People v. Avas

On October 25, 1954, MacKenzie, Avas, and Mickey Jones, also known as Elsie Helen Gragg, were indicted by the Orange County Grand Jury. Count I charged them with the violation of Penal Code, section 182, a felony, “conspiracy of asking or receiving bribes by public officers.” Count II of the indictment charged Avas and MacKenzie with violation of Penal Code, section 68, a felony, “asking and receiving bribes by public officers or employees.” Count III charged Jones and MacKenzie with a violation of Penal Code, section 68. Count IV charged Avas with grand theft under Penal Code, sections 484 and 487. Count Y charged Jones with grand theft under Penal Code, sections 484 and 487. Defendant MacKenzie pleaded not guilty to all counts in which he was charged. On March 28, 1955, the district attorney moved to dismiss as to defendant Jones, and stated she had been offered immunity and would testify for the People. The motion was granted by the court. At the trial verdicts were returned by the jury as follows:

“ ‘Count I: Appellant and defendant Avas, “Guilty”;

“ ‘Count II: Appellant and defendant Avas, “Guilty”;

“ ‘Count III: Appellant MacKenzie, “Guilty”;

“ ‘Count IY: Defendant Avas, “Acquitted”.’”

The defendant Avas died on October 23,1955, and a photostatic copy of his death certificate has been filed with the

In the conspiracy count (I), 20 overt acts were alleged calculated to influence the defendant MacKenzie in promoting the issuance of liquor licenses. In support of Count II it was alleged that the defendants MacKenzie and Avas did ask, receive and agree to receive from Jack Kennedy a bribe of $7,500. In Count III Jones and MacKenzie are alleged to have asked, received and agreed to receive a bribe of $8,000 from Ross W. Gray.

The case proceeded to trial on March 28, 1955, and continued to May 12, 1955. MacKenzie’s motion for new trial was denied on July 21, 1955, and he was sentenced to the state prison for the term prescribed by law as to each of the counts on which he was found guilty, the sentences to run concurrently.

The Board of Equalization of the State of California had the authority and responsibility of the issuance of liquor licenses in various counties of the state. Defendant MacKenzie was District Liquor Control Administrator for the counties of San Bernardino, Riverside and Orange. He had his office in the city of San Bernardino. Working under him were William C. Elledge, Supervising Control Officer for San Bernardino County, with his office in San Bernardino, William F. Boland, Supervising Liquor Control Officer for Riverside County, with his office in Riverside, and Herman Pause, Supervising Liquor Control Officer for Orange County, with his office in Santa Ana. Under the rules of the Board of Equalization licenses were limited to one for each 1,000 population. Following the 1950 census it was determined that additional on-sale general licenses—known as “P” licenses— might be issued. Rules respecting the application therefor were promulgated by the Board of Equalization. MacKenzie’s immediate supervisor was William G. Bonelli, a member of the Board of Equalization, with whom MacKenzie conferred before applications for the new licenses were accepted from the counties under his supervision. Several hundred people made inquiry in the Santa Ana office about licenses, and only about 50 were permitted to make application, and but 45 were issued. Only on MacKenzie’s approval could a form of application be given to an applicant.

The manner of receiving applications and the method employed in issuing licenses became the subject of inquiry by

Defendant’s Point I goes to the sufficiency of the evidence to prove conspiracy (Count I). Ross Gray testified that he owned and operated the Capistrano Hotel. In 1952, Gray visited the Santa Ana office of the Board of Equalization in an attempt to get an on-sale general liquor license. He was refused the right to get an application but he was sent to see MacKenzie in San Bernardino, to whom he stated that the hotel desperately needed a liquor license which was unavailable through legal channels, “but if there were other ways of getting it” he was in a financial position to cooperate. Defendant replied: “that he wasn’t in a position to help me get a license, but he thought he knew someone that was, or could help me get one, and that if I went to the Antler’s Hotel and sat around the lobby or the bar for a while I may get a phone call from that person.” After making the promised phone call a woman, Mickey Jones, met him at an appointed place in a Cadillac Coupe de Ville. She required that Gray meet her at the Majestic Café in Santa Ana and have $8,000. “I gave Mickey Jones the $8,000 and said ‘Now what do I do?’” At Mickey Jones’ direction Gray went to the Board of Equalization office in Santa Ana and received and filled out an application. In about three weeks’ time he received his license. Following the attorney general’s investigation MacKenzie told Gray to “say nothing.”

Mrs. Jones testified that MacKenzie told her in September, 1952, at her home in Crestline, that he planned to sell licenses for one-half their market value and retain for himself 40 per cent thereof. Sometime in September, 1952, at MacKenzie’s direction, she met Gray who said to her, “I have been trying to get a liquor license and I was told to come out here and meet you.” “I told him his license would cost $8,000.” She met him later and received currency which she put in a bag and gave to MacKenzie, at her home in Crest-line.

Jack Kennedy testified that he had known MacKenzie for a number of years; that they had been fellow police officers at Newport Beach; that he operates the Liquor Mart at

The above is but a partial extract of 1,730 pages of transcript, but clearly establishes an agreement of MacKenzie

Unlike the last cited liquor cases we have here immunity given one of the conspirators and direct evidence by her of the essential elements of the charges. Mickey Jones was an accomplice, a party to the combination and active in carrying out its object. (People v. Walker, 88 Cal.App.2d 265 [ 198 P.2d 534 ]; People v. DePaula, 43 Cal.2d 643 [ 276 P.2d 600 ].) On the last cited authorities Kennedy and Gray were not accomplices, as their offenses were not identical. It was held in the Bennett case, supra, (132 Cal.App.2d, p. 581) that the one who gives the bribe is not an accomplice of the receiver of the bribe. The credibility and weight of Mickey Jones’ testimony were for the jury. (People v. Dail, 22 Cal.2d 642 [ 140 P.2d 828 ]; People v. Malone, 82 Cal.App.2d 54 [ 185 P.2d 870 ].) But it is necessary under section 1111, Penal Code, that the corroborating evidence of Gray and Kennedy must be considered “without the aid” of her testimony and the corroboration is not sufficient if it requires the interpretation and direction of the Jones testimony to give it value. (People v. MacEwing, 45 Cal.2d 218 [ 288 P.2d 257 ].) Jones’ testimony might and could be found to have established the corpus delicti. (People v. Bonilla, 124 Cal.App. 212 , 215 [ 12 P.2d 64 ].) MaeKenzie’s refusal to allow either Kennedy or Gray to fill out forms of application until after Gray had paid the bribe to Jones in response to MacKenzie’s suggestion and Kennedy paid Avas; MacKenzie’s assurance to Kennedy that everything was going to be all right, not to worry; MacKenzie’s remark as to the justification of allowing Kennedy to get a license, and, Kennedy’s release from further “campaign” contributions are all circumstances amply corroborative of Jones’ direct testimony of the combination, plan of operation, and success in carrying it out. We need concern ourselves no further with the sufficiency of the evidence.

The court also admitted evidence of other transactions wherein MacKenzie directed Jones to contact applicants for licenses, advise them of the cost, collect the bribe in the

Defendant’s main contention concerns the use of wire recordings of conversations, between defendant and Mickey Jones on January 7, 1955, had in her automobile, and especially a conversation at MacKenzie’s home on January 10 in which the three defendants named in the indictment participated. Special agents of the attorney general’s office arranged with Mickey Jones that she have a microphone concealed under her clothing when the meeting occurred in the MacKenzie home. The special agents of the attorney general’s office recorded the conversation which transpired by means of an apparatus installed in their own automobile parked on the street near the defendant’s home. At the trial excerpts of the recordings were read to the jury. This evidence was damaging to defendant’s direct testimony and corroborative for the People. MacKenzie is talking and says: “Mickey, if they had all this information, don’t you know they would sink you and me and everybody, by indicting everybody right down the line on this thing?” “Of course, they would.” “If you don’t think that they give everybody the works on this, uh . . . you’re crazy. Hell, you-. . . you know, the lucky part of this is there’s only one or two.”

Defendant argues that the use of these recordings, obtained as they were, contravenes the unreasonable search and seizure provisions of the State Constitution (art. I, § 19) and also the Fourth Amendment of the Constitution of the United

One invited to enter is not a trespasser. His entry does not become a trespass because he may be alerted to learn facts or to hear damaging declarations either by his natural faculties of hearing and sight or with mechanical and electronic aids of science. On Lee v. United States, 343 U.S. 747 [ 72 S.Ct. 967 , 96 L.Ed. 1270 ] draws this distinction after an extensive review of the search and seizure cases of the United States courts. Justice Jackson, who wrote the court’s opinion, states (p. 753): “But such decisions are inapposite in the field of mechanical or electronic devices designed to overhear or intercept conversation, at least where access to the listening post was not obtained by illegal methods.” In the instant ease the “listening post” was the automobile of the special agents, and their access thereto was lawful. The peaceful entrance of Mickey Jones into MaeKenzie’s parlor on his invitation, though she was equipped with a wireless microphone hidden on her person and went there to get evidence, is neither a trespass nor a lawless act. We find no reason to adopt a rule different from that of the On Lee case under our similar search and seizure law. (Art. I, § 19.) Under the circumstances of this case we believe the court properly allowed the jury to hear the evidence obtained with the aid of the microphone hidden on the person of Mickey Jones.

The judgment and orders are affirmed. The appeal taken by the defendant Avas is dismissed.

Barnard, P. J., and Griffin, J., concurred.

A petition for a rehearing was denied September 4, 1956, and the petition of appellant H.