People v. Sharpe

PEEK, J. Defendant R. H. Sharpe appeals from a judgment convicting him of the crimes of perjury, conspiracy to commit perjury and subornation of perjury. Defendant Charles Barrett appeals from a judgment convicting him of the crime of subornation of perjury and conspiracy to commit perjury, and they both appeal from the order denying their motion for a new trial. Said defendants were charged with said crimes in an indictment returned by the grand jury of Tehama County February 3, 1949. The indictment was based upon testimony given by defendant Sharpe and one William Gould before the grand jury of said county on or about February 6, 1946, which testimony tended to show that W. J. Harrington, Probation Officer of Tehama County, solicited and accepted bribes from appellant Sharpe. Specifically, count one of the indictment charged Sharpe, Gould and Barrett with conspiracy to commit perjury; count two charged Sharpe and Barrett with subornation of perjury in that they procured Gould to give false testimony, and count three charged Sharpe and Gould with perjury. Subsequently the indictment was dismissed as to Gould, who became a witness for the People, but Sharpe and Barrett were jointly tried before a jury which returned verdicts of guilty as to all counts. Judgment was entered sentencing them for the terms prescribed by law, the terms under each count to run consecutively.

It is now urged that the judgment should be reversed for two reasons, (1) the alleged prejudicial misconduct of the special prosecutor, and (2) the alleged error of the trial court in sentencing them to consecutive rather than concurrent [945]terms for the crimes of conspiracy to commit perjury and subornation of perjury.

In support of the first contention it is argued that although the judgment is supported by substantial evidence nevertheless defendants were denied a fair and impartial trial because of the misconduct of the special prosecutor, first, in his voir dire examination of a prospective juror, second, in his cross-examination of defendant Sharpe, and third, in his closing argument to the jury.

Even if it be conceded that the attacked acts and statements by the special prosecutor constituted misconduct (see People v. Brancato, 83 Cal.App.2d 734 [189 P.2d 504]; People v. Horowitz, 70 Cal.App.2d 675 [161 P.2d 833], and People v. Macias, 77 Cal.App.2d 71 [174 P.2d 895]), it cannot be held to have been prejudicial in view of the abundant evidence of appellants’ guilt. (People v. Seely, 75 Cal.App.2d 525 [171 P.2d 529].) The instant case does not come within the rationale of People v. Hooper, 92 Cal.App.2d 524 [207 P.2d 117] as defendants contend. While we cannot commend the acts and conduct of said prosecutor as shown by the record, nevertheless such evidence does not reveal the aggravated misconduct presented in the Cooper case.