Opinion
Cr. 1306
5-13-1957
The PEOPLE of the State of California, Plaintiff and Respondent, v. Max OSSLO, Joseph McFaden, Arthur Meyer, Chester D. Hazel, Louis J. Cacio, Paul E. Dempster, Jerry L. Dimitratos and Charles A. Tucker, Defendants and Appellant.*
Aaron Sapiro, Charles M. Arak, Los Angeles, and Charles P. Scully, San Francisco, for appellants. Edmund G. Brown, Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for respondent.
The PEOPLE of the State of California, Plaintiff and Respondent,
v.
Max OSSLO, Joseph McFaden, Arthur Meyer, Chester D. Hazel, Louis J. Cacio, Paul E. Dempster, Jerry L. Dimitratos and Charles A. Tucker, Defendants and Appellant.*
May 13, 1957.
Hearing Granted July 12, 1957.
Aaron Sapiro, Charles M. Arak, Los Angeles, and Charles P. Scully, San Francisco, for appellants.
Edmund G. Brown, Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for respondent.
MUSSELL, Justice.
Appellants were charged in count one of an Indictment with conspiracy to commit the crime of Assault (Pen.Code, § 182) and in a second count with the crime of Assault by Means of Force Likely to Produce Great Bodily Injury (Pen.Code, § 245) in that on or about October 22, 1955, they did wilfully, unlawfully and feloniously commit an assault by means of force likely to produce great bodily injury upon the person of one John H. Maurer, Jr. A jury trial resulted in verdicts finding each of the defendants guilty as charged in both counts of the Indictment. Their motions for a new trial were denied. Appellants Hazel, Cacio, Dempster, Dimitratos and Tucker were denied probation and sentenced to State prison. Probation was granted to appellant Osslo. The period of probation was ten years with the provisions that he be confined for the first six months of the probationary period in the Adult Detention Facility of San Diego county; that he pay a fine in the amount of $1,500 at the rate of $50.00 per month, from his own funds; that during the period of his probation he shall not hold any position, either elective or appointive, in, or receive any remuneration from, any union; that 'this Court and Judge shall retain jurisdiction of this matter throughout the said period of probation and no other department of the Court or other Judge shall modify this order without notice to the Judge who tried the case'. Probation was granted to appellants McFaden and Meyer on similar conditions, except that in Meyer's case the period of confinement was set at three months and the fine imposed was $750.00. Each appellant appeals from the judgment of conviction and the order denying his motion for a new trial. Their contentions on appeal are that the evidence was insufficient; that the court erred in its rulings on the admission of evidence; that the indictment was defective as a matter of law; that the conduct of the deputy district attorney was prejudicial; that the punishment imposed as to appellants Osslo, McFaden and Meyer was improper; and that appellants were denied a fair trial because the case was channeled into a particular court.
The record shows that a jurisdictional dispute arose in San Diego county between the local butchers' union and that of the retail clerks as to whether the butchers or the clerks would handle certain merchandise. Appellant Osslo was secretary-treasurer of the butchers' local and McFaden and Meyer were business agents for it. The other five appellants were or had been merchant seamen and all came from San Francisco to San Diego, ostensibly to accompany and protect the business agents of the San Diego butchers' local.
The five men from San Francisco arrived in San Diego a few days prior to October 22, 1955. They were in contact with appellants Osslo, McFaden and Meyer and attended a union meeting on October 21, 1955. On the following day, after being instructed by appellant Osslo, they accompanied McFaden and Meyer to various markets in San Diego, among which was Ferguson's Market in Chula Vista. They visited this market at about 11:00 a. m., where they conducted a 'slow down' with the butchers there, and left. Appellants McFaden and Meyer, with appellants Tucker, Cacio, Dempster, Hazel and Dimitratos, returned to Ferguson's Market at about 1:00 p. m. The five last named men surrounded John Maurer, Jr., a retail clerk, struck and kicked him, left him lying on the floor and departed hastily from the market. They were arrested shortly thereafter and made false statements to the officers concerning the occurrence in the market and their business in San Diego.
Fifteen overt acts are alleged in the conspiracy charge and relate to conversations and meetings of the appellants and agreements for their compensation. The trial of the action consumed approximately 18 days and there are 2,369 pages in the reporter's transcript. A summary of the testimony of the many witnesses follows.
Appellant Osslo was secretary-treasurer of the Butchers' Union, Local 229, in San Diego. He was also president of the Western Federation of Butchers. Early in September, 1955, there was a strike of the butchers at the Food , basket Market in Pacific Beach. This strike lasted about a week. There were about twenty persons on strike and they reported daily to the butchers' union hall in San Diego. Appellant Osslo and the executive board gave notification for this strike. There had been a complaint of a contract violation in that some twenty-three items containing meat and including 'TV' precooked dinners were being handled in the grocery department. Following this strike, the market brought an injunction action against the butchers' local and its officers, and after the injunction hearing, the disputed items were taken off sale. The contract which had been in effect at the Food Basket Market was up for renewal November 1, 1955.
About October 12, 1955, there was a strike of retail clerks at Ferguson's Market on El Cajon Boulevard. James R. Jackson, a business agent of the butchers' union in San Diego, there observed three pickets carrying signs and about twenty-five other persons, including a Mr. Marvin Brown and Mr. Herbert Langfeldt, business agents for the retail clerks, and possibly a Mr. Edgar Montgomery, Mr. Carroll Weathers and Mr. John Anderson. Jackson stayed in the area for several hours. Other members of the butchers' union, including appellant McFaden, were present, as well as two or three butchers who were employed at other markets. According to Jackson, in the late afternoon he was threatened by Brown and Langfeldt when they walked back in the alley and gave him a 'good look'. He also testified in this connection that before the 12th of October there was an arrangement that a certain number of butchers could be called together to the store where the strike was in progress. Jackson met appellants Dimitratos and Hazel at the butchers' hall on October 17, 1955. Prior to this date appellant Osslo had informed Jackson that Mr. Lundeberg, head of the Sailors' Union of the Pacific, with offices in San Francisco, was sending a couple of men down to San Diego to help the business agents, to go out with them and be their observers and see that they were not 'jumped from behind'. After appellants Hazel and Dimitratos met Jackson and others at the union headquarters on October 17, 1955, they went with Jackson and appellant Meyer to various stores and markets. They were checking contract violations at the markets as pointed out by Jackson and Meyer but their primary purpose was to protect the business agents and see that they were not 'jumped'.
At a union meeting on October 18, Dimitratos and Hazel were introduced to the membership and on the following day they went with Jackson and Meyer to Tang's Market at Pacific Beach. Jackson understood that there was a dispute there regarding merchandise which should be in the meat department and was in the grocery department. When they entered the market, Jackson was told that the clerks were taking all of the red meat. Jackson construed this remark as a threat and reported it to McFaden, who in turn reported it to Osslo. Jackson noted, while in the market, that Mr. Butler, a business agent for the retail clerks, was fumbling and handling a knife. While Jackson was at the market, Mr. Anderson, a business representative for the retail clerks, arrived and, according to Jackson, threatened him in 'the way he carried himself'.
Jackson testified that he understood that Osslo was contacted in Honolulu by McFaden, who asked for and received authorization to bring more men from San Francisco to San Diego; that these additional men were Tucker, Cacio, and Dempster; that they were hired and paid by the union $150.00 per week and necessary expenses. They arrived in San Diego by plane October 19th or 20th. Soon thereafter Osslo returned from Honolulu and on October 21 a meeting with the union membership was held in which the dispute was discussed and Osslo talked of a 'slow down'. At this meeting McFaden stated that Ferguson's Market, as well as others, was not cooperating with respect to frozen foods and a 'slow down' would be effected the following day. Jackson was to contract either Mr. Lindville or Mr. Ferguson at this market. On Saturday, October 22, at about 10:00 a. m., Jackson and his group left for Ferguson's market in two automobiles. One was a Ford, rented by the union, and the other was owned by Meyer. Dimitratos, Hazel, Cacio and McFaden were in the Ford, and Dempster, Tucker and Jackson were in the other car. The group arrived at Ferguson's at about 11:00 a. m. They inquired for Mr. Ferguson and Mr. Lindville and found they were not present. They then carried out a 'slow down' in which most of the butchers went into the meat cutting room and remained there for 35 to 40 minutes. While this was going on, Jackson, McFaden, Dimitratos and Hazel were in the market and the others remained outside in the automobiles. The group then went to two markets in Chula Vista and there conducted a 'slow down' in one of them. They then returned to Ferguson's at about 1:00 p. m. Jackson noticed two clerks' representatives leaning against a post near the stairway. These men were Montgomery and Maurer and they were pointed out to Jackson by Lindville, who was a member of the butchers' union and a partner of Ferguson in the market. About a minute after Jackson and McFaden entered the market, the other members of the group came in. As Jackson and McFaden were talking to Lindville, someone in the store shouted 'fight' and called for Lindville. Jackson did not see the fight but he saw Maurer on the floor, a number of people standing around, and Tucker and Cacio were walking away from Maurer. All of Jackson's group left the market within a minute or so and none of them stopped to render aid to Maurer. Hazel, Cacio, Dempster, Dimitratos and Tucker left in the Ford and the rest of the group in the other car.
There is a conflict in the testimony as to the circumstances surrounding the assault on Maurer. There was testimony to the effect that at about 1:30 p. m., Montgomery, Leland Brooks and John Maurer went to Ferguson's Market with reference to an adjudgment with some of the employees. Brooks spoke with the bookkeeper in the office while Maurer and Montgomery stood in front of the stairway for about 10 minutes, and while standing there, they saw the butchers' representatives coming in the front door. McFaden was entering the store about 30 feet away and with him were about eight men. Montgomery and Maurer had been instructed by the secretary of the San Diego local to get away if any of the representatives of the butchers' local were present and, accordingly, they walked slowly toward the last check stand and the exit. As they turned toward the bakery counter, they were surrounded by Hazel, Cacio, Dempster, Dimitratos and Tucker. There had been no exchange of words between these five men and Maurer and Montgomery when they were surrounded. Some of the five appellants stomped on Maurer's foot and then on Montgomery's foot. Montgomery struck no blows and said nothing to appellants. He was aware that Maurer was struck in the stomach but did not see the blows. He saw Maurer fall forward. Montgomery then went upstairs to call the police and upon returning to the check stand, he saw Maurer lying on the floor, writhing with pain. He was bleeding from the mouth and appeared to be having convulsions. He had a lump on the side of his face and his clothing was torn. The five appellants who had surrounded him had left the store.
Adeline Kann, a checker, testified that she observed Maurer walking away from the check stand in the direction of the exit and then a fight started; that she saw Tucker, Cacio and Dempster grab Maurer, holding his arms and beating him. They were hitting him in the back and neck and when Maurer finally went down, they kicked him hard several times.
Geraldine Walz, who was employed in the bakery section, testified that Maurer was standing, minding his own business, when he was attacked by at least three persons, Tucker, Cacio and Dempster. She did not see Hazel in the altercation directly but knew he was present when the beating was administered.
Maurer testified that he, with Brooks and Langfeldt, went to Ferguson's and went upstairs; that he and Montgomery then came down, looked at the butchers' counter and then went to the front of the store, where they were surrounded by a group of men; that appellant Cacio and Dimitratos were in the group; that someone in the group stepped on his foot and Dimitratos made a derogatory remark to him; that he was struck in the stomach, kicked about the head, stomach and back; that he tried to swing back and defend himself and that he hit Cacio in the stomach; that up to the time of the altercation he had done nothing at all except that he and Montgomery were trying to get to the check stand; that the reason he did not get out of the store was because he was surrounded by the men and that Dimitratos was in front of them; that when they tried to go through the check stand, Dimitratos said something to him.
Herbert Langfeldt, an organizer for the retail clerks' union in San Diego, testified that he became aware of a strike at the Food Basket Market in Pacific Beach in September, 1955; that as a result of this strike, the clerks began to take 'a sharper look' at what was happening with respect to a 'jurisdictional steal'; that he contacted Osslo following the walkout at the Food Basket Market and there was a meeting with Osslo and local union representatives of the retail clerks held some time prior to October 8, 1955. McFaden, Meyer and Jackson were at this meeting; that Osslo there said that the butchers were going to 'show us' and were going to handle the disputed merchandise; that Osslo pounded on his desk and stated that he was 'top man' on the west coast and 'that was it'; that as a result of the strike and this meeting, he (Langfeldt) and his colleagues alerted the secretaries of the retail clerks' unions of southern California and asked if they could send representatives to assist with respect to observing the markets and in helping to prepare a petition to the National Labor Relations Board; that on October 22 he went to Ferguson's Market to inform the management that a 'slow down' had been ordered and to alert them to the situation and also to inform them that if there was anything the clerks' representatives could do for them, to let them know; that he arrived at Ferguson's at about 12:30 p. m.; that he, Maurer, Montgomery and Brooks stopped at the liquor counter and spoke briefly to the clerk. The group then started up the stairway and Maurer and Montgomery went back down; that he noticed them moving toward the south exit and also observed a group of men coming into the market; that this group pursued Montgomery and Maurer and surrounded them; that he saw Montgomery jump through a group of customers and run to the back of the store and at the same time saw Cacio strike Maurer in the stomach; that Maurer was unable to get past the customers because of a railing and a number of shopping carts; that Maurer was pursued and 'clobbered pretty heavily' until Dempster and Tucker got hold of him and rendered him helpless; that Dimitratos and Hazel attempted to get Montgomery but he got away; that they then started beating Maurer; that Maurer was 'knocked into submission' quickly and dropped to the floor where he was kicked in the back and side; that appellants then left the market; that he saw Dimitratos strike Maurer 15 or 20 'judo chops' during the beating and also saw Hazel strike Maurer a number of times; that several days before, the retail clerks' representatives had received instructions to leave a store when members of the butchers' union arrived and that they had these instructions after they had heard through the 'grapevine' that a 'goon squad' had been ordered from San Francisco.
The appellants claim, in this connection, that the five men who came down from San Francisco were employed to protect the business agents of the butchers' union in San Diego from intimidation by the members of the retail clerks' union. Dimitratos testified he undertook to have additional men brought down to San Diego besides himself and contacted Hazel following a telephone conversation on October 19 between McFaden and Osslo, who was then in Honolulu; that Hazel secured Dempster, Tucker and Cacio; that he, Hazel, Cacio, Dempster and Tucker attended the meeting of the butchers' union on the night of October 21, following a meeting with Osslo in which Osslo referred to instructions previously given by McFaden; that Osslo stated that the mere fact of the presence of Dimitratos and his group would avoid trouble and trouble was not wanted; that on October 22, when they went to Ferguson's Market the second time, he went over to the meat department; that Hazel went on back and Dempster, Cacio and Tucker were behind him; that he heard a big noise and walked on by and saw Cacio and Tucker walk out; that he did not see any altercation or fight and was no where near a fight.
Hazel testified that he belonged to the sailors' union; that he came to San Diego with Dimitratos and was to be paid $150.00 per week, plus expenses; that he went to the meetings at the butchers' hall on October 19 and 21 and went with the others to various markets; that on October 22 he went to back to Ferguson's Market at about 1:00 p. m.; that Jackson, Meyer and McFaden walked into the store first; that he and Dimitratos followed with the rest of the men, or behind them; that he walked to the back of the store and started talking to a Miss Healy and someone screamed 'fight'; that he walked out of the front of the store and didn't see anything of the fight.
Appellants Osslo, McFaden, Meyer and Tucker did not testify at the trial.
Appellants Cacio, Dempster, Dimitratos and Tucker left Ferguson's Market together in the Ford automobile and were stopped by deputy sheriffs after a two mile pursuit. When questioned by the officers, Dempster stated he was down from San Francisco on a vacation and came down with a couple of friends, Tucker and Cacio. When asked if he was at Ferguson's Market the afternoon of the fight, he said that he was there but did not know anything about a fight; it was all a surprise to him. He testified that he attended a union meeting and denied that he had any connection with the butchers' union in the area. Tucker stated to the officers that he lived in San Francisco and that he came to San Diego with a friend (Cacio) to do some drinking and visit Tiajuana. When asked if he had been to Ferguson's Market on the afternoon of October 22nd, what type of automobile he had gone in and with whom, he refused to make any statements about these matters and said he wanted to see an attorney first. Dimitratos stated to some of the officers that he had come down to San Diego with a friend (Hazel) for a little visit and vacation; that he had gone with some men from the butchers' union, including McFaden, to visit stores in the area; that on one occasion when they were at Tang's Market in Pacific Beach, eleven men from the retail clerks' union showed up; that nothing happened; that they looked pretty tough and as he and the butchers' men were outnumbered, they left; that he rode to Ferguson's Market with McFaden, Dempster and Hazel; that they all went into the store together but that trouble began and they all turned around and left. Cacio told a police officer on October 22nd that he had run into Dempster and Tucker in a bar in San Francisco and that they all decided to go to Tiajuana. When questioned about the fight at Ferguson's Market, he could remember vaguely being kicked or hit but could not remember hitting anyone. He denied knowing Jackson or McFaden or knowing anyone connected with the butchers' union. Hazel told one of the officers that he was a teamster, employed in San Francisco, and that Dimitratos had asked him to come to San Diego on a vacation. He denied knowing anything about the fight at Ferguson's and stated that he went into the store and was talking to a girl and after a brief conversation with her, left the store.
The record further shows that the butchers' local in San Diego paid $4,500 bail bond premiums for Hazel, Cacio, Dempster, Dimitratos and Tucker; that they were paid a salary and expenses by the union and a defense fund was collected for them. Evidence was introduced showing that there were many telephone calls between the appellants and others involved in the labor dispute and that these calls were paid for by the butchers' union.
The first contention presented by appellants is that the verdict and the judgment are not sustained by the evidence; and that the verdict and judgment are contrary to the evidence and the law. Appellants admit that Osslo had a conversation with Lundeberg; that Dimitratos and Hazel met in San Diego; that McFaden made reservations at the U. S. Grant Hotel in San Diego at Osslo's request; that McFaden, Dimitratos and Hazel met at the U. S. Grant Hotel on or about October 15, 1955; that Dimitratos and Hazel met at the butchers' local on October 17; that Dimitratos, Hazel, Meyer and representatives of the butchers' local No. 229 met at Tang's Market on or about October 18th; that Dempster, Cacio and Tucker met in San Diego on or about October 21st; that Dempster, Cacio, Tucker, Dimitratos and Hazel, on or about October 21, 1955, met at the Ace Motel in San Diego; that Dempster, Cacio, Tucker, Dimitratos and Hazel, on or about October 22nd, accompanied defendants McFaden and Meyer to Ferguson's Market; that defendants Dempster, Cacio, Tucker, Dimitratos and Hazel, on or about October 22nd, were in a Ford sedan in San Diego and that the car was leased by butchers' local No. 229, all as alleged in overt acts 1 to 10, inclusive, of the Indictment. Appellants do not deny that Osslo and McFaden agreed to pay Dimitratos, Hazel, Tucker, Dempster and Cacio a weekly salary and expenses as stated in overt acts 11 to 15, inclusive, of the Indictment. While appellants admit the overt acts alleged, they claim that these acts cannot be sustained as acts 'in furtherance of a conspiracy to commit an assault as alleged' and that there is no evidence to justify the inference that any assault or engagement of men was due to a plan or plot or design to do anything illegal or improper at any place or at any time. We are not in accord with this contention.
Overt acts need not be in themselves criminal in nature so long as they are done in pursuance of the conspiracy. Nor is it necessary that the purpose of the conspiracy be fully accomplished or that each conspirator perform some overt act. It is sufficient if one conspirator commits an overt act in carrying out the purpose of the conspiracy, for all the members thereof are bound by all acts of all members done in furtherance of the agreed plot. People v. Robinson, 43 Cal.2d 132, 139, 140, 271 P.2d 865. And as is said in that case in 43 Cal.2d at page 136, 271 P.2d at page 868: 'A conspiracy can generally be established only by circumstantial evidence. It is not often that the direct fact of a common unlawful design can be proved other than by the establishment of independent facts bearing on such design.' In the instant case the evidence was sufficient to warrant the jury's inference that a plan and agreement existed between the appellants to commit an assault and that the overt acts performed by them were in accordance with and in furtherance of their unlawful plan and agreement.
The witness Langfeldt testified that at a meeting prior to October 8, 1955, attended by McFaden, Meyer and union representatives, Osslo stated that the butchers were going to 'show us' and were going to handle the disputed merchandise; that Osslo pounded on his desk and said that he was 'top man' on the west coast and 'that was it'. Apparently, the two unions involved were unable to settle their dispute amicably and the jury could reasonably infer from the acts and conduct of Osslo and McFaden that they intended to use other than peaceful means to accomplish the purpose of having the butchers handle the disputed merchandise; that Osslo, McFaden and Meyer procured the services of the five sailor appellants for the purpose of intimidating the retail clerks by their appearance and if this was not sufficient, to use force and violence. In this connection it should be noted that no effort was made to employ local union men to accompany the butchers' representatives on their visits to various markets. If the purpose of the appellants was to protect such representatives and keep them from being 'jumped' and to act as observers, it is apparent that this could well have been accomplished by other means than the importation of the five members of the Sailors' Union from San Francisco. It may also be observed in this connection that when the five sailors were taken into custody by the officers they did not state that their purpose in coming to San Diego was to act as observers but claimed that they were on vacations.
There was evidence that some of the butchers' representatives thought they had been threatened by members of the retail clerks' union. In one instance the claimed threat consisted of a 'good look', another by the way in which a business representative for the clerks 'carried himself', and the other where a representative of the clerks was 'fumbling and handling a knife'. The jury could reasonably determine that these circumstances were not sufficient to justify the hiring of the five appellant sailors from San Francisco.
There is evidence in the record from which the jury could find that the five sailors, with appellant McFaden and under the direction of appellant Osslo, entered Ferguson's Market together and almost immediately surrounded Montgomery and Maurer, who were pointed out to them as representatives of the retail clerks; that the assault on Maurer was unprovoked and was unnecessary to accomplish the claimed purpose of the appellants in entering the market. The evidence further shows that the five appellants fled from the scene and left Maurer lying on the floor. It further appears that the five appellants were paid by the butchers' union, a defense fund was collected for them and their bail bond premiums were paid by the butchers' local.
It is the function of the jury in the first instance, and of the trial court after verdict, to determine what facts are established by the evidence, and before the verdict of the jury, which has been approved by the trial court, can be set aside on appeal upon the ground of insufficiency of the evidence, it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below. 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. People v. Mazza, 135 Cal.App.2d 587, 596, 287 P.2d 798. Viewing the entire record before us in accordance with these rules, we conclude that the verdict and judgment are sustained by the evidence.
It is next contended that the court erred in admitting the testimony of Capt. Hodson and Robert Frediana (Chief Ship's Clerk, United States Coast Guard) as to entries in log books of steamships showing that Dimitratos and other appellants in 1951 and 1952 were involved in altercations on board ship. The attorney general contends that this evidence was admissible under the case of People v. Sykes, 44 Cal.2d 166, 170, 280 P.2d 769, 771, where it is said: '* * * The test for admissibility is: 'does it tend logically, naturally, and by reasonable inference, to establish any fact material for the people, or to overcome any material matter sought to be proved by the defense? If it does, then it is admissible, whether it embraces the commission of another crime or does not, whether the other crime be similar in kind or not, whether it be part of a single design or not.''
The court admitted this evidence as applying to the conspiracy count only and so instructed the jury. Furthermore, defense counsel, on direct examination of the witness Dimitratos, introduced evidence in detail as to the instances referred to in the log books. Under the circumstances shown, we conclude that there was no reversible error in this connection.
Appellants complain of the admission of testimony relating to a Wall Street strike, a strike in Oakland, and a Western Union strike, which testimony tended to show the involvement of members of the Sailors' Union of the Pacific, of which Mr. Lundeberg was the head, in labor disputes with which said union was not directly concerned. The admissibility of this testimony may well be questioned. However, under the rule announced in People v. Sykes, supra, and the circumstances of this particular case, we cannot hold as a matter of law that the error, if any, was sufficient to justify a reversal of the judgments.
The claim is made that the court improperly admitted the testimony of a Mr. Hewlett, an official of the telephone company, indicating telephone calls between some of the defendants and the organizations to which they belonged. This testimony was relevant to show the connection between the various appellants as a circumstance indicating that the persons involved were a part of the conspiracy and acting in concert. People v. Griffin, 98 Cal.App.2d 1, 34-38, 219 P.2d 519.
It is argued that the court erred in permitting the testimony of Capt. Roland to be presented; that this testimony related to the arrest of one Carroll Weathers after the incident of October 22nd, after the alleged conspiracy had ended, and was therefore inadmissible. However, this evidence was relevant as an indication that the appellants were attempting to show a justification for their conduct and to impede an investigation. It was therefore, not prejudicially erroneous. People v. Tinnin, 136 Cal.App. 301, 306, 28 P.2d 951.
Appellants claim that the court erred in refusing to permit witness Jackson to testify as to reports made to Osslo, which caused him (Osslo) to telephone to Lundeberg in San Francisco for men to go with his business agents on their visits to stores in San Diego. An offer of proof was made by the defense that the witness would testify that McFaden related his experience to Osslo and that McFaden had stated that he believed his life was in danger. No prejudicial error is indicated in this connection. People v. Monson, 102 Cal.App.2d 308, 313, 227 P.2d 521.
Appellants next contend that as a matter of law the Indictment charging 'conspiracy to commit the crime of assault, 182 Penal Code' did not charge a crime known to or punishable under the laws of this state. This contention is without merit. Section 182, subdivision 1, of the Penal Code provides various punishments if two or more persons conspire, among other things, 'to commit any crime'. Among the penal paragraphs it provides that when said persons 'conspire to commit any crime against the person of any official specified in subdivision 6, they are guilty of a felony and are punishable by imprisonment in the state prison for not less than 10 years. When they conspire to commit and other felony, they shall be punishable in the same manner and to the same extent as is provided for the punishment of the said felony. If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony defendant conspired to commit. If the degree is not so determined, the punishment for conspiracy to commit such felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree. If the felony is conspiracy to commit two or more felonies which have different punishments and the commission of such felonies constitute but one offense of conspiracy, the penalty shall be that prescribed for the felony which has the greater maximum term.' Appellants contend that while subdivision 1 of Penal Code section 182 refers to the commission of 'any crime' and while such phrase, taken alone, is broad enough to include a misdemeanor assault, this does not mean that it is 'described' as required by the final paragraph concerning punishments in said section and that, consequently, no crime was charged in count one of the Indictment.
In Doble v. Superior Court, 197 Cal. 556, 566-567, 241 P. 852, 856, the court, in discussing the meaning of 'any crime', as used in the statute, said: 'This latter penal paragraph commences, 'When they conspire to do any of the other acts described in this section. * * *' The quoted words are sufficiently broad to include within the purview of the paragraph all of the offenses created by the five subdivisions of the section and for which no penalty is imposed by the first penal paragraph. That is to say, the words 'any of the other acts described in this section,' were meant to, and do in fact, include all other conspiracies to commit crimes or acts prohibited by the section regardless of whether they are denounced by subdivision 1 or any other subdivision thereof. Therefore, in this second penal paragraph we find the penalty that is to be imposed upon those conspiring to commit any of the crimes or acts denounced by subdivisions 2, 3, and 4, and that which is to be imposed for a conspiracy to commit any and all misdemeanors, whether defined by the Penal Code or by any other statute, and for conspiracies to commit all felonies which are defined and penalized by some law other than the Penal Code. In other words, the second penal paragraph, in addition to prescribing the punishment for conspiracies to commit the crimes or acts specified in subdivisions 2, 3, and 4 of the section, also prescribed the punishment for all offenses denounced by subdivision 1 and for which the first penal paragraph does not prescribe a punishment; namely, conspiracies to commit any and all misdemeanors, not included in those enumerated in subdivision 5, and conspiracies to commit all felonies prescribed by some general law of the state other than the Penal Code.'
As is said in People v. Buffum, 40 Cal.2d 709, 715, 256 P.2d 317, 319: 'A conspiracy may be established by showing that there was an agreement between two or more persons to commit a crime and that an act was done in California to effect the object of the agreement.'
In People v. Cossey, 97 Cal.App.2d 101, 112, 217 P.2d 133, it was held that the superior court possessed jurisdiction to try the defendant for conspiracy to commit the crime of petty theft.
The next contention is that the misconduct of the district attorney was highly prejudicial and resulted in a miscarriage of justice. Appellants devote many pages of the opening brief to comments made by the district attorney and questions put by him to various witnesses. In many of the instances related, objections to the questions asked and statements made were sustained by the court. The jury was instructed, both at the beginning and end of the trial, to disregard any stricken evidence; that the argument of counsel was not evidence; that if any counsel intimated by any of his questions that certain hinted facts were or were not true, that they must disregard any such intimation and must not draw any inference from it; that as to any statements made by counsel in their presence concerning the facts of the case they must not grgard such statement as evidence; that they were the exclusive judges of the facts and their effect and value of the evidence. In his opening statement to the jury the deputy district attorney stated that what he was about to say was neither evidence nor an argument. He stated that if in any way the jury's version of the evidence was different from his, the jury should take its own version. We have examined the many specifications of alleged misconduct and conclude that under the circumstances there was no prejudicial error in this connection.
Appellants Osslo, McFaden and Meyer contend that the punishment imposed as to each of them is improper and constitutes a cruel and unusual punishment; that they were each convicted of a misdemeanor only, in that the court imposed no term of imprisonment in the state prison; that it was neither a suspension of imposition of a sentence nor execution of a sentence and that, consequently, the proposed term should be considered void and that the probationary terms were unduly severe. The record shows that the appellants applied for probation; that following the denial of their motions for new trial and the pronouncement of judgment as to the five sailor appellants, the court stated that he was going to grant probation to Osslo, McFaden and Meyer. Separate probationary orders were made as to each of said appellants. In In re Hays, 120 Cal.App.2d 308, 310, 260 P.2d 1030, 1032, the nature of probationary procedure was discussed and the court there said: 'The general nature of the entire probationary procedure is likewise well settled. As said in In re Martin, 82 Cal.App.2d 16, 22, 186 P.2d 645, 649, 'An order placing a defendant on probation, even though it include as a condition a period of detention in the county jail, is not a judgment and sentence.' There is no finality to an order for probation; it imposes no penalties but is 'an act of clemency.' A defendant has the undoubted right to refuse probation,--a necessary safeguard against the possibility that probationary conditions may be more onerous than sentence. People v. Frank, 94 Cal.App.2d 740, 742, 211 P.2d 350, citing People v. Billingsley, 59 Cal.App.2d Supp. 845, etc., 139 P.2d 362.'
Each appellant was found guilty of assault as specified in Penal Code, section 245, for which the maximum punishment is imprisonment in the state prison not exceeding ten years. Each fine imposed is less than the $5,000 maximum specified in Penal Code, section 245, and section 182 under which the appellants were also found guilty. It therefore appears that the periods of probation and of detention were not in excess of the periods specified in section 1203.1 of the Penal Code.
The granting or withholding of probation is a matter that rests entirely in the sound discretion of the trial court (People v. Blankenship, 16 Cal.App.2d 606, 610, 61 P.2d 352), and the only right which an applicant for probation possesses is that his petition shall receive consideration by the court. People v. Frank, 94 Cal.App.2d 740, 211 P.2d 350. It does not appear that the appellants were convicted merely of misdemeanors. A crime such as specified in section 245 of the Penal Code and the applicable part of section 182 thereof is a felony, unless the trial court exercises its discretion and imposes a county jail sentence or fine. People v. Williams, 27 Cal.2d 220, 228-229, 163 P.2d 692. In the instant case sentence was suspended by placing the appellants on probation.
Finally, appellants contend that they were denied a fair trial because the case was 'intentionally channeled' into a particular court for trial. However, they do not claim that they were denied their rights to a speedy trial in the sense that the case was not set for trial within the time limits set in sections 1050 and 1382 of the Penal Code. The record shows that there were numerous delays and continuances of the trial which were occasioned by the business of the court. No abuse of discretion appears in this connection.
An examination of the entire record in this case leads us to the conclusion that there were no errors herein resulting in a 'miscarriage of justice' within the meaning of that phrase as determined in People v. Watson, 46 Cal.2d 818, 835, 299 P.2d 243, 245.
The judgments and orders denying motions for new trial are affirmed.
BARNARD, P. J., and GRIFFIN, J., concur.
Hearing granted; PETERS and DOOLING, JJ., pro tem., sitting in place of TRAYNOR and SCHAUER, JJ. --------------- * Opinion vacated 323 P.2d 397.