d 70 , 80 [ 210 P.2d 263 ].

Probation having been granted and the proceedings thereupon suspended, there was in fact no judgment, and this is true notwithstanding the requirement that defendant pay a fine and make certain restitution as conditions of probation (People v. Wallach, 8 Cal.App.2d 129 , 133 [ 47 P.2d 1071 ]; In re Marquez, 3 Cal.2d 625 , 627 [ 45 P.2d 342 ]).

An appeal may now be taken from a probation order (Pen. Code, § 1237), and it is established that where probation has been granted and no judgment entered an appeal which purports to be taken from the judgment may be treated as an appeal from the probation order. (People v. McShame, 126 Cal.App.2d Supp. 845 [ 272 P.2d 571 ] ; People v. Camargo, 130 Cal.App.2d 543 , 545 [ 279 P.2d 194 ].) We have discussed all the points made in support of the appeal and as above shown find that they are not well taken.

The attempted appeal from the verdict is dismissed, as no such appeal lies.

The order granting probation and the order denying motion for new trial are affirmed.

Me Comb, Acting P. J., and Pox, J., concurred.