281 P. 404 | Cal. Ct. App. | 1929
The defendants J.F. Bryant and E.I. Bryant were convicted on six counts of an indictment charging them and Marion R. Bryant with obtaining money by false pretenses, and acquitted on one count. The jury found the defendant Marion R. Bryant not guilty. Since this appeal from the judgments pronounced upon the verdicts and the order denying the motion for a new trial was perfected the appellant E.I. Bryant has died and the appeal by him has been dismissed, leaving as the only appellant J.F. Bryant.
Before reciting the facts in general we shall consider the statement of appellant that defendants should have been discharged because they were never arraigned or given an opportunity to plead. The situation which counsel contends justifies this assertion is as follows: The original indictment was returned by the grand jury September 26, 1927. *86
On November 22, 1927, the district attorney was permitted to file amendments to the indictment. Reading of the same was waived by counsel and the trial of the cause was continued until December 14, 1927. Two other continuances carried it over until January 16, 1928. As soon as the jury was sworn to try the cause, or to phrase it differently, as soon as the defendants were placed in jeopardy, counsel for the defense made a motion to discharge the defendants and dismiss the jury on the ground that they had never been arraigned or plead to the amended indictment. The amendments which had been permitted were great in number, but all of them may be illustrated by one example. The indictment (after charging the defendants with the offense of obtaining money by false pretenses) with the words or letters omitted by the amendments being indicated by a line of obliteration and the inserted words by italics, alleged that the defendants "with intent to defraud Mrs. Eliza Keogh" represented to her "that one J.E. Hopkins had purchased from them, the said J.F. Bryant, E.I. Bryant and Marion R. Bryant, twelve lots in Blocks 1 and 2, in Tract 1763 in the City of Ontario, State of California; that the said J.E. Hopkins had purchased the said lots for $4500.00 each; that the said J.E. Hopkins had paid $2500.00 down upon each of said lots and had given them, the said J.F. Bryant, E.I. Bryant and Marion R. Bryant, a trust deeds for $2,000.00 each as the balance of the purchase price of each of said lots; that this acertain trust deed covered by one of said lots was worth the sum of $2,000.00, but that they would discount the one of
said trust deeds to her, the said Mrs. Eliza Keogh, for the sum of $1200.00; that there was a great demand for housing in this locality, and that a bungalow court was being built upon said lots; . . ." [1] The question raised by counsel necessarily involves the right of the court to permit the amendments illustrated by the foregoing instance, without resubmission thereof to the grand jury. Section
Counsel relies upon such authorities as People v. Monaghan,
Without detailing a considerable mass of testimony it is well to state at this juncture that the evidence discloses a very crude plan for the speedy and unlawful accumulation *89 of money. The defendants owned quite a number of lots in a comparatively new subdivision in Ontario. Conveyances were made to some person who was agreeable to act as a mere dummy, of one or more lots. The vendee in each instance then signed a note and trust deed, in most cases leaving the name of the beneficiary blank. The defendants, particularly E.I. Bryant, now deceased, advertised the trust deed or deeds for sale, agreeing with the prospective purchaser of the note to make a substantial reduction. Although the prosecution's testimony discloses that the lots were of little value, ranging between $250 and $300, the statement was freely made by E.I. Bryant that the lots had sold for $4,500 apiece; that the purchaser had paid $2,500 in cash and given the note and trust deed for the balance; in one instance it was said that the lot was worth $5,500 and that a deal was pending in escrow for the erection of a large building on it. Similar statements were made to a Mrs. Lou Johnson whose office was on the same floor of the building as that of the defendants for the purpose of securing her to aid them in the disposal of the notes and trust deeds.
[2] This last statement brings us to the point where we may discuss the next contention of appellant. He asserts that the court committed error when it permitted Mrs. Johnson to testify that she had transmitted to the prospective purchaser the representations made by the defendant E.I. Bryant for the purpose of inducing the sale. The objection that these statements were hearsay is not well founded — the witness, employed as an agent for the purpose, and paid a commission, acted only as the vehicle for conveying the information imparted to her by the defendant.
[3] The next objection of appellant requiring notice is to the effect that certain escrow instructions should not have been admitted because at the request of Mrs. Keogh, Mrs. Johnson signed them for and on behalf of the former. Appellant apparently ignores the very potent fact that they were also signed by him. This assertion of error on the part of counsel is on somewhat the same footing and apparently involves the same lack of merit as is obvious in their contention that a check for $1500 was improperly admitted on account of a lack of foundation when subsequently *90 in the trial it was stipulated that the defendant E.I. Bryant had received the amount which it was sought to prove he had received by the check.
[4] The appellant assigns ten different instances of misconduct on the part of the district attorney. We have carefully examined each of them and find that the court on many occasions advised the jury to disregard the remarks of counsel; that at no time did the deputy who was in charge of the trial make any remarks which could have affected the verdict of the jury without an admonition from the trial judge. In those instances where he failed to advise them, either counsel for the defense failed to ask that the remarks be stricken and the jury admonished, or the remarks were entirely harmless and in keeping with the line of duty of the presecutor. We find no error in any of the assignments.
[5] Also the appellant asserts that the judge was guilty of misconduct seven different times during the course of the trial. It is a complete answer to say, assuming that the court made remarks which were not proper, that counsel never at any time called the attention of the judge to the situation or gave him any opportunity to correct the harm if any was done. Furthermore, there is not only no indication that the judge would have refused to avoid all error with its possible effect upon the jury, but there is abundant support in the record for the belief that he would most earnestly have endeavored to prevent any remark of his from influencing the jury in the slightest degree. In fact he told them several times that they were to pay no attention to the discussions between counsel and himself. Nor is there anything to indicate that any irreparable harm was done. Under such circumstances and by virtue of a well-known rule of law, appellant may not be heard to complain.
[6] The next point urged by appellant as a ground for reversal is that the trial court erred in the giving and refusal of certain instructions relating to conspiracy. Counsel labor under the misapprehension that a conspiracy may not be proved to exist between two defendants for the purpose of establishing the fact that the act of one in furtherance of the conspiracy is in legal contemplation, the act of both and for which both may be convicted. They *91
have the erroneous notion that when a conspiracy to commit a criminal act is shown to exist the conspirators may only be convicted of the criminal conspiracy and not of the crime actually committed. Such is not the law. The books abound with cases where conspiracies have been proved and where the jury under appropriate instructions must have found, of necessity, the existence of a conspiracy in order to have returned a verdict of guilty as to one or more of the defendants. It is sufficient for our purposes to make reference to People v. Matthew,
Counsel also urge the refusal of the court to give an instruction which would have had the effect of telling the jury that the testimony of Mrs. Johnson was improperly admitted and that the representation which she repeated or conveyed to two purchasers of trust deeds could not be "considered as against the defendants." What we have already said upon this question in discussing its admissibility disposes of the contention.
[7] Counsel also assert that the action of the court in denying probation to appellant was error, and rely upon People
v. Jones,
[8] There are a number of other assignments of error, some wholly without merit and many others unsupported by either argument or citation of authority. We have called the attention of the profession to the rule that we are not burdened with the responsibility of undertaking their labors in this regard so frequently of late, that we *92 now deem it appropriate to say that unless counsel refrain from mere assignments of error without anything of a substantial character to indicate the sincerity of their belief in the error assigned, more drastic measures will of necessity be adopted to put an end to the practice.
Judgment and order affirmed.
Works, P.J., and Craig, J., concurred.
A petition by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on October 31, 1929.