People v. Hardeman (244 Cal. App. 2d 1, 1966)

SIMS, J.

Defendant has appealed from an order granting him probation following jury verdicts which convicted him of conspiracy to pervert and obstruct justice and the due administration of the laws in violation of subdivision 5 of section 182 of the Penal Code, and of conspiracy to commit arson in violation of subdivision 1 of that section.

On October 8, 1964, an indictment was returned charging defendant and one Wiekholm with conspiracy to pervert and obstruct justice in Count I, defendant and Wiekholm and one Sherman with arson in Count II, and the same three with conspiracy to commit arson in Count III. The motion of this defendant to have the indictment set aside under the provisions of section 995 of the Penal Code was denied, and his general and special demurrer to Count I of the indictment was overruled. Following the entry of not guilty pleas, the matter was regularly set down for trial and tried commencing January 26, 1965. On March 9, 1965, after 23 days of trial and approximately 19 hours of deliberation, the jury returned verdicts finding defendant and Wiekholm guilty as charged in Count I; Wiekholm and Sherman guilty as charged in Count II, and all three guilty as charged in Count III. Disagreement was reported as to the guilt of this defendant on Count II and the court ordered a mistrial as to him on that count. On March 26th imposition of sentence was suspended and the defendant was admitted to probation. This appeal ensued. No appeal has been taken by Wickholm or Sherman.

Defendant seeks review of the following matters: (1) the order overruling his demurrer to Count I of the indictment; (2) the order denying his motion to dismiss the indictment under the provisions of section 995 of the Penal Code; (3) rulings in regard to the admission of testimony, particularly, (a) a monitored and recorded telephone call between defendant and a woman then living with Wickholm who subsequently became his wife, and (b) extrajudicial declarations of the defendant and of his codefendants; (4) the sufficiency of the evidence to support the verdicts; (5) alleged errors in giving and refusing to give instructions; (6) alleged prejudicial misconduct of the prosecutor; and (7) the order of the court which allegedly subjects him to double punishment.

An examination of the facts bearing on the foregoing issues and the principles of law applicable thereto, as hereinafter set forth, leads to the conclusion that the court erred in special instructions given in answer to inquiries by the jury, that such error was prejudicial and that that defendant’s conviction on Count III must be reversed. The other errors of which complaint has been made are either groundless or not prejudicial and the conviction on Count I should be affirmed.

I. No Prejudicial Error Was Committed In Overruling The Demurrer To Count I Of The Indictment.

A. Defendant received adequate notice of the offense which he was charged with committing.

Defendant recognizes the provisions of section 960 of the Penal Code which provide: No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits.” He asserts that in this case, however, he was prejudiced because he could not know the nature or identity of the criminal offense with which he was charged. The questions of whether the allegations of Count I stated a public offense, and, if so, the nature of that offense impregnated the entire trial because they affected the decisions as to the admissibility of evidence offered by the prosecution against defendant, the theories on which the case was submitted to the jury through the court’s instructions, and the question of whether defendant has suffered either two convictions or double punishment for the same conduct.

In Count I it is alleged: “The Grand Jury of the County of Santa Clara, State of California, hereby accuses Maurice H. Hardeman and Kenneth G. Wickholm of a felony, to wit, a violation of Section 182.5 [sic] of the Penal Code of the State of California (Conspiracy to Pervert and Obstruct Justice), in that on or about and between October 7, A.D. 1961 and October 6, A.D. 1964, in the County of Santa Clara, State of California, they did wilfully and unlawfully conspire, combine, confederate and agree together to pervert and obstruct justice and the due administration of the laws.” There follows a recital of 24 alleged overt acts of which 17 are attributed to defendant, 6 to Wickholm and one to them both jointly. Examination of the content of these allegations is deferred to a subsequent exploration of their effect on the sufficiency of the pleading.

That portion of section 182 of the Penal Code which is in question here reads as follows: “If two or more persons conspire: ... 5. To commit any act injurious to the public health, to public morals, or to pervert or obstruct justice, or the due administration of the laws. . . . They are punishable as follows: [There follows specific provisions for the punishment of conspiracy to commit (1) ‘any crime against the person of any official specified in subdivision 6,’ (2) ‘any other felony,’ (3) ‘two or more felonies,’ (4) ‘any of the other acts described in this section. ’] ’ ’

Attacks on the constitutionality of this subdivision of the section have been consistently overruled. (Calhoun v. Superior Court (1955) 46 Cal.2d 18, 31 [291 P.2d 474]; Lorenson v. Superior Court (1950) 35 Cal.2d 49, 59-61 [216 P.2d 859] ; Davis v. Superior Court (1959) 175 Cal.App.2d 8, 13-17 [345 P.2d 513] ; People v. Sullivan (1952) 113 Cal.App.2d 510, 519-521 [248 P.2d 520] ; but cf. Musser v. Utah (1948) 333 U.S. 95, 96-97 [68 S.Ct. 397, 92 L.Ed. 562] ; State v. Musser (1950) 118 Utah 537, 539 [223 P.2d 193, 194] ; and In re Newbern (1960) 53 Cal.2d 786, 792 and 797 [3 Cal.Rptr. 364, 350 P.2d 116].)

In Lorenson the opinion concluded as follows: “Considering the well-settled meaning at common law of the words ‘to pervert or obstruct justice or the due administration of the laws,’ the other and more specific provisions in the Penal Code concerning ‘ Crimes Against Public Justice, ’ and the relative certainty of words employed in statutes which have been held valid, it cannot be said that subsection 5 of section 182 of the Penal Code is unconstitutional.” (35 Cal.2d at pp. 60-61.)

Defendant acknowledges that the statutory provisions have been so upheld, but asserts that it is nevertheless improper to charge him in the bare words of the statute because the provisions of the statute alone 1 ‘ seem to be warrant for conviction for agreement to do almost any act which a judge and jury might find at the moment contrary to his or its notions of what was good for health, morals, . . . justice or order.” (Musser v. Utah, supra, 333 U.S. at p. 97.) The indictment, he asserts, therefore, offends the requirement of the Sixth Amendment to the United States Constitution which recites: “In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation, ...” In United States v. Cruikshank (1875) 92 U.S. 542 [23 L.Ed. 588], the opinion recites: “The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity of time, place and circumstances.” (92 U.S. at p. 558.) The opinion further suggests that where conspiracy is charged “it is necessary for the indictment to state the means proposed, in order that the court may see that they are in fact illegal” (pp. 558-559). It points out that where conspiracy to commit a certain class of crime is an offense, “The accused has . . . the right to have a specification of the charge against him in this respect, in order that he may decide whether he should present his defense by motion to quash, demurrer, or plea; and the court, that it may determine whether the facts will sustain the indictment” (p. 559). In support of this contention, attention is directed to the reference in Lorenson to the fact that “Crimes Against Public Justice” are collected and set forth in Title VII (§§ 92-185) of Part I of the Penal Code. It is urged that the indictment to be valid must set forth one or more of the offenses therein contained, in addition to the general charge, or else be void for uncertainty because it would leave the accused subject to defending himself from a conspiracy to commit any one or more of the numerous crimes designated in that title. Some support is given this view by the fact that in those cases in which subdivision 5 has been before the courts the allegations of the charge in the indictment generally have been accompanied by a reference to a specific act or acts which, as an object of the conspiracy, brought it within the general prohibition of the statute, to wit: “to use [an officeholder’s] official position . . . for their private gain by collecting funds from licensees and applicants for licenses” and “to prepare . . . false . . . papers, records . . . for fraudulent and deceitful purposes upon trials, proceedings and inquiries authorized by law” (Calhoun v. Superior Court, supra, 46 Cal.2d at pp. 20 and 34); “namely, § 4200, et seq., Health and Safety Code, State of California” (People v. Olson (1965) 232 Cal.App.2d 480 at p. 488 [42 Cal.Rptr. 760]); “to commit a crime, to wit: Violation of section 4570 of the Penal Code ...” (Davis v. Superior Court, supra, 175 Cal.App.2d at p. 13); “to use the official position of city manager . . . for an unlawful purpose ...” (People v. Sullivan, supra, 113 Cal.App.2d at p. 513) ; “by presenting . . . a fraudulent, worthless and void bail bond” (People v. Ambrose (1916) 31 Cal.App. 460, 461 [160 P. 840]).

On the other hand it appears that Musser actually only reviewed that portion of a similar statute which recites: “To commit any act injurious ... to public morals” (333 U.S. at p. 96: 118 Utah at p. 538 [223 P.2d at p. 194]). Lorenson, however, specifically refers to that portion of the statute relating to a conspiracy “to pervert or obstruct justice or due administration of the law.” The reference to the specific crimes in Title VII of Part I of the Penal Code is only one of the three pilings of the dolphin of constitutionality to which the opinion moors the foregoing provisions. It also noted: “Such an offense was recognized at common law and generally punishable as a misdemeanor” (35 Cal.2d at p. 59), and “a statute is sufficiently certain if it employs words of long usage or with a common meaning 1 notwithstanding an element of degree in the definition as to which estimates might differ. ’ [Citations.] ” (P. 60.) After determining that the provisions of subdivision 5 are constitutional, the opinion unqualifiedly concludes: “For substantially the same reasons, the indictment against Lorenson is not vague, indefinite, or uncertain and it complies with the statutory requirement for such an accusation. Section 952 of the Penal Code allows an indictment to be stated ‘in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused. ’ Lorenson was indicted in the terms of the ‘enactment describing the offense/ and the grand jury has fairly informed him of the acts of which he is accused to the extent which will enable him to defend himself. (People v. Emmons, 13 Cal.App. 487, 492 [110 P. 151].)” (P. 61.) Section 182 provides a specific punishment for a conspiracy to do an act described in the section which is neither encompassed within subdivision 5 [and now also subdivision 4] nor an independent felony. These provisions for punishment may well apply to the conduct proscribed by subdivisions 2, 3 and 5 as substantive crimes in and of themselves, as well as to a conspiracy under subdivision 1 to commit a misdemeanor. If so, the provisions of section 952 should govern as so indicated by Lorenson.

In Davis v. Superior Court, supra, this court in reviewing Musser, Lorenson, Sullivan and Calhoun states: “The constitutionality of the California statute, however, rests upon the fact that three cases have charted boundaries to its otherwise limitless sea of criminality.” (175 Cal.App.2d at p. 14.) In analyzing Lorenson it states: ‘ ‘ The reference to ‘ Crimes Against Public Justice ’ does not necessarily exclude a crime not defined within the four corners of that part I, title VII, of the Penal Code, such as section 4570, involved in this indictment. The court’s reference to such crimes was illustrative, rather than exclusionary; the type of conduct with which title VII principally deals falls within the category of acts ‘to pervert or obstruct justice. ’ ” (Icl., p. 16.) Despite this extension of subdivision 5 beyond the limited scope to which defendant would relate it, the final conclusion of the court— “Hence, as interpreted by the California eases, section 182, subdivision 5, is not limitless but contracted” (id., p. 16) — does suggest that in each ease it should be made specific by reference to the particular objective which is relied upon as falling within the general prohibition of the statute.

If it be assumed that it would be better practice to state the specific object or objects to which the conspirators were accused of having agreed to attain to pervert and obstruct justice and the due administration of the laws, the question remains whether the failure to so allege, and the overruling of the demurrer constituted prejudicial error.

Defendant claims he was forced to speculate which of any of the numerous crimes set forth in Title VII of Part I of the Penal Code he was accused of conspiring to violate. He points to the record which discloses a persistent equivocation on the part of the prosecution as to just what was the object of the conspiracy referred to in Count I. At one point it was asserted that it was a conspiracy which began before the fire and continued thereafter with the object of concealing that the offense of arson had been committed. In the final summation it was asserted that it had nothing to do with the arson referred to in Counts II and III. It was also alluded to as a conspiracy involving the withholding or the giving of false information to police officers, or for the preparation of false written evidence. In their brief the People indiscriminately refer to a conspiracy to conceal the original arson, a conspiracy to collect insurance proceeds, a conspiracy to conceal Wickholm’s subsequent theft of a compressor, and a conspiracy to conceal both the theft and the arson.

In instructing the jury the court mentioned the constitutional restraint on the practice of law by a municipal judge (art. VI, §§ 12 and 18), and the disqualification of a judge in regard to matters involving a former client. (Code Civ. Proc., § 170.4.) It advised the jurors that fixing bail, authorizing release on bail and authorizing search warrants are actions involving judicial discretion. Malfeasance and nonfeasance were defined; and the elements of Count I were more specifically referred to as follows: “Any conspiracy to do any of the following mentioned acts would constitute a conspiracy to pervert and obstruct justice and the due administration of the law: To unlawfully hinder, delay or obstruct any police officer in the discharge or attempt to discharge his official duty to investigate the commission of a public offense: To attempt by any fraudulent means to induce any person to give false testimony or withhold true testimony: To unlawfully induce a person to withhold information from or to give false information to police officers investigating the commission of a public offense: To attempt to manufacture false evidence to be produced for investigating police officers or to be produced at a trial: To prepare any false or ante-dated paper, record, instrument in writing, or other matter or thing with intent to produce it, or allow it to be produced for any fraudulent or deceitful purpose as genuine or true upon any trial, proceediug, or inquiry whatever, authorized by law; To effect malfeasance and nonfeasance by a Judge in connection with the administration of his public duties.”

A reexamination of the indictment and the specific 18 alleged overt acts in which it is alleged defendant participated reflects that these allegations gave defendant notice that he would be called upon to meet the charges which are found in the prosecution’s arguments and which are alluded to in the court’s instructions. Acts 3 to 6, inclusive, allege that defendant and Wickholm discussed the fire after it occurred on November 28, 1963, that Wickholm prepared bids for rebuilding, that defendant submitted them to the insurance company and received its check for $2,000. It having been previously alleged that Wickholm set the fire, it reasonably may be inferred that these allegations, as do similar allegations in respect of the six overt acts alleged in Count III, refer to the conspiracy to commit arson, or that they may relate to a conspiracy to burn property to defraud an insurer. (See Pen. Code, § 548.) The allegations continue, however, and refer to a meeting between the conspirators the following September 1964. They specifically charge that the defendant instructed a woman, with a name similar to that of a witness before the grand jury, not to talk; that defendant instructed Wickholm to obtain a receipt for a stolen compressor; that defendant discussed the stolen compressor once with Officer Pirtle and again with another officer; that defendant refused to issue a search warrant against Wickholm; that he attempted to phone Wickholm; that he had an early morning conversation with the woman referred to above and attempted to convince her not to talk about a stolen compressor, or property which defendant had received from Wickholm, or the burning of defendant’s dwelling by Wickholm for insurance purposes; that defendant drove to Wickholm’s residence early the same morning; that he talked on the telephone with Wickholm who was jailed and arranged for his release on bail; and that in the forepart of that September defendant received personal property from Wickholm.

Defendant was furnished a copy of the transcript of the testimony before the grand jury. Although, as hereinafter noted, it was not made a part of the record on appeal, the references to it in defendant’s brief reveal that the testimony taken there encompassed all of the matters which the prosecution referred to in argument, and those which are embraced in the court’s instructions. Under such circumstances, it cannot be said that defendant was prejudiced because of the error, if any, in failing to more specifically designate the object of the conspiracy in the indictment. (Pen. Code, § 960; and see: People v. Bishop (1963) 220 Cal.App.2d 148, 149-150 [33 Cal.Rptr. 658] ; People v. Chapman (1962) 207 Cal.App.2d 557, 570 [24 Cal.Rptr. 568] ; People v. Lamb (1962) 204 Cal.App.2d 255, 262-263 [22 Cal.Rptr. 284]; People v. Mason (1960) 184 Cal.App.2d 317, 353-356 [7 Cal.Rptr. 627] ; People v. Docherty (1960) 178 Cal.App.2d 33, 38-39 [2 Cal.Rptr. 722]; People v. Gordon (1945) 71 Cal.App.2d 606, 610-612 [163 P.2d 110].) The principle that “The purpose of the overt act is simply to show that the agreement has proceeded beyond the meeting of the minds stage to some direct or physical act, however innocent in itself, tending toward the furtherance of the objective of the conspiracy” (People v. Saugstad (1962) 203 Cal.App.2d 536, 549-550 [21 Cal.Rptr. 740]; and see: Yates v. United States (1957) 354 U.S. 298, 334 [77 S.Ct. 1064, 1 L.Ed.2d 1356]), does not preclude consideration of the alleged overt acts as a portion of the pleading which gives the defendant notice of the issues he must face. “Thus the allegations of all of the paragraphs of an information charging conspiracy must be construed together, ...” (Peoples v. Bishop, supra, 220 Cal.App.2d at p. 150.)

Defendant was not called upon to meet any issues of which he did not have notice. The gravamen of his complaint of uncertainty resolves itself into a complaint that the conspiracy to pervert and obstruct justice and the due administration of the laws should be limited to one specific other substantive offense. It need not be so limited because it may well involve a course of conduct which involves several substantive offenses together with conduct which except for the prohibited objective is perfectly legal. (Cf. People v. Barnard (1923) 63 Cal.App. 562, 571-572 [219 P. 756] with People v. Bennett (1955) 132 Cal.App.2d 569, 578 [282 P.2d 590]; People v. Hess (1951) 104 Cal.App.2d 642, 671 [234 P.2d 65]; and People v. Yant (1938) 26 Cal.App.2d 725, 729-730 [80 P.2d 506].)

B. There was no prejudicial ambiguity in the allegations of Count I.

Defendant further asserts that the allegations of Count I, insofar as they allege a conspiracy to conceal the commission of the offense of arson, do not state a public offense, other and different from the conspiracy to commit the substantive offense of arson itself. Generally the conspiracy comes to an end with the performance, or failure to effect the contemplated act, and the concealment is a mere incident thereof which is not a new conspiracy so as to toll the running of the statute of limitations, or permit the post-offense declarations of one conspirator to be used against another. (Grunewald v. United States (1957) 353 U.S. 391, 401-405 [77 S.Ct. 963, 1 L.Ed.2d 931, 62 A.L.R.2d 1344] ; Lutwak v. United States (1953) 344 U.S. 604, 616-618 [73 S.Ct. 481, 97 L.Ed. 593] ; Krulewitch v. United States (1949) 336 U.S. 440, 443-444 [69 S.Ct. 716, 93 L.Ed. 790]; People v. Crosby (1962) 58 Cal.2d 713, 728 [25 Cal.Rptr. 847, 375 P.2d 839] ; People v. Olson, supra, 232 Cal.App.2d 480, 491.) The foregoing authorities appear to bar consideration of the first count as a conspiracy entered into prior to the fire to pervert and obstruct justice and the due administration of the laws by concealing the fact that arson was committed.

In Krulewitch only the conspiracy to commit the substantive offenses was involved. (336 U.S. at p. 441.) In Lutwak a count alleging conspiracy to conceal the conspiracy to commit and the commission of the substantive offense was contained in the indictment. (344 U.S. at p. 617.) The court found, however, that there was no proof of such a conspiracy as distinguished from the original agreement and that therefore declarations made by one conspirator after the commission of the offense were improperly, although not prejudicially, admitted against another. (Pp. 617-620.) Grünewald recognizes that there may be a conspiracy to effect concealment until the period in which prosecution or imposition of penalties has run. (353 U.S. at pp. 407-411.)

So here the People contend that Count I is more than a mere conspiracy to conceal the arson. It is stated that although defendant was motivated to intercede into the compressor matter in order to keep Wickhohn from talking about the arson, there was a new and separate object in that defendant conspired with Wickholm to pervert and obstruct justice and the due administration of the laws to prevent the latter from being prosecuted for the theft of the compressor. The shift in emphasis demonstrates the shortcomings of permitting the indictment to stand in the statutory language without amplification. Here again, however, any possible error must be viewed to determine its prejudicial effect. Reference to the overt acts charged and the admitted contents of the transcript of proceedings reflects that the defendant was adequately notified that he would have to meet issues arising at or about the time that Wickholm allegedly took a compressor and subsequent thereto.

It is concluded that the error, if any, in overruling the demurrer to Count I was not prejudicial. The question of the effect of the phraseology in which the indictment was couched upon the admission of evidence and the instructions of the court is hereafter considered.

II. The Ruling On Defendant’s Motion To Set Aside The Indictment Cannot Be Reviewed In These Proceedings.

The designation of the record on appeal contained in defendant’s notice of appeal fails to include a request for or designation of the transcript of the proceedings before the grand jury which led to his indictment. Under these circumstances the court cannot consider whether the trial court erred in denying defendant’s motion to set aside the indictment under the provisions of section 995 of the Penal Code. (People v. Scott (1944) 24 Cal.2d 774, 777 [151 P.2d 517]; People v. Jones (1964) 228 Cal.App.2d 74, 90 [39 Cal.Rptr. 302].) Parenthetically it is noted that the record before the grand jury was enhanced by the testimony of the woman who subsequently became Wickholm’s wife. If the evidence at the trial, without her testimony, is sufficient to support the judgment, the probabilities lie with the assumption that the record before the grand jury had even more probative force. Defendant has so stated in his opening brief.

III. The Competency And Sufficiency Of The Evidence.

In order to determine the question of the sufficiency of the evidence it must be. determined what evidence was actually before the jury, and the propriety of its admission. The facts as adduced, the manner in which the jury was instructed to consider them, and the sufficiency of the evidence as so screened by the court are discussed in that order.

A. The facts as established by the evidence.

In 1960 defendant, who was then a practicing lawyer in San Jose, purchased a ranch in southern Santa Clara County, west of Gilroy, off the Heeker Pass Road to Watsonville. The improvements consisted of a main house and several outbuildings including a cabin which he had intended to remodel or replace. The walls and siding were in good shape, but the roof and floor had deteriorated. On the basis of its square footage it was estimated to have had replacement value of $4,000 at the time it was burned. The ranch was encumbered by a first mortgage to a bank with a balance in the approximate sum of $13,000 or $14,000 and with a second mortgage of $19,000 or $20,000 to a title company.

Codefendant Wickholm in 1962 secured defendant’s services to defend him in an action in which one Stella Caine was seeking to cancel some allegedly forged notes and a deed of trust covering her property. According to Hardeman he had rendered services of a value of $500 in this case and had only received $100 payment on account, but he had not billed Wickholm for the balance. Defendant also undertook to represent Wickholm in a companion suit in which he sought to recover from a purchaser of the same notes who had stopped payment on the check which he had given for the purchase price. This suit was taken on a contingent basis and was turned over to defendant’s successor in practice in 1964 when he went on the bench. There was nothing due although defendant had rendered services he estimates to be of a value of $200.

In January 1963 defendant filed a divorce action for Wickholm’s wife and in August 1963 an interlocutory decree was secured. Wickholm had agreed to pay the fee, set at $300, but payment was offset by a pony which Wickholm gave defendant for his daughter. About the same time as the divorce was obtained, defendant intervened on Wickholm’s behalf by telephoning the district attorney in reference to an incident in which Wickholm settled an accusation of stealing grain, by doing some painting for the feed merchant who so accused him. No charge was made for this service.

Meanwhile, Wickholm had purported to go through a marriage ceremony with one Nadine Patrick who had been the corroborating witness at the recent divorce. On November 21, 1963, defendant filed an annulment suit in another county. Three hundred twenty-five dollars was to be due when the judgment was secured, but it was to be offset against Wickholm’s services in painting the ranch buildings.

Defendant conceded that in November 1963 there were fees owed to him by Wickholm, and that Wickholm was a hard man from whom to collect. In addition to the goods and service referred to above it was shown that the painting continued during the winter of 1963-1964; that in the summer of 1964 Wickholm delivered some fence posts and dug some post holes for defendant; and that in the fall he gave defendant some deer meat.

Wickholm did painting at defendant’s ranch during the latter part of October and in November. Witness Mary O'Brien, a friend of Nadine Patrick with whom Wickholm had then established residence, testified that during this period on an occasion she was visiting Nadine, Sherman drove in on the painting truck with Wickholm some time before noon. [Wickholm said they could not do the job because he had missed someone; and they both said that on their way back from Santa Cruz they helped pull a man out of a ditch.],, Wickholm went to the telephone to make a call. [Nadine asked Wickholm, “Why bug him?” Wickholm said, “I want to get this . . . job over with, I want it done now, I want it straightened up.”] Wickholm began to make the call. [Sherman remarked, “Why bother to paint this barn when its going to be burned down ?' ’ Wickholm told Sherman to shut up and told Nadine in an angry and vulgar manner to get herself and the witness out of the kitchen.] Before leaving the witness heard Wickholm address someone over the phone as “Dolly” and then heard him say, “Hello Maury.” She had heard him make similar telephone calls before.

According to witness Dorothy Syzemore: Sherman stated in early November 1963 that he and Wickholm were going to build a cabin in the Morgan Hill or Gilroy area for a lawyer in order to pay the fee for Nadine’s annulment. [Objection to this testimony was overruled.]

During the period now under review defendant Sherman was living with one Delores Blderton. She knew Wickholm, and Sherman and Wickholm had borrowed her car on occasion. On November 28, 1963, Thanksgiving day, after having dinner with friends and the latter’s relatives, Sherman and Delores and others at about 6 o’clock in the evening went to the Red Barn bar which is situated south of San Jose, and about 29 miles from the Hardeman ranch. (Although it is impossible to reconcile the testimony of all of the witnesses as to just who was present at the bar on that evening, and the times involved in the respective arrivals and departures, the jury was entitled to and apparently did accept the testimony of Delores.) [According to Delores, Sherman told her that he and “Ken” were going to burn down a cabin. When “Ken” (Wiekholm) came in Sherman requested the keys to Delores' ear.] She gave him the keys and the two men left about an hour and three quarters after Delores had arrived.

At 8 :28 p.m. the Gilroy Fire Department received a report of a fire at the Hardeman ranch. The fire fighting equipment arrived at the scene at 9 :03 p.m. but was unable to quell the blaze before the roof and most of the walls were destroyed. Hardeman first learned of the fire from a neighbor. He drove down to the scene and arrived about 11 p.m. The next day a deputy county fire marshal contacted Hardeman who told him that he had had prior trouble with the wiring which passed by a pole by the cabin, and that the investigator should not unnecessarily stir up trouble with the neighbors about the children running around because Hardeman was trying to settle some of the disputes the neighbors then had among themselves. The cause of the fire was listed as “undetermined. ’ ’

Some two hours after he had left the bar, or shortly before 11 p.m., Wiekholm returned to the Red Barn. At his request, Delores and others left, joined Sherman at the car, repaired to another bar and finally went home for the night.

[The next morning at Delores’ home she observed Wiekholm turn to Sherman after making a phone call and heard Wiclcholm state: “Maury says for once we’ve done something right. It’s the first right thing we’ve done”; and that “Maury” was very surprised when he got the call about his cabin.] [Later that day Sherman stated: That he and Wiekholm had burned the cabin to reduce or square the bill which Wiekholm owed Hardeman; and that they had started the fire in an old bureau drawer with paint thinner, rags and paper.]

Delores told Nadine about the fire three or four days later, [and the next day Wiekholm telephoned her and stated that he was angry because a third party had told him that Delores had made these statements to Nadine, that Sherman should not have told her, and that she must be quiet. ]

About a week after the fire Sherman, Wiekholm, Delores and Nadine drove out to the scene of the burned cabin in Delores' car. [While out of the car and looking at the ruins, and with Wiekholm in the vicinity, Sherman stated: “That’s where we started the fire. ”]

Meanwhile, on December 2d Hardeman reported the loss to his insurance agent. Thereafter Hardeman received a telephone call from an insurance adjustor and was told to get some bids for the cost of rebuilding the cabin. On January 2, 1964, defendant turned over three bids and some plans to the adjustor and received a check for $2,000, the maximum amount payable on accessory buildings. Neither Hardeman nor the agent or the adjustor gave any notice to the first or second lien holder. The check which was payable to defendant and his wife was subsequently deposited in a joint account which Hardeman maintained with his sister. Shortly thereafter a new bank book, which merely reflected the balance and not the deposit, was issued to Hardeman who allegedly had lost the original.

The bids which Hardeman turned over to the adjustor were from Vernon Roman, Mayfair Development Company, and KGW Construction Company. The last named was from Wickholm himself; [the first had been secured and prepared by Wickholm by obtaining the signature of Roman to a blank piece of paper on the representation he was going to use it for a letter of recommendation] ; [and the third had been secured from one Gonzales, who was using Wickholm as the “responsible managing employee” for Mayfair’s contracting license, and who had his foreman sign the bid. ]

On December 29, 1963, Hardeman obtained the annulment for Wickholm. About that time Sherman told witness Syzemore that the cabin had been built and “Nadine got what she wanted.” [Objection to this testimony was overruled.]

[In January 1964 Delores told Sherman in the presence of Wickholm that if he did not repay her some money he had borrowed she would tell the authorities about the fire. Sherman told her that if she did she would 1 ‘ swing right alongside of he and Ken.” Sherman was angry and was calmed down by Wickholm.]

On February 10, 1964, Hardeman took office as a judge of the municipal court.

On June 15, 1964, Wickholm borrowed a pickup truck from Thurman Warmer, the foreman of the O’Connell ranch. He took the truck from the Red Barn and was gone about 45 minutes. [On his return he instructed Warmer and his brother that if anyone asked whether the pickup had been moved to say no.]

On June 16,1964, the theft of a mobile compressor belonging to the Bridges Construction Company from a job site about a half a mile from the Bed Barn-was reported to the sheriff’s office. On September 4, 1964, Warmer mentioned some rumors he had heard about Wickholm using his truck to a member of the sheriff’s office with whom he was hunting. A detective from the sheriff’s office interviewed Warmer. The defendant brought out that Warmer and one Moss divulged that Wickholm was the person responsible for the theft of the compressor, and that he had probably taken it to the vicinity of Bedding in Northern California. At the time Wickholm and a Mrs. Perris were living together on the 0 ’Connell ranch.

On September 9th, Admission Day, the defendant left his chambers and met Wickholm and Mrs. Perris for lunch. According to the defendant this meeting was at the request of Wickholm who told him that he had taken a compressor and that it was merely a matter of time until a pending investigation would catch up with him. The defendant told Wickholm to go and get the compressor and leave it behind his old office, to make his peace with the sheriff, and get himself an attorney. In response to Wickholm’s suggestion that he had or could get a receipt, the defendant told him that he could not rely on it as a defense. Hardeman denied that Wickholm told him he had or was going to get a forged receipt, or that he told Wickholm to get a forged receipt.

The next day, September 10th, defendant called the sheriff’s office and asked a lieutenant in the sheriff’s office if they were investigating the theft of a compressor. He revealed that Wickholm, a former client, knew that the sheriff’s office was looking for him, that Wickholm’s wife had contacted him, and that the suspect was in Oregon trying to recover the compressor and if he had time could recover it over the weekend. The lieutenant advised defendant he would check and call him back. He left a note for the investigating detective to call defendant. Later the detective to whom the investigation was assigned phoned defendant and was given the same information.

Meanwhile, Wickholm had gone to Bedding and met one Pires, the purchaser of the compressor. [He advised him that it was stolen and that if it were not returned he would be in trouble.] Pires would not part with the compressor unless compensated. Wickholm telephoned Hardeman, and had Hardeman talk to Pires on two occasions during the night. Pires instigated a cheek through the local sheriff’s office which was unproductive, but the compressor was ultimately released in exchange for $750 in cash and the check of one Hoover for $350 on which payment was subsequently stopped.

Some evening after September 8, 1964, on which day he was hospitalized, one McGuire an old acquaintance of Wickholm, at the latter’s request wrote the signature “Albert Maddox” on a blank piece of paper, and his own signature on one or two other pieces of paper. Wickholm said he wanted the signatures to use for testimony of the quality of his work. [Defendant’s objection to the admission of this statement was overruled. ] The first paper as filled out in Wickholm’s handwriting acknowledged the receipt from Wickholm of $450 for a compressor and a paint pot on June 13,1964.

On September 11th the detective from the sheriff’s office returned to the O’Connell ranch and talked to Warmer and Mrs. Perris whom the Warmers had requested to talk to the authorities. He received three phone calls from the latter that night, and at 2:30 a.m. on the 12th arrested Wickholm as he drove up to the parking lot where Hardeman had told him to return the compressor. [Wickholm stated that he had purchased the compressor from a man named Albert Maddox, but that he had been unable to locate him.] Wickholm was booked at the jail at 4 a.m. and phoned defendant at 4:56 a.m. At 5:30 a.m. a release signed by defendant was issued, and at 7 a.m. Wickholm was released from jail when a bondsman, whom defendant had called, posted bail.

Mrs. Perris telephoned the detective on September 15th, September 16th, and once again before the 19th, on which day she met with the detective and a sergeant from the sheriff’s office. She gave written statements on the 11th and 19th.

Defendant testified that he saw Wickholm in the municipal court building on September 24,1964, the day on which he was to be arraigned for theft of the compressor, at about 1 p.m., that Wickholm told him that Mrs. Perris was telling anyone who would listen to her about alleged offenses of Wickholm, and that Wickholm had given Hardeman property which the donor knew was stolen. Wickholm denied the property was stolen and Hardeman said that she had better shut up or get herself a lawyer.

About 9 p.m. on September 24th information was received that Wickholm had a forged receipt in his possession. An affidavit was prepared for the issuance of a search warrant, and shortly after midnight the affidavit was presented to a superior court judge and a bench warrant was issued. Duplicate forms of affidavit and search warrant were prepared. Armed with these papers the sheriff's detective, the district attorney’s investigator, and two uniformed deputies went in three ears to the house occupied by Wickholm, Ruth Perris, and the latter’s three children, on the O’Connell ranch. The defendant on cross-examination introduced the affidavit for the search warrant which reflected that it was predicated upon information received from a reliable confidential informant who would be in danger if the name were revealed. He brought out that the officers first searched the premises rather than Wickholm's person to divert suspicion from Mrs. Perris who had furnished the information that Wickholm was carrying a receipt he had secured from McGuire. The forged receipt was found in Wickholm’s wallet and he was placed under arrest at about 2:30 a.m. [Wickholm when first interrogated that morning had admitted that he had two receipts, denied he had either with him, and stated that one or both were in the office of the attorney who had taken over the defendant’s former law office.] Wickholm was turned over to the uniformed deputies at about 3 or 3 :15 a.m. under instructions to head back toward the jail but not to take him there until they heard from the investigator and the detective. He was not booked until 5 :25 a.m.

The sheriff’s detective proceeded to Hardeman’s home and left the investigator, Mrs. Perris and the children at the ranch. After being ushered into the house by Mrs. Hardeman, he presented the affidavit and the proposed search warrant, which did not have a provision for service in the nighttime, to defendant. Defendant stated that he had helped this man enough and that he wouldn’t sign it. According to the detective, Hardeman remarked on the fact that Wickholm had been arrested, although he had told the detective that Wickholm would surrender himself, and Hardeman then instructed him to go to another judge. This confrontation was admittedly designed to determine whether Hardeman would attempt to communicate with Wickholm. At the trial defendant testified that in addition to his expressed reason for declining to sign the warrant, which was predicated upon his possible disqualification, he realized at the time that he had become very much a part of the particular matter in which he was asked to issue the search warrant because of his prior representations to the sheriff’s office and advice to Wickholm, and that he was concerned because the detective who presented the warrant had reportedly expressed some concern and animosity about the defendant’s interference in the matter, and because the officer could have presented the warrant to any one of 24 other judges. When first interrogated at the district attorney’s office on October 5, 1964, he stated that “It just didn’t ring clear to me as to what they wanted a search warrant for a receipt”; and “I knew no reason for a search warrant because I understood the compressor had been returned” as the reasons for his refusal to issue the search warrant. He then stated that he had told the detective, “This is getting sticky ... I would prefer that you—you get another judge to—sign the search warrant ...” Before the grand jury he stated, “I guess now that I reflect about it. I became puzzled as to why he [the detective] would object [to defendant’s interference in the investigation] in one instance and now he has a search warrant regarding a receipt, and I guess I became aware then that I was getting a little involved. ’ ’

According to defendant, he then started to phone the presiding judge of the municipal court, thought better of it because of the early morning hour, and then unsuccessfully attempted to get Wickholm’s telephone number by a call he was unable to complete to the attorney who had succeeded to his practice and by a call to the information operator. In his original voluntary statement to the district attorney he stated that he went to bed, that he did not attempt any phone calls and only got up to answer Mrs. Perris’ call. Before the grand jury and at the trial he related the foregoing efforts to communicate with Wickholm. Defendant first said before the grand jury that he wanted to talk to Wickholm to find out about the receipt, that he was puzzled why Wickholm would be concerned with a receipt after he had brought the compressor back. At the trial defendant stated that he did not intend to mention anything to Wickholm about a forged receipt over the telephone, but merely that it was important that he see him right away; that he wanted to get Wickholm to give him the receipt and take Wickholm and the receipt to the sheriff’s office.

Meanwhile, the district attorney’s investigator with Mrs. Perris' consent had attached an eavesdropping and recording device to the telephone. At 3:05 a.m. he advised by radio that this had been accomplished. Subsequently at 3:58 a.m. a telephone call was made to defendant’s house and the conversation between defendant and Mrs. Perris was recorded. On voir dire, but not before the jury, it was brought out that the investigator told Mrs. Ferris what the conversation should evolve around basically—the subjects which she had told the authorities Wickholm and Hardeman were involved in—and that he passed her notes suggesting questions during the conversation.

Mrs. Ferris identified herself and defendant immediately asked: “The Sheriff’s been out there?” After receiving an affirmative reply and advice that the house had been searched and that Wickholm had been arrested and taken down town, the defendant volunteered: “He [the detective] came here about 4:30 what, with a—wanting to get a search warrant, and I couldn’t find your phone number.” Discussion as to the manner in which the phone was listed terminated in defendant’s observation: “That’s where we erred, because we tried in-—and was immediately followed by the inquiry, “did they find the receipt ? ’' Mrs. Ferris replied in the affirmative and in response to defendant’s inquiry as to who had told the authorities about the receipt admitted that she had. Defendant then indicated that he had advised her that she didn’t know anything about it, and that she should not say anything. This same advice was referred to or given at several other points in the conversation. Defendant while deprecating the importance of the receipt disclosed that he had knowledge of the existence of the receipt prior to seeing the affidavit for the search warrant, and that he knew it was supposed to be given to the attorney for Wickholm.* I****** 9He, however, denied an accusation that he had told Wickholm to get a false receipt. Mrs. Perris persisted in implying that matters other than the compressor were involved, and defendant after first advising her that she had a right not to talk, then suggested she tell his successor attorney, and when confronted with the statement that Wickholm had taken things and given them to defendant finally requested that she drive over to his house. Mrs. Ferris declined because she did not want to arouse her three children, and in response to defendant’s inquiry advised him that the call was made on Wiekholm’s instructions. There was an interruption while defendant went from his upstairs to his downstairs phone and then interjected a conjecture as to whether the line was tapped and the comment that she was “a very dangerous person now.” After discussing any possible threat to Mrs. Ferris’ custody of her children and her feeling that she did not need a lawyer because she had not done anything wrong, defendant observed that he had told Wiekholm that they would not have been asking Mrs. Ferris so many questions if they had a case against him. Mention of Wickholm’s propensity for getting into trouble led to the following colloquy: “Ruth Febbis : I’m afraid that you’re going to get involved; what will it do to you? Judge Habdeman: Well, but sure, sure, but the thing about is by your doing this you just exposing—you’re getting Ken down in deeper, and you’re pulling everybody else involved along with it. Is this necessary? Ruth Febbis: Well, that’s why I’m talking to you. I don’t know. Judge Habdeman: Well, this is what I’m trying to tell you. There’s no point in getting everybody involved in this thing. Ruth Febbis: Well, I don't mean to get you involved, Judge. Judge Habdeman: But the intent—unintentional can be just as fatal as the intentional.” A mention of the horses, a saw, paint and ladders and the implication that they were stolen and that defendant was aware of their source drew a statement that he was ignorant of where Wickholm had acquired the articles.

The fire was mentioned as follows: “Ruth Perris : . . . Ken even told me one time that—that he burned a house down. Judge Hardeman : Now, now, now—now there you go. Can you shut your mouth, woman ? Can you keep still ? Ruth Perris : Well, I’m sorry— Judge Hardeman : Can you? Ruth Perris : •—but these things are—this is something big, Judge Hardeman. This—this stolen compressor is one thing, but—but burning down a house to collect the insurance is another. Judge Hardeman : Now— Ruth Perris : I have heard of this sort of thing. Judge Hardeman : Are you happy now that you got that out? You just couldn’t—you couldn’t — you just couldn’t resist telling that, could you? Ruth Perris: Well, I’ve been sick ever since he told me this. This is something big. Now, this, to me, sounds like something worse than just a stolen compressor, and I’m afraid that they’re—maybe the police know something about something like this. They’re making too big a fuss for it to be just a—a stolen compressor. There’s something else they’re after, and I don’t know what it is, and I want to know—” At this point defendant asked Mrs. Perris where she was and how to get there. He asked her if she had mentioned what she had just told him over the phone to anyone, and on receiving a negative reply observed, “I’m sure you’ve got your phone tapped, but I’ll be out there and talk with you. ’ ’ He advised her to call the bail bondsman and then to get dressed and to pack and adopted her suggestion that she get out of the mess before they could ask her any more questions.

In his original statement to the district attorney on October 5th, defendant not only offered an explanation as to the horse, the saw, and the painting, but also in relation to a dog and a fence which he erroneously stated Mrs. Perris had accused him in the telephone conversation of receiving with knowledge of a tainted source. He stated the first thing mentioned by Mrs. Perris was the fire, and that she not only indicated that Wickholm had something to do with it, but that defendant knew he did; that he told her that if anyone asked her about these charges she would have to tell them. On that occasion he denied that he had told her to keep her mouth shut and not to talk about it, and that he had accused her of getting into the whole mess by talking about it.

Before the grand jury he stated that Mrs. Ferris said she was disturbed about some awful things Wiekholm had stated defendant and he had done, including the fence and dog, along with the horse and saw, and that he may have advised her to get a lawyer or answer that she didn’t know.

Following the phone call, he took his wife’s five-passenger car and endeavored to find Mrs. Ferris. He apparently found the ranch and was observed there, but Mrs. Ferris had left with the district attorney’s investigator. At the district attorney’s office on the morning of October 5th he gave negative replies to questions directed to ascertain whether he made such a trip. He explained these answers by reference to the fact that the interrogator had given the wrong date in the question, that the questions referred to the ranch by a name with which he was unfamiliar, and furthermore because he did not want to give any statement without first consulting an attorney when he found the district attorney, with whom he wanted to talk, flanked by several assistants and other functionaries, and insisting on a record which defendant at that time did not want to make. In Ms statement later that day he acknowledged he had made the trip, but stated it was at her instigation rather than his own. Before the grand jury he acknowledged that he initiated the idea of going to see her; and that he found a house on the ranch which he entered and found empty. At the trial he stated that the purpose of the trip was to get to the bottom of the accusations she had made.

At 6 ¡05 a.m., Wiekholm telephoned the bail bondsman. He in turn made arrangements whereby defendant signed a release at 10:30 a.m. and Wiekholm was released about an hour later.

According to defendant’s statements he attempted to get an appointment with the district attorney that same day, but was unable to do so and left that afternoon for the annual Conference of California Judges.

He did call the insurance adjustor and advised Mm that he had received information that Wiekholm had intentionally burned down the cabin and that he wanted to return the insurance money. A luncheon date was made for October 6th and subsequently advanced to October 2d on Hardeman’s return from the convention. The insurance company did not want the refund, but was interested in its subrogated claim against those responsible for the fire.

Defendant arranged to see the district attorney on the morning of October 5th, but, as noted above, continued the matter until later in the day so he could confer with counsel He gave a statement in the presence of his attorney which was reported by a reporter selected by the latter. This statement was read to the jury and is consistent with defendant’s testimony except as noted. Thereafter, defendant voluntarily appeared before the grand jury, and his testimony there was similarly read to the jury. The principal discrepancies between the facts contained therein and defendant’s testimony have been alluded to above.

Meanwhile on October 1st and 14th, 1964, further investigation was conducted at the scene of the fire, and it revealed that the fire was of incendiary origin.

[In the latter part of October, after the indictment had been returned, Wickholm met witness Elderton in a restaurant and told her he had been looking for her so he could tell her what and what not to say.]

Such other facts as bear upon the issues presented are noted in connection therewith.

B. No prejudicial error was committed in the rulings on the evidence.

1. There was no error in admitting the tape recorded telephone conversation between defendant and Ruth Perris.

Defendant’s original attack on the admission of evidence of his extrajudicial declarations is predicated on the theory that the interrogation, though conducted through the voice of a third person was substantially a process of interrogation that was designed, and lent itself to eliciting incriminating statements from a particular suspect upon whom the investigation of complicity in the crimes of arson, grand theft, and obstruction of justice had begun to focus. He contends that recently developed exclusionary principles preclude admission of the accused’s declarations under such circumstances. (See Massiah v. United States (1964) 377 U.S. 201 [84 S.Ct. 1199, 12 L.Ed.2d 246]; Escobedo v. Illinois (1963) 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977]; People v. Dorado (1965) 62 Cal.2d 338, 345-357 [42 Cal.Rptr. 169, 398 P.2d 361]; and more recently Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].) Reliance was placed upon the opinion of the District Court of Appeal in Ballard v. Superior Court, as found in (Cal.App.) 44 Cal.Rptr. 291, 295-296. After hearing was granted in that ease it was determined, “Since petitioner was clearly not in custody at the time he uttered the incriminating statements to the victim [who was cooperating with the authorities, as the witness was here], he cannot successfully challenge the admissibility of those statements on the basis of Escobedo and Dorado.” (Ballard v. Superior Court (1966) 64 Cal.2d 159, 170 [49 Cal.Rptr. 302, 440 P.2d 838]; and see generally pp. 167-170 and People v. Bowman (1966) 240 Cal.App.2d 358, 369-374 [49 Cal.Rptr. 772].) The People, in addition to directing attention to the fact that the defendant was not in custody at the time of the utterances, contest defendant’s assumption that the proceedings had reached the accusatory stage. They assert that the telephone call was a legitimate method of investigation used to give the defendant a chance to reject or rebut the suspicions which had arisen in regard to his participation in the offenses under investigation. The lack of custody or restraint makes it unnecessary to resolve this point. (Cf. People v. Jones (1965) 237 Cal.App.2d 499, 503-504 [47 Cal.Rptr. 40].)

Defendant also urges that the evidence of this conversation offends the principle that “if a defendant makes no response to an accusatory statement and by remaining silent is exercising his constitutional privilege against self-incrimination, it is error to admit the evidence. [Citation.] Under such circumstances the defendant’s response cannot give rise to an inference of acquiescence in the truth of the statement or of guilty consciousness, and admission of the evidence constitutes error.” (People v. Ridley (1965) 63 Cal.2d 671, 676 [47 Cal.Rptr. 796, 408 P.2d 124] ; People v. Cockrell (1965) 63 Cal.2d 659, 669-670 [47 Cal.Rptr. 788, 408 P.2d 116].) It may be assumed that the interrogator was an agent of the authorities (see People v. Polk (1965) 63 Cal.2d 443, 449-450 [47 Cal.Rptr. 1, 406 P.2d 641] ; and In re Lopez (1965) 62 Cal.2d 368, 370-371 [42 Cal.Rptr. 188, 398 P.2d 380]), but the situation differs from those in the cases upon which defendant relies, because defendant was not expressly or inferentially claiming any constitutional right against self-incrimination. Insofar as he gave an evasive reply to or failed to answer any accusation inherent in Ferris’ remarks it was a product of his own free will. In fact the conversation reflects that if he had been able to ascertain the correct telephone number he would have initiated the telephone call, if not the express content thereof, himself. This is a far cry from the kinship to testimonial compulsion found in silence to accusations made in the police station after arrest.

Finally, defendant asserts that his declarations reciting or affirming his past conduct, which must be distinguished from his verbal acts (Lutwak v. United States, supra, 344 U.S. 604, 617-618), were not admissible because there was no proof of the corpus delicti. This question is hereinafter discussed in connection with the admissibility against defendant of the declarations of his coconspirators, and in connection with the sufficiency of the evidence.

2. There was no prejudicial error in admitting into evidence the declarations of defendant’s alleged eoconspirators or in the instructions of the court concerning their application to defendant.

Defendant complains that the jurors were temporarily permitted to consider as against him evidence of certai