THE PEOPLE, Plaintiff and Respondent, v. JOHN MARSH et al., Defendants and Appellants.
Crim. No. 7178
In Bank
Nov. 16, 1962.
58 Cal. 2d 732
Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and Jack K. Weber, Deputy Attorney General, for Plaintiff and Respondent.
PETERS, J.- Defendants Marsh, Crane and Bateson were charged with attempted grand theft, conspiracy to commit grand theft, and conspiracy to violate section 2141 of the Business and Professions Code, the section prohibiting the practice of medicine without a license. They were convicted of all three offenses. Defendant Bateson has not appealed. Marsh and Crane appeal from the judgment of conviction and from the order denying their motion for a new trial.
The trial was a protracted one. The prosecution produced substantial evidence that defendants, none of whom possessed a medical license, worked together to obtain money from the sick and the neurotic on the false representation that the electric machines they possessed could cure almost any ailment. Most of the vital evidence was secured by undercover agents of the Food and Drug Administration, and is in the form of tape recordings of conversations between the defendants and the agents. This evidence, because of its nature, is uncontradicted. The prosecution evidence is overwhelming that such representations were made, that they were false, and that money was obtained from various persons based on such representations. Although the defendants denied that they “sold” their machines, and claimed that they only loaned them, and that the payments were donations to their foundation, or rental for the use of the machines, or for instruction in how to use them, the evidence also shows that the form of the transaction
The first two counts of the indictment-attempted grand theft and conspiracy to commit grand theft-admittedly grew out of a connected series of transactions. In each instance, obtaining money by false representations is the form of theft relied on by the prosecution, and the case was submitted to the jury on that theory. Under section 484 of the Penal Code an essential element of that offense is that defendant had the specific intent to defraud. (See People v. Simms, 144 Cal.App.2d 189, 194 [300 P.2d 898].) Under this section, even if the defendants made false representations but made them in the bona fide belief, based upon reasonable grounds, that they were true, no offense was committed. In other words, a conviction of theft based on false representations cannot be sustained if the false representations were made in the actual and reasonable belief that they were true. The burden of proof on this issue is on the prosecution (People v. Ashley, 42 Cal.2d 246, 264 [267 P.2d 271]). It follows, as a matter of course, that a defendant is entitled, in such a case, to introduce proper evidence that tends to establish that he did not, in fact, possess the intent required by the code section. Such evidence may be introduced either to controvert the evidence produced by the prosecution, or to establish affirmatively the lack of the required criminal intent. It is elementary that if the prosecution can introduce evidence of a required specific intent, the defendant must be given the equal privilege of showing the lack of such intent (People v. Becker, 137 Cal.App. 349, 352 [30 P.2d 562]).
In the instant case the conspiracy, the making of the false representations, and the obtaining of money by the defendants was proved by overwhelming evidence. The defendants’ defense was twofold: (1) That the representations were true in that the machines possessed the curative powers represented, and (2) that even if the representations made were false they were believed by defendants to be true; that they were based upon certain reports received from certain doctors and scientists; that reliance on such reports was rea-
These rulings were clearly erroneous, and under the circumstances, prejudicial. The gist of hearsay is that it is an out-of-court utterance offered to prove the truth of what is asserted in the utterance. But here the evidence was offered not to prove the truth of the statements, but to show the mental state of the defendants, i.e., that they believed the machines did cure. Such letters, reports, and conversations offered for such purpose are not hearsay and are admissible. McCormick, Evidence (1954) states the proper rule as follows, at pages 464-465: “When it is proved that D made a statement to X, with the purpose of showing . . . the information which X had as bearing on the reasonableness or good faith of the subsequent conduct of X, the evidence is not subject to attack as
California is in accord with this general rule. Thus, it has consistently and properly been held that the statements a police officer relies upon to make an arrest are admissible against hearsay objections, not to prove the truth of such statements, but to show the officer‘s state of mind (probable cause) in making the arrest. (People v. Fischer, 49 Cal.2d 442, 446 [317 P.2d 967]; People v. King, 140 Cal.App.2d 1, 5 [294 P.2d 972]; People v. Paul, 147 Cal.App.2d 609, 618 [305 P.2d 996].) In People v. Vogel, 46 Cal.2d 798 [299 P.2d 850], it was held that the defendant‘s good faith belief that he was divorced at the time of his second marriage was a good defense in a bigamy prosecution. It was there held to be prejudicial error not to admit defendant‘s testimony as to what his first wife had told him.
People v. Rosson, 202 Cal.App.2d 480 [20 Cal.Rptr. 833], is also in point. There a conviction of grand theft was reversed because the trial court improperly excluded evidence of a witness‘s efforts to return the automobile involved at defendant‘s request, which testimony if admitted and believed would have negated the specific intent required of the crime. The excluded testimony was held not to be hearsay.
In Laird v. T. W. Mather, Inc., 51 Cal.2d 210, 220 [331 P.2d 617], it was held that an out-of-court conversation concerning a previous accident was admissible to show that the defendant had knowledge of a dangerous condition. Also in point is the case of Smith v. Whittier, 95 Cal. 279 [30 P. 529]. One of the issues in that personal injury action was the defendant‘s knowledge concerning the dangers connected with an elevator. This court held that the defendant could be asked to repeat conversations he had had concerning the elevator‘s operation. At page 293 the court said that this out-of-court conversation was not “within the rule which excludes hearsay. . . . If the fact sought to be established is, that certain words were spoken, without reference to the truth or falsity of the words . . . the testimony of any person who heard the statement is original evidence, and not hearsay.”
In State v. Ditzel, 77 Wyo. 233 [311 P.2d 961], an embezzlement case, the court held it was reversible error for the trial court to exclude evidence offered by defendant as to what his employers told him to do with the allegedly embezzled property. This went to negating the intent required for the crime and was not hearsay.
Rand v. Commonwealth, 176 Ky. 343 [195 S.W. 802] involved a theft from the state accomplished by false pretenses. The court held that various documents were admissible as evidence bearing on the defendant‘s good faith in receiving money from the state. If defendant believed he was entitled to the money then he did not have the knowledge of the falsity of his representation, and there could be no criminal conviction for false pretenses. The court held that “whatever tends to show good faith on the part of appellant or want of good faith upon his part is competent evidence to go to the jury.” (195 S.W. at p. 809. See also State v. Sherman, 183 Iowa 42 [166 N.W. 674, 679-680] [letters admissible]; State v. Rivers, 58 Iowa 102 [12 N.W. 117, 120] [records and account books admissible]; State v. Chingren, 105 Iowa 169 [74 N.W. 946] [conversations].)
In Zenik v. O‘Brien, 137 Conn. 592 [79 A.2d 769], a malicious prosecutions action, the pivotal question was whether the defendant‘s belief in plaintiff‘s guilt was reasonable. The court held that conversations defendant had heard were admissible to show on what he formed his opinions as to the plaintiff‘s guilt. (See also State v. Bixby, 27 Wn.2d 144
It is true that defendants did not offer to authenticate these letters, reports and conversations. This was not significant. The due execution of the proffered testimony was not involved. The issue was, did defendants receive this material, and if so what effect, if any, did it have on their minds. As was said in People v. Adamson, 118 Cal.App.2d 714, 720 [258 P.2d 1020], referring to a letter offered to show motive or intent: “The authenticity of the letter would seem to have no bearing on its intended use. Whether it be genuine or a forgery, it was merely offered to show that Mr. Pugh was motivated by it in his actions.” (See also 7 Wigmore, Evidence (3d ed. 1940) pp. 574-575.)
Thus error was committed in excluding the proffered evidence. This error was emphasized because the instructions given by the trial court correctly told the jury that defendants’ defense was a good faith belief in the curative powers of the machines, but the rulings on the admissibility of evidence prevented the introduction of the very evidence defendants relied on to support their contention of good faith belief. Thus the jury was instructed, “To constitute the crime of theft by obtaining property by false pretense, the false pretense must be a fraudulent representation of an existing or past fact by one who knows it not to be true, or who makes the representation recklessly and without information justifying the belief that it is true. . . .”1 (Emphasis added.) The jury was then instructed:
“In determining whether a representation was made with knowledge of its falsity, or recklessly, you must taken [sic] into consideration any evidence showing what information the defendant making such representation had and on which he relied in making such representation. . . . [I]f the defendant did believe this information and believed his representations to be true, then such defendant cannot be found guilty of either attempt to commit grand theft or conspiracy to commit grand theft based upon the making of that representation.
Thus, although the jury was correctly told that the defendants were only guilty if the representations made were not
But this analysis does not apply to the conviction under count 3 of the indictment, conspiracy to violate
The trial court was in error in instructing the jury on what constituted the necessary criminal intent to constitute a conspiracy to violate
“Criminal intent is present whenever a person knowingly and voluntarily performs an act or acts which the law declares to be a crime. It does not require a knowledge that such conduct is wrong and may even exist in the presence of a belief that an act is right and lawful.
“This instruction applies only to the crime alleged in Count 3 of the indictment and has no application to the offenses alleged in Counts 1 and 2 of the indictment of this case.
“In the case of certain crimes it is necessary that in addition to the intended act which characterizes the offense, the act must be accompanied by a specific or particular intent without which such a crime may not be committed.
“Thus in the crime of theft, a necessary element is the existence in the mind of the perpetrator of the specific intent to defraud, and unless such intent so exists that crime is not committed.
“This instruction applies to the crimes alleged and charged in Counts 1 and 2 of the indictment and not to the offense alleged in Count 3 of the indictment.”
“The word ‘wilfully,’ when applied to the intent with which an act is done or omitted and as used in these instructions, implies simply a purpose or willingness to commit the act or to make the omission in question. The word does not require in its meaning any intent to violate law, or to injure another, or to acquire any advantage.
“And this instruction, likewise, ladies and gentlemen, applies only to the crime alleged in Count 3 of the indictment.”
These instructions were erroneous. By them the jury was instructed that it could convict defendants of conspiracy to violate
These instructions would have been proper if count 3 merely charged a violation of
For these reasons it is often said that conspiracy is a “specific intent” crime (Harno, Intent in Criminal Conspiracy (1941) 89 U.Pa.L.Rev. 624, 636; Perkins, Criminal Law (1957) p. 544). This specific intent of the conspirators must be proved in each case by the prosecution and will not be presumed from the mere commission of an unlawful act (People v. Bowman, 156 Cal.App.2d 784, 797 [320 P.2d 70]; People v. Maciel, 71 Cal.App. 213 [234 P. 877]). Therefore, even though a conspiracy has as its object the commission of an offense which can be committed without any specific intent, there is no criminal conspiracy absent a specific intent to violate the law. That is, to uphold a conviction for conspiracy to commit a “public welfare offense” there must be a showing that the accused knew of the law and intended to violate it. (Commonwealth v. Benesch, 290 Mass. 125 [194 N.E. 905, 910]; People v. Flack, supra, 26 N.E. 267; People v. Powell, 63 N.Y. 88, 92; Mitchell v. State, 248 Ala. 169 [27 So.2d 36]; Landen v. United States, 299 F. 75; 72 Harv.L.Rev. 920, 936.)
The California cases are in accord with this position. In People v. Bowman, supra, the defendants were charged with conspiracy to violate
Thus, in reference to count 3 (conspiracy to violate
It is also claimed that error was committed during the cross-examination of Marsh‘s character witnesses. Marsh called four character witnesses who testified as to his good reputation in the community for “truth, honesty and integ-
It is, of course, within the ambit of proper cross-examination of a character witness to inquire, in good faith, whether the witness has heard of specific misconduct of the defendant inconsistent with the trait of character testified to on direct (People v. McKenna, 11 Cal.2d 327, 335-336 [79 P.2d 1065]; People v. Gordan, 103 Cal. 568, 574 [37 P. 534]; 3 Wigmore, Evidence (3d ed. 1940) pp. 617-624). But, since such cross-examination tests the witness‘s knowledge of the defendant‘s reputation, it is elementary that the misconduct inquired of must be inconsistent with the character traits attested to on direct (McCormick, Evidence (1954) p. 335, fn. 14). In People v. Roberson, 167 Cal.App.2d 429, 431 [334 P.2d 666], it was held that to examine a witness who testified to the defendant‘s reputation for truth and veracity, about defendant‘s narcotic and petty theft convictions, was improper. These crimes were not inconsistent with his reputation for truth and veracity. In Kennedy v. State, 150 Tex. Crim. 215 [200 S.W.2d 400], character witnesses for the defendant attested his reputation for being a quiet, law-abiding citizen and also for his reputation for truth and veracity. The Texas court held that “as there was placed in evidence only his reputation as a peaceable and law-abiding citizen, the fact that he had or that witness had heard of illicit relations by him with women in the neighborhood was not inconsistent with that reputation.” (200 S.W.2d at p. 403. See also People v. Tucker, 164 Cal.App.2d 624 [331 P.2d 160].) This same reasoning might be applied to Marsh‘s excommunication from the Mormon Church on moral charges. That is not necessarily a trait inconsistent with the witnesses’ testimony that his reputation in the community for “truth, honesty and integrity” was good.
Moreover, the form of the qustions [sic] was incorrect. It is generally accepted that although the district attorney can ask the character witness, “Have you heard . . .” he cannot ask of the witness, “Did you know . . . ?” (People v. Neal, 85 Cal.App.2d 765, 769-771 [194 P.2d 57]; People v. McDaniel, 59 Cal.App.2d 672 [140 P.2d 88]; McCormick, Evidence (1954) p. 335; 71 A.L.R. pp. 1543-1546.) The witness is testifying to the defendant‘s reputation in the community. The district attorney may ask the witness whether he has heard of some act
These errors, however, were not prejudicial in this case. The vice of this type of cross-examination is that it brings before the jury, through an indirect type of hearsay, rumors of defendant‘s misconduct (3 Wigmore, Evidence (3d ed. 1940) p. 624; McCormick, Evidence (1954) p. 336). In the instant case, however, the story of Marsh‘s fall from the grace of the Mormon Church had already been introduced long before these character witnesses testified. Therefore, the error could not have been prejudicial.
Defendants next contend that there has been no proof of overt acts done to effect the object of the conspiracy charged in count 3. One of the overt acts charged is that defendants “sold” the machines in question. As is usual in such cases, the conspiracy was established by circumstantial evidence (People v. Steccone, 36 Cal.2d 234, 237-238 [223 P.2d 17]). Of course, the overt acts of one defendant are binding on the others (People v. Pacheco, 194 Cal.App.2d 191, 196 [14 Cal.Rptr. 840]). The jury was not required to accept defendants’ story that they did not “sell” the machines, or “give” treatments. The evidence was sufficient to warrant the jury in concluding that the defendants’ characterization of their operation as a “loan” or “donation” was a mere subterfuge to avoid the law, and that what defendants called a “demonstration” was in reality a “treatment,” and that a “loan for a donation” actually was a “sale.”
The defendant Crane contends that when the state agents arrested him at his home they ransacked his laboratory and confiscated property, much of which was not related to the charges brought against him. By this claimed illegal search and seizure all defendants assert they were deprived of evidence needed at their trial. There is no merit to this contention. Defendants admit that none of this property was introduced into evidence by the People. That being so, the claimed illegality of the search and seizure offers the defendants no ground on which to attack the conviction. (People v. Combes, 56 Cal. 2d 135, 146 [14 Cal. Rptr. 4, 363 P.2d 4]; People v. Valenti, 49 Cal.2d 199, 203 [316 P.2d 633]; People v. Schmitt, 155 Cal.App.2d 87, 102-103).
The other contentions of error are lacking in substantiality and need not be separately discussed.
The judgment and order appealed from are reversed insofar as they relate to the two counts involving attempt or conspiracy to commit grand theft, but are affirmed insofar as they relate to the count involving conspiracy to commit a violation of
Gibson, C. J., Traynor, J., and Tobriner, J., concurred.
SCHAUER, J., and McCOMB, J., Concurring and Dissenting.-Applying the rules of law governing appellate review we would affirm the judgment in its entirety.