*1 Feb. Bank. No. 5421. 1954.] [Crim. ASHLEY, H. THE PEOPLE, Respondent, GEORGE Appellant. *5 Wolfe, Jr., per., Wallace E.
George Ashley, pro. H. Benjamin D. Supreme Court, and appointment under Appellant. Brown, General, and William E. Attorney Brown,
Edmund G. Respondent. Attorney Deputy General, James, convicted four counts Defendant was TRAYNOR, J. ‘‘appeals He 484 of the Penal Code. section grand theft under count,” each judgments as to from the verdicts for a new trial. denying his motion from the order charged feloniously The first two counts that defendant $13,590 took from Mrs. Maude Neal 19, 1948, on June $4,470 from August on remaining her 1948. The' two charged feloniously $3,000 counts that he took from Mrs. Mattie Russ on 19, 1948, $4,200 November from her December 1948. manager”
Defendant was the Estate, “business “Life’s *6 Ltd.,” corporation a purpose of “intro- chartered ducing people.” Although run, defendant and full did authority capital to run the affairs of corporation, its stock Wingrave, owned Mrs. Edith defendant’s sister- in-law, Butts, and Mr. and Mrs. Leo defendant’s son-in-law daughter. Wingrave and Mrs. and the Buttses also corporation. officers and directors of the part years the latter of 1948 Russ, Mrs. then about visited the offices of age, Life’s Estate 1537 North at Hollywood. La Brea in Avenue She was de- introduced to fendant, who persuaded join her to the “Life’s Estate Philo- sophical Society.” 18, 1948, response On November in to a telegraphic invitation, she returned and to La Brea offices position salary was offered a as matron a and hostess at apartment $100 a month with property. a rent-free on the accepted driving She the offer. As defendant was Mrs. Long Beach, to home in Russ her he went lot on Sunset buildings. on which Boulevard stood two sheet metal De- fendant told her that “he owned property they also property they on, the La Brea 1537.” As de- owned at drove if any ready fendant asked Mrs. Russ she had cash. When she $3,000 explained told that she had building him he that he was on property money pro- theater the Sunset and needed to ceed with the construction. He her offered interest at per security mortgage rate 6of cent and in the form of a first property. agreed trust deed on the La Brea Russ to Mrs. go make loan to with to fol- defendant her bank the lowing morning. they bank, When arrived defendant at go to refused in with Mrs. Russ. She entered alone currency De- $3,000 deposit from a safe box. secured then in his in West- fendant took her automobile a bank chester, Angeles. at this bank suburb Los On arrival money over on his she turned the to defendant reliance representations get mortgage on the that she would a first money used in the property La Brea and that the would be lot, of a on Boulevard which construction theater the Sunset gave receipt her for the she believed he Defendant owned. was to receive a first trust deed money, which stated that she money deposited property. to the the La Brea Branch of the Estate at the Westchester account Life’s corporation’s show Security-First National Bank. The books subject to an overdraft day that on that the cash account was $4,151.93. defendant took Mrs. completed, After this transaction was Russ of Life’s Estates and later to dinner. At offices money complete her he needed more dinner he told building loan. the theater and asked her to make an additional note, secured a trust deed and She said that she had a acquired from mortgage, $4,200 a chattel worth that she had previously she had lived. sale the home which She agreed This loan these to defendant. transfer documents previous $3,000 consolidated, and the were to be one agreed mortgage her full give he a first amount against property. November the La Brea On again bank, once to her which defendant drove Mrs. Russ agent held the documents and acted as her for the collection Again she enter installments. defendant insisted that securing documents, Russ bank alone. After Mrs. suggested to the bank and have the bank’s return *7 employees prepare transfer, the but defendant insisted that necessary papers prepared the be in his office. The could day. stipulated transfer was It the made that note by mortgage by secured the trust deed and chattel was sold deposited proceeds defendant and the the sale to the ac- They operating count of were used for Life’s Estate. the expenses corporation. apart- 25, 1948,
On November Mrs. Russ into an moved property ment at the La Brea and undertook the duties many requests testified that her matron and hostess. She promised mortgage unavailing she first were and that receipt $3,000, returned to defendant her when he mortgage her receive the if she did so. told that she would quarrels frequent over the failure After to deliver the assigned her, mortgage over the tasks Mrs. Russ left the on March 1949. employ of Life’s At this time she Estate by corporation a note of the secured a second trust received Canyon by unimproved property in Nichols owned deed on although corporation. that, Mrs. Russ testified this security her, took was worthless to she it because defendant nothing.” had told her to “take that proved It was that the property by Sunset was owned corporation and that no theater was ever built thereon. The property by La Brea was owned Dr. Louis who Phillips, had leased property Wingrave to Mrs. period for a of five years. He anyone place authorized to an encumbrance property. this
Mrs. Russ testified that prior she did not receive a note to the one accompanying the second deed of trust on the Canyon Nichols property. letter, signed When shown a her, acknowledging receipt of the note and deed of second agreeing trust and to cancel and prior note, return a re- she fused to signature admit that hers, because of prior reference to stipulated signa- note. It was that the genuine. ture was
Thereafter, Mrs. made a number Russ of smaller loans to defendant. She testified loans were response made in appeals necessary were public utility maintain service and the like. All of these loans repaid. payment of $3,000 loans $4,200 Mrs. Russ received postdated four checks drawn Life’s Estate. After it had become clear that these cheeks would not paid, be defendant drove Mrs. high point Russ to a Canyon Nichols and asked for an extension time. Mrs. frightened by Russ was their proximity edge steep of a embankment. Earl Farns- worth, employee an of Life’s Estate, met them on the road as defendant had instructed him to do. He testified that he de- envelope an to defendant, opened livered who gave it and promissory Mrs. Russ the contents, payable note six months from finally date. agreed She to an extension but said that she wanted the time shortened. After pleading that he money couldn’t raise any length shorter of time, de- finally agreed fendant change the term of the note from to four six months. He made the change, gave the note to Russ Mrs. and told Farnsworth to return pick up his remains. Mrs. Russ testified that she consented to the ex- tension frightened by because she was driving defendant’s so' edge near of a slope sheer his threats to take own might his life so that she paid from proceeds *8 policies. his life insurance support charging two counts defendant with grand theft from Mrs. Maude Neal the introduced testimony of Mrs. Neal preliminary at the hearing, since she had returned to her North Carolina home and was not at available the time the trial. through a in Life’s Estate interested Neal became Mrs. to sell her Butts called and Leo advertisement newspaper office, La Brea where to the later went membership. She some After to defendant. her introduced Wingrave
Mrs. any her if she owned asked he conversation preliminary $17,500 war worth she owned replied that property. She lock-box in kept á bonds were that He learned bonds. intro- Defendant then North Carolina. home Neal's Mrs. psychologist associated Meyer, a Ulysses Dr. Neal to duced Mrs. signed Neal talk, Mrs. further After some Estate. with Life’s a member. and became note $40 1948, defendant and Mrs. March and June Between regarding money. of conversations her number had a Neal matron position as and hostess with an was offered She money. would let him have all her rent-free if she apartment money up option her take an he wanted He that stated $165,000, El Patio Theater for buy the which he had to $500,000. Defendant that he said would was worth he said of Life’s Estate and a trust deed on the Neal a note give Mrs. building. was unable to decide whether to make She theater have her bonds mailed to her. De- offered to loan, but prevailed too that this method was slow and insisted fendant daughter to send the bonds telephone her upon her to receiving bonds, Neal went Mrs. After airmail. talked to defendant. When she of Life’s Estate and
office say- subject security, rage, he flew into a reintroduced though him. she did trust She ing she talked conversation, Meyer, him the and then told called Dr. night, At 10 o’clock that Leo Butts her bonds. left with Brea, him at La for her she went with to the offices called Meyer He said that Dr. had told met defendant. where she money, have her afraid to let them him that she was given impression that sorry if he had her the he would have again He told her that she not honest. corporation was worth security for her loan because good $125,000 equipment worth and had a half-million dollars further conversation she building After some alone. in the make a loan. agreed to for Mrs. 1948, defendant day, called next June On the Security- Inglewood Branch of the her and drove
Neal were not redeemable of the bonds Bank. Some National First only $13,590 at this time. Mrs. Neal obtained bank, so at a amount, it endorsed check a cashier’s purchased She *9 gave and it who defendant, deposited to and endorsed it it to day. the account Life’s on the same Mr. Estate Nelson Security-First Bank he National testified that had a conversation with Mrs. Neal time, defendant and at this him money told that the needed make a was to down payment on the El Patio Theater. Mrs. Neal then was taken to a bank in to she Westchester, which moved her bank ac- request. at remaining count defendant’s bonds were over Department turned to this bank to be forwarded to the Treasury redemption. the Mrs. Neal testified she agreed money never lend the to was to realized hq<| from these bonds. Mrs. Neal a note from Life’s for $13,500, received Estate (cid:127) did not of trust. An but receive deed escrow for the purchase by Estate of opened Life’s the El Patio Theater was Security-First at the Westchester Branch of the National $5,000 deposit Bank a on June 1948. The escrow deposit July 13, was closed and the on withdrawn 1948. attorney purchase Defendant’s testified that was can- unsuccessfully after agreement, celled defendant had at- tempted purchase to price, secure a reduction in because picture projection the motion booth would have be re- regulations, modelled conform fire of en- because from exempted croachments and easements that would be of title insurance. policy that, purchase Neal so far she knew,
Mrs. testified place she had taken went to La Brea officeof when Life’s on August 1948. she Estate There found a check for naming her as $4,470, payee, which had been sent to the payment through La Brea address in the bonds transmitted cheek, the Westchester Mrs. Neal endorsed but bank. possession subsequently deposited did not take it. It was waiting account of Life’s After Estate. until empty, speak officeswere that he defendant said wished to $17,500, her in his office. He offered new her a note for but give him she said that she did not want to rest of her might buy money' because a to make she need it to car or payment she down on a home. After an offer refused gun of a as a from appreciation, ear token defendant took look drawer, placed desk, said, here, it “Now you. monkey Neal. I no Mrs. don’t want business out of Do Frightened by you demeanor understand that?” defendant’s gun, picked up Neal presence Mrs. new $13,500 note and returned the note. just related, after the
Sometime events defendant told Mrs. building Neal that the theater had been condemned and that through. the deal had fallen The record also discloses that Mrs. Neal consulted an no attorney, but action taken. only She had received interest on her $649.49 loans at the time of trial. presented for the completely
Witnesses defense different version the facts. Leo Butts testified that each of the voluntarily women had *10 offered to make unsecured loans to corporation. corporation’s The offers were made to the officers, accepted stipulated who them. It was that Mrs. Butts testify similarly. testimony would There was also that Mrs. Russ must have known that the property La Brea was owned by Phillips, Dr. Mrs. that Neal had advised of cancellation purchase early part July the El Patio of and re- fused an offer return her and money, that she had been so eager proceeds to lend from her bonds that she called Leo Butts to her p. whereupon take office at 9:30 m., there, he took her and the completed transaction was in his presence.
There concerning standing is little evidence the financial corporation participation defendant’s profits. in the incorporation place The took 1947, December of when only 100 Capital there were members. stock of a face value $25,000 issued, corporation was but the did not receive all improvements amount in cash. this Extensive on the leased paid property corporation. office Leo Butts membership that the approximately testified had increased 2,000 made, only at the time the loans were but that $40 was charged membership, for each an insufficient amount in view high expenses. of the Thereafter the fees were raised to maximum of Butts also corporation $100. testified that the pay salary, could afford to defendant and that he knowledge organization.” donated “his business to our small admitted, however, Butts that defendant drove a Lincoln bought by corporation, automobile and had received for expenses. numerous checks cashed The fact postdated given payment checks to Mrs. Russ in one met, could not be and that the loans of both her loans Mrs. Neal Russ and Mrs. were used to meet overdrafts or for the operating expenses corporation, indicates that current having corporation was financial difficulties. jury relating The ease went to the with instructions obtaining larceny property trick and device and false pretenses. jurors were instructed that all would have agree on type theft, if De- any, was committed. support fendant contends that the evidence is insufficient to type a conviction of of theft, general either that the verdict of guilty unlawful, trial court erred denying grounds. his motion for a new trial on these
Although larceny by the crimes trick and device obtaining property by pretenses alike, false are much acquisitive techniques. are aimed different at criminal Larceny by appropriation trick and of property, device is possession fraudulently acquired; of which obtaining property by pretenses is the or deceitful fraudulent acquisition of possession. (See both title and People v. Delbos, 734, 131]; Cal.Jur., Cal. 736-737 P. “False Pre [81 tenses,” §13.) state, In this offenses, these two other have crimes, single larcenous been consolidated into the (Pen. Code, §484), crime theft but their elements have changed thereby. (People not been v. Myers, Cal. ; People Jones, P. 483-485 36 Cal.2d 376- 219] 353]; Cal.App.2d 140, Selk, 607].) purpose the consolidation was to remove the technicalities that existed in pleading proof of these crimes at common law. Indictments and *11 charging simply the crime of informations “theft” can now allege taking.” (Pen. 952.) Code, 951, an “unlawful Juries §§ longer need no be concerned with the technical differences general of types theft, between the several and can return a guilty taking” verdict of if find that an has “unlawful proved. (People Cal.App. 575, 88 581-582 Plum, been v. 862, ; 265 P. v. 484 People Myers, 480, P. 206 Cal. [263 322] ; People 142, v. 214 149 P.2d Fewkes, P. Cal. 219] [4 [275 ; see, also, People Cal.App. 323, v. 92 326 Palmer, 538] [268 of of in P.417].) types The elements the several theft however, changed, 484 have not been cluded within section theft, general of of judgment conviction based on a only guilty, of can be sustained if the evidence dis verdict (People of one of the consolidated offenses. closes the elements In 584, 897].) 586 P.2d Woods, v. Nor 37 Cal.2d of from record that each present case, it is clear posses pass both title and prosecuting witnesses intended to theft, any, case, of if in each was sion, type and that the pretenses. Defendant obtaining property false relating jury by the instruction to the prejudiced was not
259 requested instruc- he Indeed, larceny by trick and device. obtain- larceny by and device and trick relating to both tions was Moreover, his defense pretenses. property false ing possession, but between title based on distinctions taking any unlawful that there was no rather he contends sort. support obtaining
To a conviction theft prop erty by it must be shown pretenses, false that the defendant pretense representation a false or with made intent to de property, owner of his and that the owner fraud the was in unnecessary prove It is fact defrauded. from personally acquisi benefited the fraudulent
defendant 373, v. (People Jones, 36 Cal.2d tion.
353].) pretense representation The false must have materially part the owner to property, influenced his but pretense inducing not be (People the false need the sole cause. Chamberlain, Cal.App.2d 178, 182 v. 600] cited.) primarily If cases there the conviction rests single testimony pretense on the witness that the false made, making pretense must be corroborated. (Pen. 1110.) Code, § obtaining property by crime pretenses
The early (see Young King, unknown in the law common [1789]), statute, T.R and our like those of most directly states, II, chapter American is traceable to 30 Geo. 24, section (22 Statutes-at-Large [1757] ).1 an early Ry. Reserved, Goodhall, Rex v. Russ. & Crown Case quantity (1821), the defendant obtained a of meat from jury promising pay merchant at a future date. The promise per found that the was made without intention to judges defendant’s concluded, however, form. The that the merely pretense “was conviction was erroneous because the prudence promise conduct, of future common and caution any injury arising (Russ. prevented have from it.” & would Ry. 463.) questionable at correctness this decision reasoning King’s light in an earlier decision mentioned Rex (Young King, supra—not Bench v. The Goodhall). By stating “promise conduct” that the of future prudence prevent “common and caution” could was such that *12 persons knowingly provided, part, 1This in that “all who statute designedly, by any person pretenee pretences, false or shall obtain from persons, money, merchandizes, goods, or wares or with intent to cheat or any person persons . defraud against same". . shall deemed offenders or be 532.) publick peace. Code, (Cf. law and the ...” Pen. § 260
any injury arising therefrom,
the new offense was confused
with the old common law “cheat.” The decision also seems
contrary
plain
meaning
statute,2
and was so
interpreted by
English
two
writers on the
law
crimes.
(Archbold, Pleading in
Evidence
Criminal Cases 183
ed., 1828]; Roscoe, Digest of
the Law
[3d
Evidence in
Criminal
418
ed., 1840].)
Cases
Amer.
opinion
[2d
Rex Goodhall, supra,
v.
completely
misinterpreted in the
case of Commonwealth v.
(1837),
(19 Pick.)
Drew
36 Mass.
179, in
Supreme
which the
Judicial Court Massachusetts
(at 185), by
declared
way of dictum, that under the statute
“naked
regarded
lies” could not
pretences.”
be
as “false
On
questionable
the basis of
decisions,
these two
Wharton formu
lated
following generalization:
pretense
“.
. . the false
to within
statute,
things
must relate to a state
averred
to be at the time existing,
things
and not
a state
there
after to
(Wharton,
exist.”
American Criminal
542
Law
[1st
ed., 1846].)
generalization
This
has been followed
majority of
cases,
American
almost all which can be traced
to reliance on
or
Wharton
the two
mentioned above.
cases
United,
(Chaplin v.
States,
697; People
Karp,
157 F.2d
v.
298
Steely
N.Y. 213
;
Commonwealth,
N.E.2d
v.
171
[81
817]
but see
Ky.
883];
58
S.W.
v. Murphy,
Commonwealth
[186
Ky.
96
28
859];
562,
Ferris,
S.W.
v.
171 Ind.
564-
State
[27
565
; People
N.E.
52
244
P.
Orris,
v.
Colo.
[86
993]
[121
163];
Shevlin,
233];
State v.
81
121
A.
v.
N.H.
State
[123
Knott, 124
;
N.C. 814
36 N.D.
Spriggs Craig,
S.E.
v.
[32
798]
162
1007];
527,
N.W.
55
533
Howd,
Utah
State
[161
;
P. 628]; Frank
658
N.W.2d
State,
244 Wis.
[12
923]
Higgins,
875];
State v.
261
v.
67 N.Y.
lowing
People,
New York cases: Loomis
322 [23
;
.Rep.
Zink
App.R. (1937); 191, 116 Asterley, Rex 7 Car.&P. v. cf. Eng .Rep. (1835)). Early conflicting. deci precedents are California, the general Appeal follow sions of the District Courts Green, (People v. originally formulated Wharton rule as Kahler, 26 Cal. ; People Cal.App. 45, 48 P. [133 334] Cal.App. Reese, 136 App. ; People v. 449, 452 P. 228] [147 Downing, Cal.App. People v. 657, ; 663-665 P.2d 450] Cal.App.2d 657]; People Jackson, 392, 2d 395 [58 Daniels, Cal.App. People v. ; 203-204 P.2d 1085] Walker, ; see, also, People v. 76 Cal. 2d 556] *14 People Morphy, v. 100 ; see App. 192, 205 P. but [244 94] recently it has held 623]), 84 but more been Cal. P. [34 People v. (and holdings approved court in were this 353]) promise 373, P.2d that a Jones, 36 Cal.2d 377 [224 misrepresentation perform intention to is a made without existing misrepresentation of mind, of a state of and thus a meaning of pretense false within section fact, and is a (People Ames, Cal.App.2d 61 484 of Penal v. Code. ; People Gordon, Cal.App. v. 522, 531-532 P.2d 71 [143 92] 606, ; People Chamberlain, 624-625 v. 96 2d P.2d [163 110] Cal.App.2d 178, ; People Davis, 182 P.2d v. 112 [214 600] Cal.App.2d 286, 289, ; People 298-300 P.2d v. [246 160] 680, also, Frankfort, Cal.App.2d 401]; see, 114 698 P.2d [251 People Bratten, Cal.App. People 658 P.2d ; v. 137 [31 210] People Mason, Cal.App.2d 445, ; v. 86 449-450 P.2d v. [195 60] 711, People Staver, Cal.App.2d ; 716-720 P.2d [252 700] Silva, Cal.App.2d 251].) v. These deci following majority rule, sions, like those were made with explanation of for little the reasons the rule. Court of Appeals for of has, however, the District Columbia advanced following majority reasons defense rule: “It is then, early English of true the time of course [at supra] by Wharton, now, cited as cases intention to com by looking crimes mit certain was ascertained backward from finding the act and that the accused intended to do what he where, here, However, complained the act of— did do. namely, repay money specified failure or use it as at the borrowing—is ordinary of time as consonant with commercial conduct, danger with criminal of applying default as this technique prove quite apparent. the crime is Business materially would be encumbered present affairs ever might subjected be penalties that the debtor to criminal threat jury if the view that at the prosecutor time mentally prose- borrowing a cheat. The risk of he was cuting guilty nothing who more than a failure one is very . . . pay his is a real consideration. debts way accept government’s position “If we were to open every bargain bad to resort would be victim proceedings judgment to criminal to even the score with No proof adversary. development in the our criminal doubt protected pro law the zeal with which the innocent are has guilty. However, vided a measure of shelter for the we possibility do think wise to increase the it conviction broadening accepted theory of weight at (Chaplin tached to the mental attitude of the accused.” v. States, 697, 698-699; dissenting F.2d but United see the opinion Edgerton, J., 699-701.) We at do not find this persuasive. reasoning state, this and in the ma jority of American states as well as England, promises false provide (Civ. can the foundation a civil action for deceit. §§1572, 4, 1710, 4; see 125 Code, subd. subd. A.L.R. 881- 882.) something nonperformance In such more actions than required prove perform the defendant’s intent not to his promise. (Newmanv. Smith, 22, 26 ; Berkey 77 Cal. P. 791] Halm, Cal.App.2d 885], v. and cases there cited; Torts, c.) proof Rest. com. Nor is § nonperformance prosecutions alone in criminal sufficient promises. (See, People Gordon, v. example, based supra-, People Chamberlain, Frankfort, supra-, *15 supra-, People Davis, (1949), v. 1 K.B. supra; Rex v. Kritz 82.) prosecutions People must, In such as in all beyond prosecutions, prove criminal a reasonable their case Any through of danger, instigation pro doubt. criminal ceedings by disgruntled creditors, to those who have blame lessly therefore, must, encountered “commercial defaults” be predicated upon juries incapable that of the idea trial are weighing understanding the evidence and the instruction that they must be convinced of the defendant’s fraudulent intent beyond appellate a or doubt, reasonable that courts will be discharging duty derelict in their ascertain that there is support sufficient evidence to a conviction. problem proving intent when the pre false promise no
tense is a false is more difficult than when the pretense misrepresentation existing false is a fact, perform promise regularly proved the intent not in Specific for civil actions deceit. intent is also an essential many Moreover, element of cases of obtain crimes.4 ing property proved any by false must that pretenses, it be misrepresentations alleged by were made fact knowingly misrepresenta and with to deceive. If such intent tions innocently inadvertently, are can no more made or obtaining form prosecution property by for for basis pretenses false than can an innocent breach contract. pretense promise misrepre or
Whether is a false proved fact, sentation of the defendant’s intent must be by something proof both instances more than mere non performance falsity Ballard, or (cf. actual United States 1148]), U.S. 78 L.Ed. and the S.Ct. defend jury ant is entitled to have the instructed that effect. “ accepted theory weight of the attached to be to the [T]he therefore, is, mental attitude of the not accused” “broad ened,” substantially (Cf. Chaplin but remains same. States, 697, 699.) United F.2d supra, 157 express provision
It has been contended that obtaining property promises for by false in section 182 of Legislature regard the Penal Code5 did not indicates that promises pretenses” such the meaning as “false within support Penal Code. In sections of this urged obtaining property by contention it is if the perform promises false with intent fraudulent not such promises regarded unnecessary a crime it as provide for such a in subdivision 4 of crime section 182. of a It is then concluded since words statute cannot regarded if superfluous, as reasonable construction give preserve all thereof will effect to them and other words statute, provision section 182 for obtaining given property promises only false can be effect on the theory Legislature regard did obtaining property by promises as a crime and such therefore being larceny, example, arson, burglary, mischief, robbery. malicious 4For crimes, prosecutions attempted for or for with assault intent to com robbery, etc., specific murder, rape, proved. mit intent must also be persons conspire: any "If two 1. 5Section 182: or more To commit Falsely crime; maliciously any crime, to indict 2. another or to to crime; procure charged any Falsely to be arrested another or 3. any suit, proceeding; or i. To move or maintain action cheat or defraud any any property, by any person of means are in which themselves criminal, promises money property by pretenses toor obtain or false perform promises; fraudulent not to intent to such 5. To *16 any injurious public health, public morals, act commit or to pervert justice, They or the due of or obstruct administration the laws. punishable as are follows: ...” argument proves too much. by covered 1. This subdivision provide conspiracies for to commit acts Subdivisions and 3 perjury perjury. or subornation of that would amount provides conspiracies cheat or defraud Subdivision 4 any person property “by any of his means which are in ’’ criminal, property by pre- obtain and to false themselves a defined in 484 and of Penal tenses, crime sections Code. includes acts that are criminal. Subdivision likewise many provisions acts Since these describe that are undoubt- edly language and thus included in crimes, the broad of probably Legislature subdivision added of of carrying out an abundance caution to insure the out of purpose its to include all scope such acts within the of section. same abundance of caution is evidenced pretenses” subdivision the inclusion both “false promises” though and “false even the former includes the pretenses” latter. The omission a comma after “false also Legislature indicates that not did set the off one separate from other as a class of regarded crime but them the same kind of crime. promises
If false were not false pretenses, legally sophisticated, without fear of punishment, perpetrate could unwary on the fraudulent schemes like divulged by the record in this case People and those described in Davis, v. Gordon, supra, People supra, People Frankfort, supra, supra. v. Chamberlain, To hold prom that false pretenses ises are not false would sanction such with schemes any corresponding public out benefit to the order. promises
inclusion false within sections 484 and 532 of will “materially the Penal Code encumber” business “ ’ Ordinary affairs.6 commercial defaults’ will not be the subject of criminal prosecution, essence the offense obtaining property by pretenses false (as is always it has been) the fraudulent intent the defendant. This intent proved prosecution; showing must nonper promise falsity of a representation formance will not suffice. above, property by promises 6As shown to obtain has been an many years. in a offense number of states for indictable has not been directed to . Our attention judgment any of conviction in of those states ‘‘ remotely resembling ordinary based on transaction an com reports inquiries scholar
mercial default.” One directed to the leading Bureaus Better Business cities of those states received entirely negative community answers. The business does not seem to be present prosecutions an “ever threat” aware of criminal for breach Pearce, supra, See 101 U.of of contract. Pa.L.Rev. 1007. *17 support to contending the evidence insufficient that is de property by pretenses, obtaining his conviction Mrs. testimony of Mrs. argues fendant that the Russ inconsistent and only contradicted, was not but was Neal It incapable of belief. self-contradictory, and thus false, from to determine jury true the was for the to sift the weight given to be credibility the of the witnesses and the if incon testimony witness, individual even it was an the White, Cal.App.2d 828, (People v. sistent. Cal.App.2d Frankfort, 680, ; P.2d 108] People Moulton, Cal.App.2d 195, 197 ; 401] 317].) points Defendant to Mrs. Russ’ the “they” that owned defendant told her testimony that loan testimony the and to her later that property La Brea corporation “was directly defendant, that the was made his all,” into she relied on brought this at and that property. Mrs. ownership of the La Brea representation age possible of trial. is years of at the time It Russ was 71 interchanged owing knowledge later pronouns that the or tongue, to the fact defendant slip the that acquired, a corporation represented he had become one in her and the jury for the to consider in deter mind. matters were These weight given testimony; not, to be do mining the destroy testimony. The same holds contended, as is sig Russ’ her respect to Mrs. refusal admit true with acknowledging receipt of note and letter nature to the apparent corporation. from It that this trust deed stationery Estate, on the Life’s was letter, typewritten acknowledge by her, and that she refused to not written signature her because the letter stated that she or letter prior receipt to the one whose received a had note After a note acknowledged trial, in the letter. dated Jan which is the one uary produced, presumably was made. Even if there was such a to which' reference or follow that Mrs. Russ received it it does not note, the contents the letter were she realized what when she if received the note and returned it signed it. Even she forgot letter, and thereafter concealed as indicated is not material to the main fact, this the matter issue credibility. merely to goes Neal, Mrs. defendant
In the ease of contends that negates completely represen- reliance on gun episode testimony contradictory her was so tations, improbable. Neal testified that inherently Mrs. she agreed $4,470 to lend that was be realized never testimony This redeemable at a reflects bonds not bank. np her Mrs. Neal all strong inability to make mind. took instance; her bonds to the bank in the first thereafter she proceeds not then to be allowed the the bonds cashed sent finally address; to her La Brea she at the endorsed possession jury conld cheek bnt did not take it. reasonably conclude that she intended to make a loan money represented by time, in the check at reliance upon representations previously Thereafter, made. gun episode accomplished no occurred. It more than an exchange giving notes, appearance an promissory outward *18 regularity of to the Defendant’s transaction. contention any proved that if crime were in connection with his trans- Neal, Mrs. theft, actions with it was extortion and not must rejected. forcibly therefore be Defendant did not take Mrs. money gun episode. already acquired Neal’s the He had it, already and the crime of theft been committed. justified
The implied evidence finding that money acquired had been jury felonious intent. The reasonably could conclude that defendant was the true head organization, this deliberately and had acquire set out to savings life his victims, one a woman nearing 70 and the other a woman little education and rural background, and both with little or experience. no business The women hy were won over flattering positions offers of organi- promises zation and false of security for their loans, and held in by importunate thereafter line and then menacing supplications. The lure an ambitious project theater eyes held before the project each, a that was never realized. The evidence was sufficient implied to sustain the findi-ng that acquire defendant never intended to or build such a theater, and, indeed, the financial situation revealed acquisition evidence made the building or of such a theater illusory. money acquired The was needed and used for the running expenses of corporation within a short time of receipt. its contends,
Defendant also necessary proof “corroborating lacking. duty circumstances” It is the reviewing court the evidence examine to determine required whether the corroboration the statute has been weight proved; given to he such evidence jury. is for the testimony fully The of Mrs. Russ was corroborated. Farnsworth The witness testified that defendant had told him 268 defendant, and that belonged property the Sunset of a plans an architect had been sent
Farnsworth Mrs. It was also shown to be built thereon. theater Canyon on the Nichols given deed a second trust Russ was promised had been that she property. Mrs. Russ testified main- property; the defense mortgage on La Brea first The throughout loan to be unsecured. that the tained promise to prior of a was indicative giving of the trust deed testimony and the security. of various witnesses give Mrs. Neal’s testi- clearly corroborate opening of escrow Theater. promises buy the El Patio mony about defendant’s made has the fact that a defendant addition, although at representation another, similar the same corroborating circumstance. place, is a different time People ; P.2d Jones, 373, 379 (People v. 36 Cal.2d 353] [224 v. 445]; 516 Cal.App.2d 503, P.2d Chait, [159 People v. ; P.2d Cal.App.2d 492, 497 McCabe, 60 54] [141 People v. ; France, Cal.App.2d 152, La 465] People v. White- ; Fisher, Cal.App. 243, 564] present 132].) Iir the P. Cal-App. 33, side, to each representations were made essentially similar case, similarity express only is not women. There employment, approach, in basic offers representations, but They corroborate may therefore repeated supplications. supra.) Jones, (People other. each corrobora- attorney general contends that additional defendant did call found in the fact that may tion corporation, as a witness. Wingrave, president Mrs. *19 Wingrave any that Mrs. had disclose the record does not As light on have thrown whether the knowledge that would made, or not been the failure to had representations bearing no on this have issue. her witness can call as a testify that defendant’s failure to is is also contended It the defendant’s failure to take stand A corroborative. against presented him, deny explain or evidence when “to may jury be considered the power so, to do it is his evidence, tending the truth such and as to indicate among may reasonably the inferences that indicating that to the therefrom, unfavorable defendant are those be drawn (People Adamson, 478, v. 27 Cal.2d probable.” the more testify But the failure to 3].) will P.2d 489 [165 proof. (People prosecution’s v. in the supply a lacuna People v. 215, 160]; 221 P.2d Cal.App.2d Zoffel, [95 People 3]; P.2d v. 489-490 478, 27 Cal.2d Adamson, Cal.App.2d 1001]; P.2d Sawaya, 466, 471 [115 Cox, Cal.App.2d 290].) P.2d The rule 285, 287 [227 analogous produce is to that in where the failure to cases civil part may evidence on the the defendant not be considered prima plaintiff. until a facie case has been made the (Girvetz Boy’s Cal.App.2d 827, Market, Inc., 91 6]; Traylor Eng. Mfg. Co., Cal.App.2d Breland v. & 455].) 425-426 cases, In criminal after prosecution prima case, has made facie failure testify any defendant affirmative evidence of is not fact, any circumstance, inference that can, in be justly persuasive drawn therefrom probative, rather than lending weight presented by prosecution. to the evidence present case the corroborative evidence adduced the State go jury, was sufficient to to the allow the case which could then deny consider defendant’s failure explain that determining weight evidence in it was to be given.
Defendant hearing contends that he was denied a fair on his motion for a new trial and that the trial court abused its discretion in failing grant ground a new trial on the newly discovered evidence. daily the fact
Despite transcript that a of the trial available, hearing was three continuances on the motion granted request new trial were at defendant’s hearing counsel. The was July upon then set for 20th understanding definite that the motion was to heard and day argued decided then. On that counsel the motion at length parts and announced other of the motion were process preparation by defendant who needed time signatures to secure No affidavits. details as to con- were furnished, tents affidavits nor did defendant’s state that defendant argue. counsel wished to Counsel indi- argue he cated that would not remaining part of the granted motion. A continuance upon the condition that argument. would be no further oral there Neither the State objected nor ruling. defense to this It was not until several more continuances had been granted, owing to the filing of late affidavits and prepare the need to counteraffi- davits, that the motion was submitted and decided. It the discretion of within the trial court to any refuse con- July (People 20th. tinuance v. Winthrop, 118 Cal. 85, People v. ; Mayes, P. 78 Cal.App.2d *20 390] 291-292 granting upon the 590].) The of a continuance indicated, proper. under circumstances and was conditions judge trial com- filed, When defendant’s affidavit was upon the were set forth three mented fact that documents statements, therein, four that it irrelevant and times contained repetitious argumentative. that it He commented (78 tried unnecessarily long pages) an affidavit that such that only patience court, not of the trial but it should if try appellate court, patience “it their go before an would saying seeing how deserves that to the that it well extent ’’ you it. fly up far it when throw will stairs court, as the attitude of the trial Defendant contends that argument and its by the of additional oral reflected denial impartial hearing motion on the remarks, fair and denied trial re If the court misconceives or for new trial. duty a motion for a new fuses to do its with reference to argument, opportunity oral trial and denies reasonable granted. (People Sarazzawski, new must be trial 934].) shows, The record how Cal.2d 17-18 remarks, carefully despite judge the trial ever, that his called presented read affidavits and considered the originals of the mentioned therein. The affi documents argument by defendant were effect the oral davits filed im presented in written form. It is that fair and clear hearing on partial the motion was had. newly evidence consisted of docu-
The discovered suppressed by the at- withheld and district allegedly ments torney relating testimony that would show and of affidavits perjury. Neal had documents were that Mrs. committed among corporation allegedly the files seized attorney returned such district and not until time presented during the This found trial. could not be true, charge If it to show a deliberate is a serious one. tends knowledge testimony full attempt perjured convict falsity. facts, however, charge. refute the of its Bartholomew, of a and an affidavit affidavit Miss An full files of Estate access to the Life’s defendant, averred given; McClure, investigator Mr. an been attorney’s office, had refused full to the the district access of the averments therein denied files. The truth of the assistant district and of Mr. attorney counteraffidavits unverified affidavit of Miss Bartholomew told An McClure. attorney her the assistant made district threats foregoing relating her affidavit. *21 of the mere denial the however, than more, There was only document therein. implications charges and the certainly pro- have almost would and that was material that one that was authentic it been result had different duced a had been Russ testified Mrs. receipt that the
purported to be him. This returned later by defendant and given her singu- Russ, is of Mrs. signature the document, which bears been reached agreement had an larly complete; it states that Estate, of Life’s of directors and the board between Mrs. Russ was be that loan unsecured, the to be that the loan was general and other on bills purpose paying for “the used option, or at it’s sole and Estate, Ltd., expenses of Life’s property improving leased maintaining or the at for Phillips, Dr. or from a Brea, which is leased 1537 N. La by corporation at 7051 Sunset Boule- the property the owned con- being are now an office and ballroom vard, upon which making strictly Russ was the loan structed,” and that Mrs. possi- investigation reliance on the future upon her own every contradicts business. The document bilities testimony. Clark incriminating of Mrs. Russ’ Mr. item signature handwriting was Sellers, expert, a testified that opinion in it a carbon that of Mrs. Russ and that his was impression original signature pencil. affidavit, In an an document, Mrs. Russ averred that she had never seen the signed package by for of chocolates sent that she had or person did not enclose a card make himself known. who manager apartment of the in which Mrs. Russ house messenger in an that a had come lived stated affidavit accept manager’s refused to package, deliver but signature appears it. It thus the document had attorney, not been in the files the district held but was signature manufactured, procured and that the thereon was by stratagem. document, Another purporting such to be the agreement of Mrs. Neal to the cancellation escrow mentioning unsecured, that her loan was was filed with the appellate year court almost a the files had been after returned. part signature document might That where Mrs. Neal’s have,been, torn presented newly was off. The other matter discovered evidence was cumulative, denied counteraffi- davits, and came from unreliable sources. The did not court denying abuse its discretion in motion a new trial. testimony preliminary hearing read Neal’s at Mrs. Neal was in North Carolina at Mrs. time at the trial. trial, and unable to to this come state. Section right provides. the Penal Code a defendant has against pres- to be him confronted with the witnesses in the deposition may ence of court of a witness but if he is or found dead, insane, read cannot be within charge if the state, and has been before a commit- examined ting magistrate testimony by question and the down taken presence and answer the defendant who has himself through opportunity or counsel cross-examined cross-examine. hearing, $13,590 cashier’s check for preliminary
At the her and endorsed was introduced payable Mrs. Neal deposit slip of the date evidence, along bank same to the account of Life’s deposit of the same amount showing a *22 she endorsed check Neal had this Mrs. testified Estate. given trial, to At the had it him. the to defendant and of the date second cashier’s check same introduced a deposit payable Estate endorsed for amount, to Life’s Mrs. the first appears that Neal endorsed defendant. It to the bank which then issued the second check back cashier’s to Life’s Estate. contends payable check Defendant cashier’s opportunity to cross-examine Mrs. denied the that he was signature validity of her on the second Neal the cashier’s about testimony preliminary her at hear impeach and to the check right merit. of ing. is without This contention (People Wallin, 777, v. 34 can waived Cal.2d confrontation object did the intro and defendant not 1]), 781 [215 the Furthermore, the cashier’s check. duction of second check testimony about the first cashier’s error in Mrs. Neal’s of face second cheek. The issue was is the the apparent court jury, and the trial err presented thus to the did admitting check in the second cashier’s evidence. reading of Mrs. that the Neal’s testi Defendant contends right mony deprived of the of him confrontation at the trial of Constitution. Even if this in violation the United States right guaranteed process under the due is clause Amendment the United States Constitution Fourteenth Snyder (see Massachusetts, v. 291 contended defendant 674, L.Ed. 90 330, 575]), 78 97, S.Ct. A.L.R. U.S. [54 merit the contention. no “The substance there is preserved protection prisoner is constitutional advantage seeing has once had he witness face- subjecting him the ordeal to-face, cross-examina States, (Mattox v. United 237, U.S. tion.” advantage 409].) 39 L.Ed. Defendant S.Ct. hearing. preliminary at the in-
Although conspiracy was also count of criminal does not in- preliminary that fact hearing, volved at the tran- examined the testimony. Mrs. Neal's Counsel validate at the script inadmissible testimony and eliminated that was testimony parts admissibility trial. The of controverted passed upon by the trial court before it was read jury. of a upon the denial predicated error is claim counts the two prosecution elect between motion to have Neal, from Mrs. grand theft with charging defendant grand from charging him with theft counts between two com only one contended that theft It is Mrs. Euss. prosecuting witnesses. “Where to each of mitted as given to show existence proof in case sufficient part purpose of an accused intent on the of a fraudulent repre false or fraudulent property from another to obtain making representations which sentations, first false person were made to to whom moved or induced the defrauding per part property his does not immune subsequently obtaining punishment for from said son from parted the in person property other which was with under representations were still fluence of the fraudulent which person on the mind the defrauded at the time operating passed property designing per into he his the hands said v. (People Rabe, 303].) son.” Cal. P. consistently (People has been followed in state. This rule this Scott, Cal.App.2d 350, 122]; People 351. *23 808, Howes, Cal.App.2d ; People 818 P.2d 99 v. [222 969] Cal.App.2d 373, People P.2d ; 37 378-379 v. Miles, [99 551] Cal.App.2d Ellison, 496, 732].) 26 498-499 P.2d [79 charged that he could Defendant contends He prior felony conviction. with admitted conviction of a felony, serving and the of a conspiracy, a term therefor in penitentiary. For time a federal the first on appeal, it is conspiracy the crime was a to revealed that use the mails to defraud, and it is contended that such a conviction is not prior (Pen. our It Code, a conviction within statutes. is. (e).) The fact that the minimum of 969b, 3024, subd. term §§ thereby increased render law sentence is does not the unconsti- (People Dutton, 505, v. ; Cal.2d tutional. P.2d 218] People Dunlop, Cal.App.2d 314, v. 316-317 Am.Jur., Criminals, 3-8.) Habitual ; §§ 281] judge deprived Defendant him a contends that the trial of by limiting acting fair cross-examination, prosecutor, trial as slyly hinting prosecutor to to We the how lead witness. find no basis in the record for “It these conclusions. right only duty judge is not the of trial so but supervise regulate of a the course trial that the truth may be, shall be far it revealed so as within the established (People rules of evidence.” Mendez, 193 Cal. 46 [223 P. 65]; Martinez, Cal.2d 224].) duty performed judge was That and the trial so fully safeguard rights. conducted the trial defendant’s as Finally, defendant contends that the district attor- ney guilty argument jury, was in his misconduct to the particularly was when he said that Mrs. Russ “robbed” security of her second trust deed later time. The at a jury charge involved, was aware no to that effect was colloquial and that word was used in the rather than legal jury The properly sense. cautioned. purported appeals from the are verdicts dismissed judgment
nonappealable. The the order denying for new motion trial affirmed. are Gibson, J., Shenk, C. J., Edmonds, J., J., and Spence, concurred. Concurring
SCHAUER, J., Dissenting. I concurin judgment ground on solely the evidence estab- ample lishes, corroboration, the making the defendant representations existing as to facts. On that evidence pursuant should be sustained to long accepted convictions theories law. unnecessary
It is the record to make of on this rather simple revolutionary case holding, contrary a vehicle to the weight authority elsewhere, in this state and promise that a pay perform date, a future if unfulfilled, at can become prosecution for a criminal theory basis it promise present was a perform made without intention therefore, that, it and whatever value was received promise property procured representation. a false Accordingly, portion I dissent from all that opinion pronounces upon which discusses and the theories which in my proper disposition view any extraneous are issue actually before us. majority opinion strikes down a of law, rule relating competence proof
to the character and of crime, which *24 years—and for 200 universally respected has been almost the innovation for reasoning which advanced the has been must not grand prosecutors creditors, jurors, is against inno- charges any expected be criminal to institute of intelligence they if do the people, and that even cent be judges jurors appellate can trial and the wisdom of honored right wrong, hence time depended upon to the the reasoning and may unreality of this scrapped. rule be become obvious on reflection. the of the old rule wisdom of obtaining property making the prosecution by In a deceive, the promise, knowingly and with intent a false proved, purely criminality, to be as its is sub- matter specific jective. like in crime as not, It the intent such a any crime; is, significant mere it in burglary, element of the necessarily of proof all will be sense, of crime. entirely objective acts, legal from in- themselves, in which illegal subjective will be to the ultimate fact ferences as subjective burglary proof in But, whereas of the drawn. normally proof of strong element is and reliable as the any objective of element, type activity proof this reliable; in- such vital element can almost never be it must evitably (in something absence confession tanta- thereto) by depend creditors, mount on inferences drawn judges from prosecutors, jurors, and facts and circumstances possibly which reason their nature cannot exclude any certainty, innocence with point guilt and which can only interpreted construed creditor, prose- when cutor or adversely person trier fact charged. to Such proof of alleged long recog- inferences as crime have been nized as so unreliable that have been from excluded category acceptable proof. proof rule mere overturning a basis
As promise perform the future and sub- making of a proof of pretense, is not a false sequent perform failure to opinion purportedly to the rule majority first adheres “proof nonperformance alone by stating that [is not] prosecutions promises,” on false criminal based sufficient through argues danger, instigation “Any then disgruntled creditors, to those who proceedings criminal blamelessly must, ‘commercial defaults’ encountered have upon juries trial are therefore, predicated idea that be understanding weighing evidence incapable they must convinced of the defendant’s instruction that beyond doubt, appel- a reasonable or that intent fraudulent *25 late discharging duty courts will be to ascer- derelict their in ’’ tain there a support that is conviction. sufficient evidence to doctrine, universally This if applied, would eliminate all rules governing quality sufficiency proof. the credence The placed testimony to be in or accomplices, the com- other plaining sagacity entirely would be left to witnesses, the jurors presumed judges. and the of appellate omniscience unwilling I am to accept premise as a the scholastic redaction majority of the proof may that rules of be set aside because appellate judges will always jury know when a has been proof misled and the important not sufficient. The most perform function which to respect courts have in to criminal law is not to alleged make easier the ; conviction miscreants protection against it is of the innocent false conviction. highest duty The perform which this court has to in the justice cause of protect person against is to the individual power state; grievous injury the most do it can people building superstate by is to assist in coun- tenancing rights encroachments individuals and whittling away protect at the rules which them. suggestion
The in majority opinion it is incon- juries ceivable incapable “that trial are of weighing the [impliedly, evidence accuracy omniscient in- however understanding conclusive it they the instruction that be] must be convinced the defendant’s fraudulent intent be- yond doubt, appellate reasonable or that courts will be derelict discharging duty” than in their [less' omniscient] striking affords no substantial basis for proof. down a rule of opinion naively misrepresentations “If . . . continues: innocently are made or inadvertently, can no more form prosecution obtaining basis property pretenses an than can innocent breach of contract”! tragic part quoted philosophy is above very declaration of it as a rule of in law makes it false It becomes false in published fact. fact because when as a rule law it cuts the pertinent safeguard heart out of a which the accumulated wisdom of at least two centuries has necessary found to prevent be the conviction of the innocent who have met with commercial misfortune.
With majority enunciates, the rule that opinion now man, no no matter intention, sign how innocent can his promise pay perform future, an act at a date, subjecting future without himself the risk that at others, light some later date of differing perspectives, may that, after' events, conclude subsequent philosophies and date have known that at the future all, accused should a “reason- and if he—as perform promised he he could not as creditor, district point from of view able” man then, known, have attorney grand jury—should and a or trial inferred may if it can be inferred, it he did know. And will appellate courts knew, he then court and other this affirm be bound to a conviction. foreseen, easily to be by jury,
A trial under circumstances I have protection offer a case. would but hazardous such system constituted. faith—great jury faith—in our as now developed through seeing operate I it But have that faith regulations under wise and time-tested limitations proof not unreal- to the characteristics of which do essential *26 attorney istically any that a district assume human—whether juror juror judge justice or or or or of a grand a trial a beyond error. court-—-is ruling majority reaching revolutionary
The far shown, indicates under the circumstances opinion made declare enforce law as a fervor to much a desire to me not so ruling necessary to an affirmance is not law; the criticized new merely more did than make case. Defendant here in this present perform, intention or promise, with without perform and fail to that pay in the future his victims from could be which it found promise. There is evidence property to defendant induced to deliver that Russ was Mrs. degree knowingly on material his false throúgh reliance in a Brea on property, he owned the La which representations that mortgage,1 give property whereas the her a first he would feloniously taking separate in counts of accused two 1Defendant was 19, 1948, money $3,000 on or about November and of in from Mrs. Russ money 4, feloniously taking $4,200 in from her on or about December 1948. following: People’s On as to these counts shows the evidence 18, 1948, Russ that owned defendant told Mrs. he the Sunset November any property, cash, if she had and when she and replied La Brea asked her give mortgage 63,000 that he would her a first that she had stated money. property him if would lend Later on on La Brea she any personal Mrs. Russ if she had real or the 18tli defendant property asked him that had a first trust deed and a chattel and she told she mortgage. and, Russ to bank induced On 19 defendant drove Mrs. November misrepresentations, $3,000 in delivered and in reliance on the she cash to him. repeated misrepresentations his as to the La Brea Defendant thereafter any property inquiries his as Mrs. Russ other to whether owned property, exchange that in for first trust deed could and stated she mortgage property. on “four five have Either a first the La Brea was in Phillips, fact owned Dr. who had leased it to an officer stockholder of Life’s Estate and had not author ized its encumbrance. There is from which evidence it could found that material element in the inducement Mrs. property Neal to deliver knowingly to defendant was his representation good false security she would have her loan because Life’s Estate was worth half a million doll ars,2 difficulty. whereas it was in fact in financial These false representations existing as to matters of support fact would consistently It has been conviction. held in this state though even there but one misrepresentation, there separate through pretenses are offenses of theft if prop erty separate occasions, is obtained on because the crime is complete possession until defendant obtains prope rty.3 days” transaction, again after the cash or on November defendant drove Mrs. Buss to the bank and she obtained and turned over to him mortgage.
the trust deed and chattel "cash” these evidences of indebtedness. Defendant told her he would Shortly $1,580 Buss thereafter Mrs. sold her trailer for and turned defendant, again representations this sum over to to reliance his property. La Brea January 15, 1949, About defendant sold the trust deed to a broker $3,000. separate feloniously taking 2Defendant was accused two counts of $13,590 19, 1948, $4,470 from Mrs. Neal on or about June on or August 3, about 1948. People’s following: evidence as to these counts shows the March, any defendant met Mrs. Neal and asked her whether she had property. $17,500 She told him that she had in "war bonds.” He questioning Carolina, further learned the bonds were North loan, making discussed with her the of a and induced her to have the bonds sent to her. possession inquired Mrs. Neal After obtained of the bonds she as to *27 security replied security "good,” and defendant that the would be that dollars, $125,000 Life’s Estate was worth half a million that there was equipment building alone, in worth of property.” mentioned the La Brea and "a lot of other 19, 1948, day On June the after defendant made the last representations, he Mrs. drove Neal to a bank where she $13,590 cashed of the bonds and endorsed and delivered to defendant for the check that amount which she received from the bank. remaining bonds, At defendant’s instructions the which could not be directly by bank, cashing cashed a were mailed for with directions that the check therefor be mailed to defendant. Defendant thereafter received August 2, payable $4,470. a check dated to Mrs. Neal for She endorsed August August this cheek on 3 and defendant cashed it on 4. substantially situation 3The here is similar to that in v. Rabe (1927), 409, 303], by 202 Cal. majority. 417 P. [261 relied on the charged obtaining There defendant was in counts three with from one person by pretenses $1,250 August 2, $4,000 August 5, false on on and a property $11,000 August deed to real of the value of on 15. Each sum payment corporation in be, was but for not, in stock which defendant said would which, incorporated. representations thereafter The false Constituting
Evidence Corroboration Penal Code requirement of section 1110 The only one testimony of proved by the pretenses, if the false pre by of similar is met evidence witness, be corroborated (1922), 58 Cal. Whiteside (People made to another. tenses (1931), 115 Cal. ; People v. Munson App. 33, 41 P. [208 132] (1943), ; People v. McCabe App. P.2d 694, 227] [2 Cal.App.2d 54].) P.2d made to each existing facts representations Here the they similar; Neal, were and Mrs. victims, Mrs. Russ ownership prop- existing misrepresentations as to were constitute would Estate which or Life’s erty defendant similarity of The might make. they security any loan for repre- is shown also in each case scheme defendant’s put. Even loan would be any to which as to the use sentations in the things to done representations as to though the conviction, support a in themselves future are sufficient and their of the fraudulent scheme part they constitute employe corroboration. furnish additional similarities cashing of Neal’s arranged for the Mrs. of the bank who Mrs. Neal came defendant and that when bonds testified proceeds of the bonds were to bank stated acquired persons and certain had assets had been that certain were company. proposed agreed contended Defendant as officers of the to act “ held, [p. parts. split It was 413] into three crime had been that one Where the fraudulent intent or given proof of a is sufficient to show the existence in a case property part purpose an accused to obtain on the making representations, of the false or fraudulent from another person representations which moved or induced the to whom first false defrauding property part they person with his does not immune made to were subsequently obtaining person punishment from said from parted property influence of the fraudu with under the other which upon operating representations still the mind of the which were lent property passed person his into hands of at the time he defrauded [p. accomplished designing person. is . . . crime when 414] [T]he said an accused receives fraudulently gain. fraud possession property planned into his which he ease, general in instant So while intent to de may in mind been formed of the accused at the time of have completed offense, charged first other crimes or before he completed days unlawfully separate distinct offenses he property possession in described the several counts of the took indictment. ’’ theory pretenses eases is somewhat similar to that em appropriation portion where each act of fraudulent cases of a bezzlement separate property which defendant is entrusted is a crime (1940), 969]) (People 16 Cal.2d rather Stanford larceny taking property eases where the on different than that pursuant general plan and even from different owners to a occasions single (People (1934), Cal.App.2d 224, offense v. Dillon treated as 416]). *28 involving be used in a real estate transaction a theatre. Also Farnsworth, employe one an who Life’s Estate a was not him victim, testified that defendant told that defendant owned property. Sunset Generally following corroborative is the evidence: Farns- had worth testified that after Mrs. Russ delivered her property repayment to defendant she him for asked a time at sooner willing agree to; than defendant, defendant was as that Russ, appeared excited; well as Mrs. to be and that defendant said, me, “it will am I going ruin and how to raise the money.” investigator for attorney An the district testified that he went to home defendant’s and the offices Life’s April 17, 1950, and told Estate defendant’s wife and employes of Life’s Estate had a officers and that he warrant arrest; for on this defendant’s that occasion and on two investigator they other occasions when returned did not whereabouts; disclose defendant’s that after defendant was Long in finally apprehended 1950, Beach August, he said gone attempt had in an funds, that he east raise that he time known some that a warrant for his had arrest had issued, yet he had been surrendered he because straighten out his Mrs. Shepard, wished affairs. a woman victim, April to be a testified that on not shown a telephone she conversation which defendant told city going days her he was out of the few raise arrange money, money would some he that her be re- longer being “I can’t I turned, any and that talk ... am watched.” Mrs. Russ and Mrs. Neal as to
The testimonies the cir- properties under which turned over their cumstances subsequent to defendant and as to circumstances are some may jury well respects confused, but have concluded that casting confusion, than doubt on the this rather essential as to the portions representations, their testimonies false their aspect an characters which made indicated defendant as victims. select them subject representation of the nature of the neces-
On the promise” crime sary (whether constitute the “false existing past fact), jury or misrepresentation instructed follows: by obtaining money by
“To
the crime
theft
constitute
pretense used
must be
fraudulent
pretense,
the false
existing
past
representation of an
fact . . .
*29
concerning
of
or a statement
expression
opinion
“A mere
representation . . .
future is not such a fraudulent
you
the statements
if
find that
“You are instructed that
by
made,
true
that a sub-
the defendant were
when
made
impossible
sequent change
conditions, which made it
in
make
a false
carry out
as made would not
them
the statements
representation
..
.
“
present intent and
expression
is
of the
promise
[A]
unconditionally
promise is
made
is a fact. Therefore if a
a fraud.
performance,
and made
intention of
it is
without
contracting party
perform
a
The secret
not
intention
agree
execute their
promised act which induces contractees to
representation.
of his
Whether a
ment is an essential feature
by subverting the will
promise made to effect a transaction
judgment
promisee,
dishonest,
of a
was
is a matter
and
in
jury
from all of the evidence
the case.”
determine
quoted
The last
instruction is in accord with certain dicta
People
(1945),
Cal.App.2d 606,
in
71
624
Gordon
[163
[actually
pretense upon
P.2d
the false
the con-
which
110]
promise;
misrepre-
depended
viction
was not a mere
it was
stage
sentation as to the character and value of land and the
development
production4],
People
its
for oil
v. Mason
(1948),
Cal.App.2d 445,
[here, likewise,
P.2d
60]
pretense depended
on mere promise;
the false
it was a
existing
misrepresentation
pertinent
as to
to the value
facts
stock,
drilling project
company,
oil
financial
its
purpose
letting
of the defendant
the victim
status, and
in
“get
of Enders”],
in because she was a friend
cited
this
People
(1950),
court
Jones
Cal.2d
interjected by way
353],
proposition (also
P.2d
entirely unnecessary
decision)
“a
to the
dictum
present
if unconditional and made
intention
promise,
without
performance,
fraud.”
In the
will constitute actionable
misrepresentations
case the actual
are stated
Jones
testimony
appears from the
. . .
court as follows: “It
ground
holding
Appeal
4The true
of the District Court of
peculiar
"promises”
the
from the
sense
which it used the word
is evident
following expression (p.
Cal.App.2d)
624 of 71
: "The ‘assur
‘guarantees’
profitable
ances’ and
of immediate
sales or leases for the
promises.
promise
vendees were of the nature of
If a
is unconditional
performance
and is made without intention of
it is
.
actionable fraud .
.
jury
good
If the
determined that
knew or had
reason to be
defendants
they
selling
productive
lieve that the acres
were outside of the
limits
they
of an oil field or
had no belief that
the land sold was under
quantities
lain
oil in
commercial
. . . then
were warranted
finding
pretense.”
that defendants
committed theft
defendant
induced their
complaining
ad-
[the
witnesses’]
money
vancements of
upon
following representations:
That
gold
mine,’
business was ‘a
‘making nothing
but
money,’ and ‘there wasn’t a chance of losing’;
equip-
that the
ment
the firm
paid for’;
‘was all
money
and that more
equipment.”
needed
secure new
All of
representa-
such
obviously
tions
alleged existing
related to
facts, and were
false. There
wholly
are similar
unnecessary expressions in
People
(1943),
v. Ames
The traditional view
representation
must be of
present
past
a
or
fact, and
promise
that mere
perform
an act in
support
the future will not
a conviction,
expressed
is
following
People
cases:
Wasservogle
v.
(1888), 77 Cal.
; People
174
P.
(1913),
v.
22 Cal.App.
Green
[19
270]
45, 48, 51
P.
reversed
[133
because de
334]
[conviction
fendant’s
part
statements which induced victim to
with prop
erty were promises,
misrepresentations
not
fact];
People
(1915),
v. Kahler
According to an annotation jurisdictions in most “The rule is established 833, 835, well obtaining money or other valuable that the criminal offense upon present thing by pretense predicable false comply promises his or intention of the defendant not The annotation also col- as to his future acts.” statements which the view that comparatively lects the few cases take promise misrepresentation present is a as to the fact a false of mind. promisor’s state supported Although I would follow the traditional rule authority great weight of both in California and else- suggested by way where, rather than that innovated mentioned I do not eases, dicta in the believe that here giving promise may of the instruction to the effect that a requires pretense representations a reversal. The existing defendant as to facts and as future matters were inextricably confidently interwoven; may it be inferred that jury representations made; believed that such all upheld the conviction can be on the basis of the factual mis- promissory representations and the statements can be con- simply corroborative; they part sidered are in truth but a gestae. evidence, no reasonable res On view *31 and the can it be said together, instructions read that =there justice. miscarriage has been judgment
I think that the should be affirmed but that unnecessary highly controversial discussion which is to the establishing California, and is aimed at a new rule decision contrary weight authority generally here else- to the where, should be eliminated.
Carter, J., concurred. rehearing denied March Appellant’s petition opinion J., Schauer, Carter, J., 1954. granted. petition should