148 P. 532 | Cal. Ct. App. | 1915
Decision was heretofore made herein affirming the judgment, and order denying a motion for a new trial, both of which had been appealed from. Thereafter a *737 rehearing was granted. After argument upon the rehearing and consideration of the various matters urged at that argument, the court is satisfied to re-adopt the opinion heretofore rendered herein as to its main text, with the addition of some further discussion as to certain of the points urged by appellants as grounds for their claim for a reversal. The opinion referred to is as follows:
"Appeal from a judgment of imprisonment and order denying a motion for a new trial.
"Defendants were charged by an information of the district attorney with the crime of conspiracy as defined in section
"Appellants contend that the information did not state sufficient facts to constitute a public offense. It is argued that 'there was no attempt to charge or prove that a conspiracy existed to defraud the complaining witness by any means which were in themselves criminal.' It must be said, we think, that the information did contain allegations of pretenses which were actionable and which, if they resulted in the accomplishment of the designs of the persons making them, would have made the perpetrators subject to prosecution for having fraudulently obtained the property of another, as that crime is described in section
"The prosecution was not required to prove all of the false pretenses alleged. Proof of any one of the material matters charged, other essential facts being established, would support a conviction. (People v. Smith,
"The evidence introduced by the people showed that the business concern of which defendants were the active managers and operators was engaged in the fraudulent enterprise. The methods adopted to induce credulous persons to pay money in the belief that they were securing valuable lots by merely paying the cost of title certificates and deeds, were of a dishonest *740
character throughout. Nor did either of the appellants disclaim responsibility for the misleading statements made by their agents as to the character of the land. There was testimony showing, as has been before referred to, that both affirmed that the land was level and of good character. The evidence showed that these statements were false and that a lot of the size and description which it was proposed to transfer to complainant would have been practically worthless; its value would be a matter of cents and not dollars. The claim that the court committed prejudicial error in allowing proof of statements of one of the appellants made outside of the presence of his alleged co-conspirator is not sustained by the facts. The statement of a co-conspirator made outside of the presence of his confederate is always admissible after proof has been made of the existence of the conspiracy. This proof may be by a showing of circumstances only, and where there is some evidence pointing in that direction of a substantial nature, it is not for this court to question the sufficiency thereof. As was said in People v. Donnolly,
"It was competent to allow proof of similar transactions had by appellants and their agents with persons other than the complainant. (People v. Whalen,
"The instructions as given by the court must be considered in their entirety, and when so considered they seem to present a very fair statement of the law applicable to the case. In portions thereof the jury was distinctly advised that the allegations of the information must be proved before a conviction could result, and other portions of the instructions which might seem to advise that evidence to justify a conviction could be gathered from proof of facts not included within the charge, do not bear that interpretation when carefully analyzed."
To the foregoing opinion a further discussion of propositions especially argued on the rehearing may be added:
We do not believe it was essential to the statement of a good charge to aver in the information that the complainant was actually possessed of the money out of which she might be defrauded. Counsel is correct in his statement that the information did not charge that the complainant actually parted with property, although the proof showed that she did. It was only necessary to charge the agreement of conspiracy, together with a description of some overt act done in pursuance thereof — not that the crime agreed upon was actually accomplished. It has been stated in the foregoing that we view the evidence as being entirely sufficient to sustain the charge contained in the indictment. That the evidence was circumstantial in part is not to say that it was insufficient; for the proof of a conspiracy, which is usually hatched under cover and out of the view of others than those *742
directly concerned, is perhaps most frequently made by evidence of a chain of circumstances only. (People v. Stokes,
The question as to the jurisdiction of the superior court over the offense is made the subject of much earnest argument on the part of appellants.
The crime of conspiracy is a misdemeanor punishable by a fine not exceeding one thousand dollars, or imprisonment in the county jail not exceeding one year, or by both. (Pen. Code, sec.
For the reasons given, the judgment and order are affirmed.
Conrey, P. J., and Shaw, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 12, 1915. *744