People v. Entriken , 106 Cal. App. 29 ( 1930 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] An indictment was returned by the grand jury of Imperial County charging appellants and Y. Takahashi, an alien Japanese, with the crime of conspiring together in the making of a lease of agricultural lands in violation of the Alien Land Law of the state of California. The case was dismissed against Takahashi to enable him to become a witness for the People, and the jury found the appellants guilty as charged.

It appears that appellants were the owners of the land in question. Some time prior to July 1, 1928, Takahashi went into possession of the land and began to farm it. In November, 1928, a written lease was signed under date of July 1, 1928, with appellants appearing therein as lessors and K. Kosuzume as lessee. The lessee's name was signed to the lease by Takahashi without any authority. In fact, there is a strong intimation in the record that Kosuzume was a fictitious person who had no existence outside of Takahashi's mind. Takahashi remained in possession of the land and continued to farm it with the knowledge of appellants. He paid them the annual rent prior to July 1, 1928, by giving them $40 in cash and $510 in the form of his personal check. When Takahashi first broached the question of a lease on the land he was told by appellants that they could not lease to him as he was an alien Japanese, but that they would lease to a citizen of the United States. When the lease bearing the name of Kosuzume upon it was presented to them, neither of the appellants had ever seen such a person and possessed no information that he existed, or if he did exist, that he was not an alien Japanese. Takahashi was born in Japan, which country he left in 1903, landing in San Francisco. Appellants knew that he was not a citizen and refused to lease their land to him. Neither of them made the slightest effort to learn anything about Kosuzume and showed neither interest in their purported tenant nor even curiosity about him.

[1] Appellants maintain that the indictment did not charge a public offense against them, it charging that they "did wilfully, unlawfully and feloniously conspire together" and omitted to charge that this was done "knowingly." This question has been decided adversely to appellants in the case of People v.Calvert, 93 Cal.App. 568 [269 P. 969], where it was held that to do a thing wilfully is to do it knowingly.

[2] Appellants complain of certain alleged misconduct on the part of the district attorney in the presence of the jury. Immediately following the first alleged misconduct the district attorney withdrew his remarks and the jury was promptly instructed to disregard them, thereby curing the error, if any there was. (People v. Ong Mon Foo, 182 Cal. 697 [189 P. 690]; People v. Beggs, 178 Cal. 79 [172 P. 152].) [3] The other remarks assigned as error were as follows:

"By Mr. Birkhauser:

"Q. The District Attorney of the County of Imperial, State of California, told you, Takahashi that if you would testify in this case on behalf of the People of the State of California, he would dismiss the charge against you, did he?

"A. Yes, sir.

"Mr. Birkhauser: That is all.

"Questions by Mr. Patterson:

"Q. Where did I tell you that?

"A. No.

"Q. What do you mean by no, I did or I didn't tell you that?

"A. The District Attorney did not tell me such a thing.

"Q. Now Takahashi —

"Mr. Birkhauser: He did dismiss the charge. It must have been a surprise to you when he has testified.

"Mr. Patterson: Since we dismissed it, it is not necessary, and the insinuation that has been made here that it was a surprise to us that he testified. We have his statement before the Grand Jury and before this was ever taken to the Grand Jury. There was one made in my office. The insinuation has been made it was a surprise to me that he made any testimony. If we hadn't known about it, we would not have dismissed. We knew we had this record twice against him, and to let the insinuation pass after we had him twice, once before it went before the Grand Jury and then after it went to the Grand Jury —

"Mr. Birkhauser: I assign all the remarks of the District Attorney as prejudicial misconduct."

It will be noted that the remarks could be understood in no other way than that they referred to Takahashi and not to appellants. We cannot see how they could prejudice them. Takahashi is not in any position to complain as the charge against him was dismissed. In his testimony he freely and fully admitted his guilt. This evidence was before the jury and the statements of the district attorney added little to this testimony which the jury was bound to consider. [4] No other remarks were assigned as error and while we have read those complained of by appellants, we will not lengthen this opinion with a discussion of them. They were not sufficiently prejudicial to require a reversal of the judgment and in the absence of assignments of error we must decline to review them. (People v.Ong Mon Foo, supra; People v. Dominguez, 61 Cal.App. 282 [214 P. 448]; People v. Goodwin, 105 Cal.App. 122 [286 P. 1087].)

[5] Appellants complain of instructions given by the trial court and others proposed by them and refused by it. They particularly complain of the refusal of the trial court to give the following:

"The thing requiring corroboration in the case, is the conspiracy to violate the Alien Land Law, namely that Entriken and Thompson and Takahashi all conspired together, that Entriken and Thompson, the owners of the land, would lease to Takahashi their land, knowing that Takahashi by reason of his alienage was debarred from using, enjoying, occupying, transferring, or holding land or any interest therein for agricultural purposes, by means of substituting some other person's name in the lease, permit Takahashi to secure the benefits of his farming of the land, by the raising of crops thereon; that Entriken and Thompson conspired with Takahashi that Takahashi should forge the name of K. Kosuzume to the lease; Takahashi's testimony as to any or even all of these facts, standing alone is not sufficient to connect the defendants Entriken and Thompson with this crime. There must be some evidence independent of Takahashi's and without his testimony, tending to prove the defendants Entriken and Thompson aided or abetted him or counseled and advised him in the commission of the crime."

Particular attention is called to the clause in the proposed instruction as follows: "That Entriken and Thompson conspired with Takahashi that Takahashi should forge the name of K. Kosuzume to the lease." This attempted to inject an unnecessary and foreign element into the case. It is not a necessary element of the crime of conspiracy to violate the Alien Land Law, that the parties should conspire together to have one of their number commit the crime of forgery. While the conclusion that a forgery was committed is necessary from the evidence, it was not admitted by the appellants, who attempted to combat it as best they could. The instruction was not a proper statement of the law and was properly refused. It was also unnecessary (People v. Osaki,209 Cal. 169 [286 P. 1025, 1027]). The instructions as given were fair, full and complete and we find no error in them.

[6] The evidence of the accomplice Takahashi was sufficiently corroborated by other evidence in the case. "His associates were persons of the Japanese race. His racial appearance and characteristics were before the jury and the trial judge" (People v. Osaki, supra), and that he was a Japanese alien was conceded by the appellants in all their dealings with him. That Kosuzume existed only in the minds of the conspirators seems certain, as does the conclusion that Takahashi adopted and used the name "K. Kosuzume" for the purpose of the lease only, which was, in fact, made to him alone. Takahashi being the real lessee acting under a fictitious name and appellants knowing that he was an alien ineligible for citizenship, and, knowing this, leased their agricultural lands to him, their guilt was amply proven and the judgment against them cannot be disturbed. The actions and conduct of appellants in their dealings with Takahashi furnish strong evidence corroborating the testimony of the accomplice. [7] "The law is well settled that the testimony of the accomplice need not be corroborated by direct evidence. The entire conduct of the defendant may be looked to for the corroborating circumstances and if from those circumstances the connection of the accused with the crime may be fairly inferred, the corroboration is sufficient. (People v. Yeager, 194 Cal. 452 [229 P. 40; People v. Martin, 102 Cal. 558 [36 P. 952]; People v. Demera, 64 Cal.App. 121 [220 P. 673].)" (People v. Nikolich, 93 Cal.App. 356 [269 P. 721, 722].)

Judgment affirmed.

Barnard, Acting P.J., concurred.